EXHIBIT 10.11
AMENDED AND RESTATED
SPLIT-DOLLAR AGREEMENT
AGREEMENT (this "Agreement"), dated as of August 1, 2001, by and
between CONCORD EFS, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes called the "Corporation"),
with the corporate headquarters located at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxx 00000, and XXXXXX X. XXXXXX, an individual resident of the
State of Pennsylvania (hereinafter called the "Owner").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Corporation and the Owner entered into that certain
Split-Dollar Agreement, dated as of August 1, 2000 (the "2000 Agreement"), which
provided for a "split-dollar" arrangement with respect to a particular life
insurance policy identified in the 2000 Agreement (the "2000 Policy");
WHEREAS, pursuant to Section 8.4 of the 2000 Agreement, the Corporation
and the Owner wish to amend and restate the 2000 Agreement to provide for
additional insurance coverage on the Owner's life to be owned by the Owner
thereunder;
WHEREAS, the Owner continues to be a valued officer and employee of the
Corporation and the Corporation desires to retain him in such capacities;
WHEREAS, as an inducement to such continued employment, the Corporation
desires to assist the Owner with his personal life insurance program by entering
into this Agreement with the Owner;
WHEREAS, the Corporation has determined that this assistance can best
be provided under a "split-dollar" arrangement and the Owner has, under the 2000
Agreement, applied for
1
Insurance Policy No. 1Y000488 (the "2000 Policy") issued by The New England Life
Insurance Company (the "Insurer") in the face amount of $1,249,766 on the
Owner's life;
WHEREAS, the Owner has, under this Agreement, applied for Insurance
Policy No. 1Y200628 (the "2001 Policy," and collectively with the 2000 Policy,
the "Policy") issued by the Insurer in the face amount of $5,381,621 on Owner's
Life; and
WHEREAS, the Corporation and the Owner agree that the Policy shall be
subject to this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Corporation and the Owner hereby mutually covenant and
agree as follows:
Section 1. Purchase of the 2001 Policy and Term of Funding Period
1.1 The Owner has previously purchased the 2000 Policy subject to the
2000 Agreement. The Owner will purchase the 2001 Policy contemporaneously with
the execution of this Agreement. The Corporation and the Owner agree that (i)
they will take all necessary actions to cause the 2001 Policy to be issued to
the Owner and cause the Policy to conform to the terms of this Agreement, and
(ii) the Policy will be subject to the terms and conditions of this Agreement
and the Collateral Assignment, as that term is defined in Section 3.2 hereof.
1.2 The term during which the Corporation will fund the 2000 Policy
under this Agreement shall commence on August 1, 2000 and shall end on the
earlier of August 1, 2010, and the term during which the Corporation will fund
the 2001 Policy under this Agreement shall commence on August 1, 2001, and shall
end on the earlier of August 1, 2011, respectively, or the normal retirement
date of the Owner, whichever shall first occur (collectively, the "Term"). For
purposes of this Section 1.2, the term "normal retirement date" means the latter
of (i) the date of
2
the 65th birthday of the Owner or (ii) the date of the tenth anniversary of the
date of hire of the Owner by the Corporation.
Section 2. Payment of Premiums and Information Reporting
2.1 During the Term, the Corporation agrees to pay all premiums due
on the Policy to the Insurer pursuant to the terms of the Policy, provided,
however, that the Corporation agrees to pay an amount to the Insurer on the 2000
Policy not to exceed $75,000 per year and on the 2001 Policy not to exceed
$250,000 per year. The Corporation shall, upon request of the Owner, promptly
furnish the Owner evidence of timely payment of such premiums.
2.2 During the Term, in order to facilitate the payment of premiums
on the Policy, it is agreed that the Corporation (a) annually forward on a
timely basis the amount of premium required under this Agreement and pursuant to
the terms of the Policy to the Insurer, and (b) annually furnish the Owner
information concerning the economic benefit reportable by the Owner as gross
income for federal income tax purposes.
2.3 The Corporation and the Owner believe that neither the 2000
Agreement and the 2000 Policy nor this Agreement and the 2001 Policy are subject
to Internal Revenue Notice 2001-10, 2001-5 IRB 459 (the "Notice").
Notwithstanding the foregoing, if the parties hereto later determine that either
the 2000 Policy or the 2001 Policy are subject to the Notice, or the Internal
Revenue Service issues further guidance concerning the federal income taxation
of split-dollar arrangement subsequent to the date of this Agreement, the
Corporation and the Owner reserve the right to amend, restate and modify the
Agreement pursuant to such further guidance.
3
Section 3. Policy Ownership and Repayment of Premium Payments
3.1 The Owner shall be the sole and absolute owner of the Policy and
may exercise all ownership rights granted to the owner thereof by the terms of
the Policy, except as may otherwise be expressly provided herein. All incidents
of ownership in the Policy are expressly retained by the Owner, including, as
example and not as a limitation of the foregoing, the right to change the
beneficiary of the Policy, the right to borrow on the security of the Policy
(but only to the extent of the difference between (a) the cash value of the
Policy and (b) the cumulative amount of the Corporation's interest in the Policy
in excess of the amount of all outstanding prior loans to the Corporation made
against the Policy); the right to pledge or assign his interest in the Policy
for such loans or advances; the right, in the event of a termination of this
Agreement, to realize against the cash value of the Policy (to the extent such
cash value exceeds the Corporation's interest therein); the right, in the event
of the Employee's death (as defined in Section 8.2 hereof), to exercise
settlement options and realize against the proceeds of the Policy to the extent
said proceeds exceed the Corporation's interest in the Policy; and the right,
subject to the interest of the Corporation to be reimbursed for its interest in
the Policy, to surrender or cancel the Policy. The Owner has the right to assign
his ownership rights to any person or entity he, in his absolute discretion,
chooses, but such an assignment will be subject to the Collateral Assignment, as
that term is defined in Section 3.2 hereof, to the Corporation.
3.2 Except as may otherwise be expressly provided herein, the
Corporation shall have no rights, interests or privileges of ownership in the
Policy. To secure the repayment to the Corporation of the amount equal to the
aggregate premiums paid by it as of the date of the Employee's death (as defined
in Section 8.2 hereof) reduced by the sum of (i) any amounts previously received
by the Corporation from or to the credit of the Owner as a repayment of the
4
liabilities created hereunder and (ii) any outstanding indebtedness incurred by
the Corporation and owed to the Insurer which was secured by the Policy,
including interest accrued thereon, the Owner has, contemporaneously herewith,
assigned an interest in the Policy to the Corporation as collateral (the
"Collateral Assignment"), substantially in the form attached hereto as
Exhibit A, which gives the Corporation the limited power to enforce its right to
----------
be repaid the amount due the Corporation under this Agreement. The Corporation
may neither have nor exercise any right as collateral assignee of the Policy
that could in any way defeat or impair the Owner's right to receive the net cash
surrender value of the Policy decreased by any outstanding Policy loans to him
on the death benefit proceeds of the Policy in excess of the amount due the
Corporation under this Agreement. The Collateral Assignment shall not be
terminated, altered or amended by the Owner without the express prior written
consent of the Corporation, except that the Owner may assign his ownership
rights to a third party, subject to the Collateral Assignment, as provided in
Section 3.1 hereof.
3.3 The Owner will not exercise any right under the Policy without
first giving the Corporation written notice of the Owner's intention to exercise
such right; provided, however, that a change of beneficiary having no effect on
the Corporation's status as a beneficiary shall not require such notice. The
Owner shall take no action with respect to the Policy that would in any way
compromise or jeopardize the Corporation's right to be repaid the amount due the
Corporation under Section 4.l(b) hereof, without the Corporation's express
written consent.
3.4 The Corporation may not, without the prior written consent of the
Owner, exercise its rights under the Policy, including, but not limited to, the
transfer or assignment of its interest in the Policy to any person or entity as
collateral.
5
3.5 (a) Within 60 days following the date of the termination of this
Agreement under Section 5 hereof, the Owner shall repay to the Corporation the
lesser of (a) the amount due the Corporation under Section 4.l(b) hereof, or (b)
the cash surrender value of the Policy plus the amount of any outstanding Policy
loans to the Owner, each determined as of the date of the termination of this
Agreement. Upon receipt of such amount, the Corporation shall release the
Collateral Assignment of the Policy, by the execution and delivery of an
appropriate instrument of release and shall be removed as beneficiary under the
Policy.
(b) If the Owner fails to repay the Corporation the amount specified in
Section 3.5(a) within the 60 day period referenced therein, the Owner shall
execute any and all instruments that may be required to vest ownership of the
Policy in the Corporation. Thereafter, the Owner shall have no further interest
in, or rights under, the Policy, or rights under this Agreement.
Section 4. Split of Death Benefit Proceeds
4.1 At the earliest time the life insurance proceeds become payable under
the Policy, the Corporation and the Owner agree the Corporation and the personal
representative of the Owner or the beneficiary or beneficiaries designated on
the Policy by the Owner if other than the estate of the Owner, as the case may
be, shall promptly take all action necessary to obtain payment of the death
benefit provided under the Policy from the Insurer of the amount payable under
the Policy, and payment of such death benefit will be divided and paid as
follows:
(a) The beneficiary or beneficiaries designated on the Policy by the
Owner as then in effect under the Policy shall receive an amount of such
death benefit payment equal to the product obtained by multiplying an
amount equal to $300,000, plus 3% per annum beginning with the year 2001,
times a factor of 5.0; and
6
(b) The Corporation, as collateral assignee under the Collateral
Assignment, shall receive an amount of such death benefit payment equal to
the aggregate premiums paid by it under this Agreement, but not to exceed
an amount equal to the balance of the payment of such death benefit, if
any.
4.2 It is agreed and understood that receipt by the Corporation of any
death benefit proceeds as a beneficiary under the Policy shall be considered a
repayment of the Corporation's premium payments under Section 4.l(b) hereof to
the extent of such proceeds.
Section 5. Termination of Agreement
Notwithstanding anything to the contrary herein, this Agreement shall
terminate on the first to occur of the following:
(a) Express cancellation of this Agreement by the Owner upon ninety
(90) days written notice to the Corporation;
(b) Lapse or termination of the Policy after mutual written consent of
the Owner and the Corporation to such lapse or termination; or
(c) Termination of the Owner's employment by the Corporation (other
than by reason of his death, disability or attaining normal retirement
age).
Section 6. Employee Retirement Income Security Act of 1974
6.1 For the purpose of the Employee Retirement Income Security Act of 1974
("ERISA"), the Corporation will be the named fiduciary (the "Named Fiduciary")
and the plan administrator (the "Plan Administrator") of the split-dollar life
insurance arrangement created by this Agreement (the "Plan") for which this
Agreement is hereby designated the written plan instrument.
7
6.2 The Corporation's Board of Directors may authorize a person or group of
persons to fulfill the responsibilities of the Corporation as Plan
Administrator. The Named Fiduciary or the Plan Administrator may employ others
to render advice with regard to its responsibilities under the Plan. The Named
Fiduciary may also allocate fiduciary responsibilities to others and may
exercise any other powers necessary for the discharge of its duties, to the
extent such exercise is not in conflict with ERISA.
6.3 The following claims procedures shall control the determination of
benefit payments under the Plan:
(a) Filing of a Claim for Benefits. Any insured, beneficiary or other
------------------------------
individual ("Claimant") entitled to benefits under the Plan or under the
Policy will file a claim request with the Insurer with respect to such
benefits (the "Claim for Benefits"). The Plan Administrator will, upon
written request of a Claimant, make available copies of any claim forms or
instructions provided by the Insurer or advise the Claimant where copies of
such forms or instructions may be obtained.
(b) Denial of Claim. A Claim for Benefits will be denied if the
---------------
Insurer determines that the Claimant is not entitled to receive such
benefits. Notice of denial shall be furnished to the Claimant within a
reasonable period of time after receipt of the Claim for Benefits by the
Insurer.
(c) Content of Notice. The Insurer shall provide to every Claimant who
-----------------
is denied a Claim for Benefits written notice setting forth, in a manner
calculated to be understood by the Claimant, the following:
8
1. The specific reason or reasons for the denial;
2. Specific reference to pertinent Plan provisions on which the
denial is based;
3. A description of any additional material or information
necessary for the Claimant to perfect the claim, and an explanation of
why such material or information is necessary; and
4. An explanation of the Plan's Claim Review Procedure as set
forth below.
(d) Claim Review Procedure. The purpose of the Claim Review Procedure
----------------------
is to provide a method by which a Claimant may have a reasonable
opportunity to appeal a denial of a Claim for Benefits to the Insurer for a
full and fair review. To accomplish that purpose, the Claimant or his duly
authorized representative:
1. May request a review upon written application to the Insurer;
2. May review pertinent Plan documents; and
3. May submit issues and comments in writing to the Insurer.
A Claimant (or his duly authorized representative) shall request a review
by filing a written application for review with the Insurer at any time
within 60 days after receipt by the Claimant of written notice of the
denial of his Claim for Benefits.
9
(e) Decision on Review. A decision on review of a denied Claim for
------------------
Benefits shall be made in the following manner:
1. The decision on review shall be made by the Insurer, who may
in its discretion hold a hearing on the denied claim. Such decision
shall be made promptly, and not later than 60 days after receipt of
the request for review, unless special circumstances (such as the need
to hold a hearing) require an extension of time for processing, in
which case a decision shall be rendered as soon as possible, but not
later than 120 days after receipt of the request for review.
2. The decision on review shall be in writing and shall include
specific reasons for the decision, written in a manner calculated to
be understood by the Claimant, and specific references to the
pertinent Plan provisions upon which the decision is based.
Section 7. Reorganization
7.1 Nothing contained in this Agreement shall prevent any consolidation or
merger of the Corporation with or into any other corporation or corporations
(whether or not affiliated with the Corporation, or successive consolidations or
mergers in which the Corporation or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance or lease (or successive sales,
conveyances or leases) of all or substantially all of the property of the
Corporation to any other corporation (whether or not affiliated with the
Corporation) authorized to acquire and operate the same and which shall be
organized under the laws of a State of the
10
United States or the District of Columbia; provided, however, and the
Corporation hereby covenants and agrees, that upon any such consolidation,
merger, sale, conveyance or lease, the due and punctual performance and
observance of all of the covenants and conditions of this Agreement to be
performed by the Corporation shall be expressly assumed, by written instrument
executed and delivered to the Owner, by the corporation or corporations (if
other than the Corporation) formed by such consolidation, or into which the
Corporation shall have been merged, or by the corporation or corporations which
shall have acquired or leased such property.
7.2 In case of any such consolidation, merger, sale, conveyance or lease,
and upon the assumption, as provided in Section 7.1 above, by the successor
corporation of the due and punctual performance and observance of all covenants
and conditions of this Agreement to be performed by the Corporation, such
successor corporation shall succeed to and be substituted for the Corporation
with the same effect as it had been named herein as the "Corporation". In the
event of any such consolidation, merger, sale, conveyance or lease, the party
named as the "Corporation" in this Agreement or any successor which shall
thereafter have become such in the manner prescribed in Section 7.1 above may be
dissolved, wound-up and liquidated at any time thereafter and such party shall
be released from its liabilities and obligations under this Agreement.
7.3 Except as provided in Section 7.2 above, upon any distribution of
assets of the Corporation, upon any dissolution, winding up, total or partial
liquidation of the Corporation, voluntary or involuntary, or upon any
reorganization or similar proceeding relating to the Corporation or any of its
property, whether, bankruptcy, insolvency or receivership proceedings, or upon a
general assignment for the benefit of creditors, or any other marshalling of the
assets and liabilities of the Corporation (each a "Winding Up"), the Corporation
shall, prior to the
11
taking of any corporate action in furtherance of any Winding Up, set aside in
trust, irrevocably, for the benefit of the Owner, sufficient funds to satisfy
all then-remaining obligations and liabilities of the Corporation under this
Agreement; and if such trust is not established for the benefit of the Owner,
then, upon any payment or distribution of assets of the Corporation of any kind
or character, whether in cash, property or securities, an amount sufficient to
satisfy such obligations and liabilities shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the Owner in satisfaction of the Corporation's obligations and liabilities
hereunder.
Section 8. Miscellaneous Provisions
8.1 This Agreement will be governed by and construed in accordance with the
laws of the State of Tennessee applied without giving effect to any
conflicts-of-law principles.
8.2 For purposes of this Agreement, the phrases, "Employee dies",
"Employee's death" or the "death of the Employee", mean the death of the Owner.
8.3 This Agreement shall not be deemed to constitute a contract of
employment between the parties, nor shall any provision hereof restrict the
right of the Corporation to discharge the Owner, or restrict the right of the
Owner to terminate employment.
8.4 This Agreement sets forth the entire agreement among the parties
concerning the subject matter hereof, and any amendment or discharge will be
made only in writing. This Agreement is binding on, enforceable by and against
and shall benefit the parties, their legal representatives, successors and
assigns. No beneficiary under the Policy shall obtain any vested right to have
this Agreement continued in full.
12
8.5 (a) Notwithstanding the provisions of this Agreement, any life
insurance company which has issued a policy of insurance which is subject to the
provisions of this Agreement, including, but not limited to, the Insurer and the
Policy, is hereby authorized to act in accordance with the terms of such policy
as if this Agreement did not exist, and the payment or other performance of its
contractual obligations by any such insurance company, in accordance with the
terms of any such policy, shall completely discharge such insurance company from
all claim, suits and demands of all persons whatsoever.
(b) Notwithstanding Section 6 hereof, the Insurer is not deemed a party to
this split-dollar arrangement, is not bound by the split-dollar arrangement, or
deemed to have notice of the provisions of this split-dollar arrangement.
Rather, the Insurer will be bound only by the provisions of and endorsements on
the Policy, and any payments made or actions taken by it in accordance with said
provisions or endorsements will fully discharge it from all claims, suits and
demands of all persons whatsoever.
8.6 Whenever possible each provision of this Agreement is to be
interpreted in a manner as to be effective and valid under applicable law, but
if any provision is prohibited or invalid under applicable law, that provision
will be ineffective to the extent of the prohibition or invalidity, without
invalidating the remainder of the provisions or the remaining portions of this
Agreement. To the extent permitted by law, the parties waive any provision of
the law that renders a provision contained in this Agreement prohibited or
unenforceable in any respect.
13
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
affixed their seals as of the date first above written.
CONCORD EFS, INC.
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Its: Chairman & CEO
-----------------------------------------
/s/ Xxxxxx X. Xxxxxx (L.S.)
-------------------------------
XXXXXX X. XXXXXX
14
