EXHIBIT 2.1
DISTRIBUTION AGREEMENT
PLAN OF REORGANIZATION AND DISTRIBUTION
DISTRIBUTION AGREEMENT ("Agreement") dated as of __________ ___, 2001 by
and between Equifax Inc., a Georgia corporation ("Equifax"), and Equifax PS
Inc., a Georgia corporation ("PSI").
RECITALS
A. PSI is a wholly-owned subsidiary of Equifax formed for the purpose of
taking title to the stock of certain Equifax subsidiaries, the assets and
liabilities of which constitute the businesses of Equifax's Payment Services
Group ("PSG").
B. The Board of Directors of Equifax has determined that it is in the best
interests of Equifax and its shareholders to transfer and assign to PSI
effective at and after the Effective Time (as defined herein) and as a
contribution to the capital of PSI, the capital stock of the Equifax
subsidiaries that currently operate the PSG businesses and certain related
assets and to receive in exchange therefor shares of PSI Common Stock and the
Borrowing Proceeds (each as defined herein).
C. The Board of Directors of Equifax has further determined that it is in
the best interests of Equifax and its shareholders to make a distribution (the
"Distribution") to the holders of Equifax Common Stock (as defined herein) of
all of the outstanding shares of PSI Common Stock at the rate of one share of
PSI Common Stock for every _____ shares of Equifax Common Stock outstanding as
of the Record Date (as defined herein).
D. The parties intend that the Contribution constitute a reorganization
described in Section 368(a)(1)(D) of the Code and that the Distribution not be
taxable to Equifax or its shareholders pursuant to Section 355 of the Code (as
defined herein).
E. The parties have determined that it is necessary and desirable to set
forth the principal corporate transactions required to effect the Contribution
and the Distribution and to set forth other agreements that will govern certain
other matters following the Distribution.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements and covenants contained in this Agreement and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used herein, the following terms have the
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following meaning:
"Action" means any claim, suit, arbitration, inquiry, proceeding, or
investigation by or before any court, governmental or other regulatory or
administrative agency or commission or any other tribunal.
"Ancillary Agreements" means all of the written agreements, instruments,
understandings, assignments and other arrangements (other than this Agreement)
entered into in connection with the transactions contemplated hereby, including,
without limitation, the Employee Benefits Agreement, the Transition Support
Agreement, the Intercompany Data Purchase Agreement, the Intellectual Property
Agreement, the Tax Sharing and Indemnification Agreement, the Real Estate
Agreements, Agreement Regarding IBM UK Mainframe Services, Agreement Regarding
IBM Australian Mainframe and Network Services, US and UK Network Services
"Authorized User Agreement, IBM United Kingdom Limited Transition Services
Agreement, Agreement Regarding IBM Canadian Data Center Services Agreement and
other documents relating to the transfer of assets and liabilities in
contemplation of the Contribution and Distribution.
"Applicable Rate" means the Prime Rate plus 2%.
"Assets" means all properties, rights, contracts, leases and claims, of
every kind and description, wherever located, whether tangible or intangible,
and whether real, personal or mixed.
"Borrowing Proceeds" means proceeds from the PSI Revolving Credit Agreement
in the amount of $_________.
"Brazil Agreements" means the agreements, assignments and documents
relating to the transfer by Equifax do Brasil Holdings, Ltda. of its ownership
interests in Xxxxxx-Solucoes em Meios de Pagamento Ltda., Partech Ltda. and
Equifax Cayman Islands Ltd. to Payment Brasil Ltda.
"Card Solutions France" means Equifax Card Solutions S.A., a wholly-owned
subsidiary of Equifax organized under the laws of France.
"Chile Agreements" means that agreements, assignments and documents
relating to the transfer by Equifax de Chile, S.A. of its ownership interests in
Procard S.A. to Payment Chile S.A.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means Securities and Exchange Commission.
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"Contribution" is defined in Section 2.01.
"Distribution" is defined in the recitals to this Agreement.
"Distribution Agent" means SunTrust Bank, Atlanta, in its capacity as agent
for Equifax in connection with the Distribution.
"Distribution Date" means the date upon which the Distribution shall be
effective, as determined by the Board of Directors of Equifax, or such committee
of such Board of Directors as shall be designated by the Board of Directors of
Equifax.
"Effective Time" means 11:59 p.m. Atlanta time on ________ ___, 2001.
"EIS" means Equifax Information Services, LLC, a wholly-owned subsidiary of
Equifax organized under the laws of the State of Georgia, formerly known as
Equifax Credit Information Services, Inc.
"Employee Benefits Agreement" means the Employee Benefits Agreement entered
into at or prior to the Effective Time between Equifax and PSI, as amended from
time to time.
"Equifax Asia Pacific" means Equifax Asia Pacific Holdings Inc., a wholly-
owned subsidiary of Equifax organized under the laws of the State of Georgia.
"Equifax Business" means the business now or formerly conducted by Equifax
and its present and former subsidiaries, joint ventures and partnerships, other
than the PSI Business.
"Equifax Common Stock" means the outstanding shares of common stock, $1.25
par value, of Equifax.
"Equifax Group" means Equifax and its subsidiaries, joint ventures and
partnerships, excluding any member of the PSI Group.
"Equifax Liabilities" means (i) Liabilities of any member of the Equifax
Group under this Agreement or any Ancillary Agreement, and (ii) Liabilities,
other than PSI Liabilities, incurred in connection with the operation of the
Equifax Business, whether arising before, at, or after the Effective Time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FBS" means First Bankcard Systems, Inc., a wholly-owned subsidiary of
Equifax organized under the laws of the State of Georgia.
"Form 10" means the registration statement on Form 10 filed by PSI with the
Commission to effect the registration of the PSI Common Stock pursuant to the
Exchange Act, as such registration statement may be amended from time to time.
"Group" means the Equifax Group or the PSI Group, as the context so
requires.
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"Guaranteed PSI Liabilities" means the PSI Liabilities on which any member
of the Equifax Group is an obligor by reason of any guarantee or contractual
commitment, including Liabilities under any contract assumed by any member of
the PSI Group from any member of the Equifax Group with respect to which any
member of the Equifax Group remains liable.
"Guaranteed Equifax Liabilities" means the Equifax Liabilities on which any
member of the PSI Group is an obligor by reason of any guarantee or contractual
commitment, including Liabilities under any contract assumed by any member of
the Equifax Group from any member of the PSI Group with respect to which any
member of the PSI Group remains liable.
"Indemnifiable Loss" means any and all damage, loss, liability, and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses) in connection with any and all Actions
or threatened Actions.
"Information Statement" means the information statement required by the
Commission to be sent to each holder of Equifax Common Stock in connection with
the Distribution, and prepared in accordance with the Exchange Act.
"Intellectual Property Agreement" means the Intellectual Property Agreement
entered into at or prior to the Effective Time between Equifax and PSI, as
amended from time to time.
"Intercompany Data Purchase Agreement" means the Intercompany Data Purchase
Agreement entered into at or prior to the Effective Time between Equifax and
PSI, as amended from time to time.
"IRS" means the United States Internal Revenue Service.
"Liabilities" means any and all claims, debts, liabilities and obligations,
absolute or contingent, matured or not matured, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising, including all costs
and expenses relating thereto, and including, without limitation, those debts,
liabilities and obligations arising under this Agreement or any Ancillary
Agreement, any law, rule, regulation, action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
"Payment Services" means Equifax Payment Services Inc., a wholly-owned
subsidiary of Equifax organized under the laws of the State of Delaware.
"Payment U.K." means Payment U.K. Ltd., a wholly-owned subsidiary of
Equifax organized under the laws of England and Wales.
"Prime Rate" means the rate of interest announced by SunTrust Bank from
time to time as its "prime rate," "prime lending rate," "base rate" or similar
reference rate. In the event the Prime Rate is discontinued as a standard, the
holder hereof shall designate a comparable reference rate as a substitute
therefor. For purposes hereof, the Prime Rate in effect at the close of
business on each business day of SunTrust Bank, Atlanta, Georgia shall be the
Prime Rate for that day and any immediately succeeding non-business day or days.
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"PSG Balance Sheet" means the consolidated balance sheet of the PSI Group
as of the Effective Time, which balance sheet shall be prepared by Equifax on a
basis consistent with Equifax's historical practices for the preparation of
monthly divisional balance sheets.
"PSI Articles" means the articles of incorporation of PSI in the form filed
as an exhibit to the Form 10 at the time it becomes effective.
"PSI Assets" means (a) the capital stock of Payment Services, FSB,
Telecredit Canada, Card Solutions France, Equifax Asia Pacific and Payment U.K.
to be transferred at or prior to the Distribution Date by Equifax to PSI, (b)
the Real Estate Assets, and (c) except as otherwise provided in an Ancillary
Agreement, all Assets that are (i) owned of record or held in the name of a
member of the PSI Group on the Distribution Date, (ii) treated for internal
financial reporting purposes of Equifax prior to the Distribution Date or on the
PSG Balance Sheet as owned by a member of the PSI Group, (iii) on the
Distribution Date used exclusively by one or more members of the PSI Group, or
(iv) transferred to a member of the PSI Group pursuant to any Ancillary
Agreement.
"PSI Business" means the businesses now or formerly conducted by PSG,
including the businesses of providing payment transaction processing and check
risk management services to financial institutions and merchants.
"PSI Bylaws" means the bylaws of PSI in the form filed as an exhibit to the
Form 10 at the time it becomes effective.
"PSI Common Stock" means the outstanding shares of common stock, $.01 par
value, of PSI.
"PSI Group" means PSI, Payment Services, FBS, Telecredit Canada, Card
Solutions France, Equifax Asia Pacific, Payment U.K., any of their respective
subsidiaries and any subsidiary or division of any member of the Equifax Group
that is included in the assets of the PSI Business as reflected in the pro forma
combined balance sheet of PSI as of March 31, 2001 contained in the Information
Statement.
"PSI Liabilities" means (a) Liabilities of any member of the PSI Group
under this Agreement or any Ancillary Agreement, (b) except as otherwise
expressly provided in this Agreement or any Ancillary Agreement, Liabilities
incurred in connection with the conduct or operation of the PSI Business
(including any acquired businesses) or the ownership or use of the PSI Assets,
whether arising before, at or after the Effective Time, (c) Liabilities arising
under or in connection with the Form 10, except to the extent such Liabilities
arise out of or are based upon information about Equifax included in the
sections of the Information Statement attached as Exhibit 99.1 to the Form 10
entitled "Summary - Our Business," "Summary - The Distribution," and "The
Distribution - Reasons for the Distribution," (d) except as otherwise expressly
provided in this Agreement or any Ancillary Agreement, Liabilities set forth on
the PSG Balance Sheet, (e) except as otherwise provided in this Agreement or any
Ancillary Agreement, Liabilities of the Equifax Group or the PSI Group relating
to a Sold PSG Business or arising out of the sale thereof, and (f) any
Liabilities relating to or arising out of the acquisition (whether through an
acquisition of stock or assets or a merger, share exchange or other form of
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business combination) of any business prior to the Effective Time by any member
of the PSI Group, except to the extent such Liabilities arise out of or are
based upon the issuance of securities of Equifax in any such business
combination transaction.
"PSI Revolving Credit Agreement" means the Revolving Credit Agreement among
various lenders and PSI, which provides for up to $_____ of availability.
"Rabbi Trusts" means the trusts established by Equifax pursuant to that
certain Grantor Trust Agreement dated as of February 4, 2000, as amended, and
the trust established by Equifax pursuant to that certain Trust Agreement dated
December 29, 1989, as amended.
"Real Estate Assets" means the real estate owned by the Equifax Group and
used by PSG which shall be conveyed to the PSG pursuant to the Real Estate
Agreements.
"Real Estate Agreements" means all deeds, subleases, releases, assignments,
consents and agreements (including without limitation the Agreement Regarding
Leases) relating to the conveyance to PSI of the Real Estate Assets and the
division of real property and interests therein between members of the Equifax
Group and members of the PSI Group entered into as of or prior to the
Distribution Date, in each case as amended from time to time.
"Record Date" means the date designated by or under the authority of
Equifax's Board of Directors as the record date for determining the shareholders
of Equifax entitled to receive the Distribution.
"Securities Act" means the Securities Act of 1933, as amended.
"Services Agreements" means the Transition Support Agreement, Agreement
Regarding IBM UK Mainframe Services, Agreement Regarding IBM Australian
Mainframe and Network Services, US and UK Network Services "Authorized User"
Agreement, IBM United Kingdom Limited Transition Services Agreement, and
Agreement Regarding IBM Canadian Data Center Services Agreement.
"Sold PSG Business" means any of the Assets or businesses related to the
PSI Business formerly owned, directly or indirectly, by Equifax and heretofore
sold.
"Stock Benefit Trust" means the Trust Agreement between Equifax and
Wachovia Bank of North Carolina, N.A. dated July 7, 1993.
"Tax" shall have the meaning given to such term in the Tax Sharing and
Indemnification Agreement.
"Tax Sharing and Indemnification Agreement" means the Tax Sharing and
Indemnification Agreement entered into at or before the Effective Time between
Equifax and PSI, as amended from time to time.
"Telecredit Canada" means Telecredit Canada, Inc., a wholly-owned
subsidiary of Equifax organized under the laws of Canada.
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"Transition Support Agreement" means the Transition Support Agreement
entered into at or prior to the Effective Time between Equifax and PSI, as
amended from time to time.
ARTICLE II
REORGANIZATION; CONVEYANCE OF CERTAIN ASSETS;
ASSUMPTION OF CERTAIN LIABILITIES;
CERTAIN PAYMENTS; AND TRANSITION ARRANGEMENTS
Section 2.01. Reorganization. On or prior to the Distribution Date and
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effective as of the Effective Time, Equifax shall contribute to PSI all of the
PSI Assets in exchange for (i) the Borrowing Proceeds and (ii) a number of
shares of PSI Common Stock that when combined with the shares of PSI Common
Stock already owned by Equifax shall equal all the shares to be distributed as
provided in Section 3.03 below (the "Contribution").
Section 2.02. Conveyance of Assets; Discharge of Liabilities. Except as
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otherwise expressly provided herein or in any of the Ancillary Agreements:
(a) Effective as of the Effective Time (i) all PSI Assets are intended to
be and shall become Assets of the PSI Group, (ii) all PSI Liabilities are
intended to be and shall become the Liabilities of the PSI Group, and (iii) all
other Assets and Liabilities of Equifax and its subsidiaries are intended to be
and shall remain exclusively the Assets and Liabilities of the Equifax Group.
(b) Effective as of the Effective Time, Equifax agrees to transfer or cause
to be transferred to PSI or to such other members of the PSI Group as PSI may
designate all right, title and interest of the Equifax Group in and to all of
the PSI Assets.
(c) PSI agrees that, effective as of the Effective Time, it will transfer
or cause to be transferred to Equifax or to such other member of the Equifax
Group as Equifax may designate all right, title and interest of the PSI Group in
and to all Assets that are not PSI Assets.
(d) PSI agrees that it will, or will cause another member of the PSI Group
designated by PSI to, (i) assume any of the PSI Liabilities for which a member
of the PSI Group is not the obligor, effective as of the Effective Time, and
(ii) timely pay and discharge all of the PSI Liabilities, at and after the
Effective Time.
(e) Equifax agrees that it will, or will cause another member of the PSI
Group designated by Equifax to, (i) assume any of the Equifax Liabilities for
which a member of the Equifax Group is not the obligor, effective as of the
Effective Time, and (ii) timely pay and discharge all of the Equifax
Liabilities, at and after the Effective Time.
(f) In the event that any conveyance of an Asset required hereby is not
effected at or before the Effective Time, the obligation to transfer such Asset
shall continue past the Effective Time and shall be accomplished as soon
thereafter as practicable.
(g) If any Asset may not be transferred by reason of the requirement to
obtain the consent of any third party and such consent has not been obtained by
the Effective Time, then (unless otherwise expressly agreed by Equifax and PSI)
such Asset shall not be transferred until
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such consent has been obtained, and Equifax and PSI, as the case may be, shall
cause the owner of such Asset to use all reasonable efforts to provide to the
appropriate member of the other Group all the rights and benefits under such
Asset and cause such owner to enforce such Asset for the benefit of such member,
in each case to the extent that such action does not cause a breach or default
under such Asset. Both parties shall otherwise cooperate and use all reasonable
efforts to provide the economic and operational equivalent of an assignment or
transfer of the Asset as of the Effective Time.
(h) From and after the Effective Time, each party shall promptly transfer
or cause the members of its Group promptly to transfer to the other party or the
appropriate member of the other party's Group, from time to time, any property
received that is an Asset of the other party or a member of its Group. Without
limiting the foregoing, funds received by a member of one Group upon the payment
of accounts receivable that belong to a member of the other Group shall be
transferred to the other Group by wire transfer not more than five business days
after receipt of such payment.
(i) Except as expressly set forth in this Agreement, any Ancillary
Agreement, or any instrument or document contemplated by this Agreement or any
Ancillary Agreement, neither any member of the Equifax Group nor any member of
the PSI Group has made or shall be deemed to have made any representation or
warranty as to (i) the Assets, business or Liabilities retained, transferred or
assumed as contemplated hereby or thereby, (ii) any consents or approvals
required in connection with the transfer or assumption by such party of any
Asset or Liability contemplated by this Agreement, (iii) the value or freedom
from any lien, claim, equity or other encumbrance of, or any other matter
concerning, any Assets of such party, (iv) the absence of any defenses or right
of setoff or freedom from counterclaim with respect to any claim or other Asset
of such party, or (v) the legal sufficiency of any assignment, document or
instrument delivered to convey title to any Asset transferred. EXCEPT AS MAY BE
EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, ALL ASSETS
WERE, OR ARE BEING, TRANSFERRED, OR ARE BEING RETAINED, ON AN "AS IS," "WHERE
IS" BASIS AND THE RESPECTIVE TRANSFEREES WILL BEAR THE ECONOMIC AND LEGAL RISKS
THAT ANY CONVEYANCE OR OTHER TRANSFER SHALL PROVE TO BE INSUFFICIENT TO VEST IN
THE TRANSFEREE A TITLE THAT IS FREE AND CLEAR OF ANY LIEN, CLAIM, EQUITY OR
OTHER ENCUMBRANCE.
Section 2.03. Ancillary Agreements. As of the Effective Time, Equifax and
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PSI (or their appropriate subsidiaries) will execute and deliver:
(a) A duly executed Employee Benefits Agreement;
(b) A duly executed Tax Sharing and Indemnification Agreement;
(c) A duly executed Intercompany Data Purchase Agreement;
(d) A duly executed copy of each of the Services Agreements;
(e) A duly executed Intellectual Property Agreement;
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(f) A duly executed copy of each of the Real Estate Agreements; and
(g) Such other agreements, leases, subleases, documents, or instruments as
the parties may agree are necessary or desirable in order to achieve the
purposes hereof.
Section 2.04. Issuance of PSI Common Stock. On or before the Distribution
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Date, and in exchange for the transfer by Equifax to PSI of the stock and assets
as provided above, and the surrender for reissue of all certificates
representing outstanding PSI Common Stock, PSI will issue and deliver to Equifax
a certificate representing shares of PSI Common Stock constituting all the
shares to be distributed as provided in Section 3.03 below.
Section 2.05. Resignations.
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(a) On the Distribution Date, PSI will deliver or cause to be delivered to
Equifax resignations of each person who will be an employee of PSI or another
member of the PSI Group from and after the Distribution Date and who is an
officer or director of Equifax or any of its subsidiaries or affiliates not
constituting a member of the PSI Group immediately prior to the Distribution
Date, except for persons identified in the Information Statement as continuing
directors of Equifax or other members of the Equifax Group.
(b) On the Distribution Date, Equifax will deliver or cause to be delivered
to PSI resignations of each person who will be an employee of Equifax or another
member of the Equifax Group from and after the Distribution Date and who is an
officer or director of PSI or any of its subsidiaries or affiliates not
constituting a member of the Equifax Group immediately prior to the Distribution
Date, except for persons identified in the Information Statement as continuing
directors of PSI or other members of the PSI Group.
Section 2.06. Conduct of PSI Pending Distribution.
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(a) Prior to the Distribution Date, PSI shall not, without the prior
consent of Equifax, make any press release concerning the Distribution and shall
use its best efforts not to take any action which may prejudice or delay the
consummation of the Distribution. Prior to the Distribution Date, PSI further
agrees regularly to apprise Equifax of public announcements to or the
dissemination of materials for financial analysts or other persons relating to
its business and the Distribution.
(b) Prior to the Distribution Date, the business of PSI shall be operated
for the sole benefit of Equifax as PSI's sole shareholder; provided however,
that upon consummation of the Distribution, the business of PSI shall be deemed
to have been operated for the sole benefit of PSI and its new shareholders, as
of and after the Effective Time. On the Distribution Date, (i) any amounts
advanced, incurred or contributed by any member of the Equifax Group to or for
the benefit of any member of the PSI Group after the Effective Time (other than
amounts advanced or contributed to PSI for costs or expenses to be paid by
Equifax in accordance with Section 15.01) shall be repaid by PSI, in addition to
any payments prescribed by Section 8.03 hereof, and (ii) any amounts advanced,
incurred or contributed by any member of the PSI Group to or for the benefit of
any member of the Equifax Group after the Effective Time shall be repaid by
Equifax, in addition to any payments prescribed by Section 8.03 hereof.
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Section 2.07. PSI Revolving Credit Agreement. PSI shall use all
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reasonable efforts promptly to obtain, and to satisfy all conditions for
borrowing under the PSI Revolving Credit Agreement in an amount sufficient to
allow PSI to generate the Borrowing Proceeds and conduct the business of PSI
after the Distribution Date.
Section 2.08. Guaranteed PSI and Equifax Liabilities.
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(a) PSI shall use all reasonable efforts (excluding payment of money or
incurrence of Liabilities) to obtain as promptly as practicable after the
Distribution Date the release of all members of the Equifax Group from any
obligations with respect to Guaranteed PSI Liabilities. In no event shall any
member of the PSI Group take any action with respect to any Guaranteed PSI
Liabilities which could be reasonably expected to adversely affect the Equifax
Group members in any way including, without limitation, extending the term of
any Guaranteed PSI Liabilities or increasing the liability guaranteed
thereunder, unless the guarantee or obligation of all Equifax Group members is
released as to any extended or modified liability obligations under such
Guaranteed PSI Liabilities or Equifax otherwise consents in writing.
(b) Equifax shall use all reasonable efforts (excluding payment of money or
incurrence of Liabilities) to obtain as promptly as practicable after the
Distribution Date the release of all members of the PSI Group from any
obligations with respect to Guaranteed Equifax Liabilities. In no event shall
any member of the Equifax Group take any action with respect to any Guaranteed
Equifax Liabilities which could be reasonably expected to adversely affect the
PSI Group members in any way including, without limitation, extending the term
of any Guaranteed Equifax Liabilities or increasing the liability guaranteed
thereunder, unless the guarantee or obligation of all PSI Group members is
released as to any extended or modified liability obligations under such
Guaranteed Equifax Liabilities or PSI otherwise consents in writing.
(c) In the event that any Equifax Group member is required to pay or
otherwise satisfy any Guaranteed PSI Liabilities, without limiting any of
Equifax's rights and remedies against PSI under this Agreement or otherwise, in
order to secure PSI's indemnity obligations to Equifax hereunder in respect of
such Guaranteed PSI Liabilities, Equifax shall be entitled to all the rights of
the payee in any property of any member of the PSI Group pledged as security for
such Guaranteed PSI Liabilities.
(d) In the event that PSI Group member is required to pay or otherwise
satisfy any Guaranteed Equifax Liabilities, without limiting any of PSI's rights
and remedies against Equifax under this Agreement or otherwise, in order to
secure Equifax's indemnity obligations to PSI hereunder in respect of such
Guaranteed Equifax Liabilities, PSI shall be entitled to all the rights of the
payee in any property of any member of the Equifax Group pledged as security for
such Guaranteed Equifax Liabilities.
Section 2.09. Insurance.
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(a) Following the Distribution, PSI will use its best efforts to procure
and maintain directors' and officers' liability insurance coverage at least
equal to the amount of Equifax's current directors' and officers' insurance
coverage for a period of five (5) years from
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the Distribution Date with respect to directors and officers of Equifax who are
or will become directors and officers of PSI as of the Distribution Date for
acts as directors and officers of members of the PSI Group for periods from and
after the Distribution Date.
(b) Following the Distribution, Equifax will use its best efforts to
maintain directors' and officers' liability insurance coverage at least equal to
the amount of Equifax's current directors' and officers' liability insurance
coverage for a period of five (5) years from the Distribution Date with respect
to the directors and officers of Equifax who are or will become directors and
officers of members of the PSI Group as of the Distribution Date for acts as
directors and officers of members of the Equifax Group during periods prior to
the Distribution Date.
ARTICLE III
THE DISTRIBUTION
Section 3.01. Cooperation Prior to the Distribution.
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(a) Equifax and PSI shall prepare, and Equifax shall mail to the holders of
Equifax Common Stock, the Information Statement, which shall set forth
appropriate disclosure concerning PSI, the Distribution and any other
appropriate matters. Equifax and PSI shall also prepare, and PSI shall file
with the Commission, the Form 10, which shall include the Information Statement.
Equifax and PSI shall use all reasonable efforts to cause the Form 10 to become
effective under the Exchange Act.
(b) Equifax shall, as the sole shareholder of PSI, approve and adopt the
PSI employee benefit plans contemplated by the Employee Benefits Agreement and
Equifax and PSI shall cooperate in preparing, filing with the Commission under
the Securities Act and causing to become effective not later than the
Distribution Date any registration statements or amendments thereto that are
appropriate to reflect the establishment of or amendments to any employee
benefit plan of PSI contemplated by the Employee Benefits Agreement, including
without limitation, a Form S-8 with respect thereto.
(c) Equifax and PSI shall take all such action as may be necessary or
appropriate under the securities or blue sky laws of states or other political
subdivisions of the United States in connection with the transactions
contemplated by this Agreement or any Ancillary Agreement.
(d) PSI shall prepare, file, and use its best efforts to cause to be
approved prior to the Record Date, the application to permit listing of the PSI
Common Stock on the New York Stock Exchange.
(e) Equifax and PSI shall take all such actions as may be deemed reasonably
necessary to secure a favorable ruling from the IRS that the Distribution is not
taxable to Equifax or its shareholders pursuant to Section 355 of the Code.
Section 3.02. Conditions Precedent to the Distribution. In no event shall
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the Distribution occur unless the following conditions shall have been satisfied
or waived by Equifax:
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(a) Equifax's Board of Directors or a duly appointed committee thereof,
shall, in its sole discretion, have established the Record Date and the
Distribution Date and any appropriate procedures in connection with the
Distribution;
(b) all necessary regulatory approvals shall have been received;
(c) the Information Statement shall have been mailed to the holders of
Equifax Common Stock;
(d) the Form 10 shall have become effective under the Exchange Act, and all
registration statements referred to under Section 3.01(b) shall have become
effective under the Securities Act;
(e) the PSI Board of Directors, as named in the Form 10, shall have been
elected by Equifax, as sole shareholder of PSI, and the PSI Articles and PSI
Bylaws shall have been adopted and be in effect;
(f) the PSI Common Stock shall have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance;
(g) Equifax and PSI shall have taken all such action as may be necessary or
appropriate under the securities or blue sky laws of states or other political
subdivisions of the United States in connection with the transactions
contemplated by this Agreement or any Ancillary Agreement;
(h) Equifax shall have received a favorable private letter ruling from the
IRS that the Contribution constitutes a reorganization pursuant to Section
368(a)(1)(D) of the Code and that the Distribution will not be taxable to
Equifax or its shareholders pursuant to Section 355 of the Code, and such ruling
shall continue in effect;
(i) PSI shall have entered into the PSI Revolving Credit Agreement;
(j) the transactions described in Section 2.01 shall have occurred;
(k) PSI (or its appropriate subsidiary) shall have performed fully its (or
their) obligations under Section 2.02;
(l) no order, injunction, or decree issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing consummation of
the Distribution shall be in effect;
(m) Equifax and PSI shall each have performed its obligations under this
Agreement and each Ancillary Agreement, which are required to be performed prior
to or at the time of the Distribution; and
(n) the parties shall have consummated those other transactions in
connection with the Distribution that are contemplated by the Information
Statement to be consummated
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prior to or at the time of the Distribution and are not specifically referred to
in this Agreement or the Ancillary Agreements identified in Sections 2.03(a) -
(f).
Section 3.03. The Distribution. On or before the Distribution Date,
----------------
subject to satisfaction or waiver of the conditions set forth in this Agreement,
Equifax shall deliver to the Distribution Agent a certificate or certificates
representing all of the then outstanding shares of PSI Common Stock held by the
Equifax Group, endorsed in blank, and shall instruct the Distribution Agent,
except as otherwise provided in Sections 3.04 and 3.05, to distribute to each
holder of record of Equifax Common Stock on the Record Date one share of PSI
Common Stock for each _____ shares of Equifax Common Stock so held either by
crediting the holder's brokerage account or by delivering a certificate or
certificates representing such shares. PSI agrees to provide all certificates
for shares of PSI Common Stock that the Distribution Agent shall require in
order to effect the Distribution.
Section 3.04. Fractional Shares. The Distribution Agent shall not
-----------------
distribute any fractional share of PSI Common Stock. The Distribution Agent
shall aggregate all such fractional shares and sell them in an orderly manner
after the Distribution Date in the open market and, after completion of such
sales, distribute a pro rata portion of the proceeds from such sales, based upon
the average gross selling price of all such PSI Common Stock, less a pro rata
portion of the aggregate brokerage commissions payable in connection with such
sales, to each holder of Equifax Common Stock who would otherwise have received
a fractional share of PSI Common Stock.
Section 3.05. Stock Trusts. The Distribution Agent shall not distribute
------------
in the Distribution any shares of PSI Common Stock to the Stock Benefit Trust or
the Rabbi Trusts.
ARTICLE IV
INDEMNIFICATION
Section 4.01. PSI Indemnification of the Equifax Group. On and after the
----------------------------------------
Distribution Date, PSI shall indemnify, defend and hold harmless each member of
the Equifax Group, and each of their respective directors, officers, employees
and agents (the "Equifax Indemnitees") from and against any and all
Indemnifiable Losses incurred or suffered by any of the Equifax Indemnitees and
arising out of, or due to, (a) the failure of PSI or any member of the PSI Group
to pay, perform or otherwise discharge, any of the PSI Liabilities and (b) any
untrue statement or alleged untrue statement of any material fact contained in
the preliminary or final Form 10, the preliminary or final Information Statement
or any amendment or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (other than the information about Equifax
included in the sections of the Information Statement attached as Exhibit 99.1
to the Form 10 entitled "Summary - Our Business," "Summary - The Distribution,"
and "The Distribution - Reasons for the Distribution," or any amendment or
supplement thereto).
Section 4.02. Equifax Indemnification of PSI Group. On and after the
------------------------------------
Distribution Date, Equifax shall indemnify, defend and hold harmless each member
of the PSI Group and each of their respective directors, officers, employees and
agents (the "PSI Indemnitees") from and
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against any and all Indemnifiable Losses incurred or suffered by any of the PSI
Indemnitees and arising out of, or due to, (a) the failure of Equifax or any
member of the Equifax Group to pay, perform or otherwise discharge, any of the
Equifax Liabilities and (b) any untrue statement or alleged untrue statement of
any material fact regarding Equifax included in the sections of the Information
Statement attached as Exhibit 99.1 to the Form 10 entitled "Summary - Our
Business," "Summary - The Distribution," and "The Distribution - Reasons for the
Distribution," or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Section 4.03. Contribution. In circumstances in which the indemnity
------------
agreements provided for in Sections 4.01(b) and 4.02(b) are unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any Indemnifiable Losses, each indemnifying party, in order to provide for
just and equitable contribution, shall contribute to the amount paid or payable
by such indemnified party as a result of such Indemnifiable Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such Indemnifiable Losses, as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by PSI or Equifax, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances.
Section 4.04. Insurance and Third Party Obligations. No insurer or any
-------------------------------------
other third party shall be, by virtue of the foregoing indemnification
provisions, (a) entitled to a benefit it would not be entitled to receive in the
absence of such provisions, (b) relieved of the responsibility to pay any claims
to which it is obligated, or (c) entitled to any subrogation rights with respect
to any obligation hereunder.
ARTICLE V
INDEMNIFICATION PROCEDURES
Section 5.01. Notice and Payment of Claims. If any Equifax or PSI
----------------------------
Indemnitee (the "Indemnified Party") determines that it is or may be entitled to
indemnification by a party (the "Indemnifying Party") under Article IV (other
than in connection with any Action or claim subject to Section 5.02), the
Indemnified Party shall deliver to the Indemnifying Party a written notice
specifying, to the extent reasonably practicable, the basis for its claim for
indemnification and the amount for which the Indemnified Party reasonably
believes it is entitled to be indemnified. After the Indemnifying Party shall
have been notified of the amount for which the Indemnified Party seeks
indemnification, the Indemnifying Party shall, within 30 days after receipt of
such notice, pay the Indemnified Party such amount in cash or other immediately
available funds (or reach agreement with the Indemnified Party as to a mutually
agreeable alternative payment schedule) unless the Indemnifying Party objects to
the claim for indemnification or the amount thereof. If the Indemnifying Party
does not give the Indemnified Party written notice objecting to such claim and
setting forth the grounds therefor within the
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same 30 day period, the Indemnifying Party shall be deemed to have acknowledged
its liability for such claim and the Indemnified Party may exercise any and all
of its rights under applicable law to collect such amount.
Section 5.02. Notice and Defense of Third Party Claims. Promptly
----------------------------------------
following the earlier of (a) receipt of notice of the commencement by a third
party of any Action against or otherwise involving any Indemnified Party or (b)
receipt of information from a third party alleging the existence of a claim
against an Indemnified Party, in either case, with respect to which
indemnification may be sought pursuant to this Agreement (a "Third Party
Claim"), the Indemnified Party shall give the Indemnifying Party written notice
thereof. The failure of the Indemnified Party to give notice as provided in
this Section 5.02 shall not relieve the Indemnifying Party of its obligations
under this Agreement, except to the extent that the Indemnifying Party is
prejudiced by such failure to give notice. Within 30 days after receipt of such
notice, the Indemnifying Party shall by giving written notice thereof to the
Indemnified Party, (a) acknowledge, as between the parties hereto, liability
for, and at its option elect to assume the defense of such Third Party Claim at
its sole cost and expense or (b) object to the claim of indemnification set
forth in the notice delivered by the Indemnified Party pursuant to the first
sentence of this Section 5.02 setting forth the grounds therefor; provided that
if the Indemnifying Party does not within the same 30 day period give the
Indemnified Party written notice acknowledging liability or objecting to such
claim and setting forth the grounds therefor, the Indemnifying Party shall be
deemed to have acknowledged, as between the parties hereto, its liability to the
Indemnified Party for such Third Party Claim. Any contest of a Third Party
Claim as to which the Indemnifying Party has elected to assume the defense shall
be conducted by attorneys employed by the Indemnifying Party and reasonably
satisfactory to the Indemnified Party; provided that the Indemnified Party shall
have the right to participate in such proceedings and to be represented by
attorneys of its own choosing at the Indemnified Party's sole cost and expense.
If the Indemnifying Party assumes the defense of a Third Party Claim, the
Indemnifying Party may settle or compromise the claim without the prior written
consent of the Indemnified Party; provided that the Indemnifying Party may not
agree to any such settlement pursuant to which any remedy or relief, other than
monetary damages for which the Indemnifying Party shall be responsible
hereunder, shall be applied to or against the Indemnified Party, without the
prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld. If the Indemnifying Party does not assume the defense of
a Third Party Claim for which it has acknowledged liability for indemnification
under Article IV, the Indemnified Party may require the Indemnifying Party to
reimburse it on a current basis for its reasonable expenses of investigation,
reasonable attorney's fees and reasonable out-of-pocket expenses incurred in
defending against such Third Party Claim, and the Indemnifying Party shall be
bound by the result obtained with respect thereto by the Indemnified Party;
provided that the Indemnifying Party shall not be liable for any settlement
effected without its consent, which consent shall not be unreasonably withheld.
The Indemnifying Party shall pay to the Indemnified Party in cash the amount for
which the Indemnified Party is entitled to be indemnified (if any) within 15
days after the final resolution of such Third Party Claim (whether by the final
nonappealable judgment of a court of competent jurisdiction or otherwise), or,
in the case of any Third Party Claim as to which the Indemnifying Party has not
acknowledged liability, within 15 days after such Indemnifying Party's objection
has been resolved by settlement, compromise or the final nonappealable judgment
of a court of competent jurisdiction.
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ARTICLE VI
EMPLOYEE MATTERS
Section 6.01. Employee Benefits Agreement. All matters relating to or
---------------------------
arising out of any employee benefit, compensation or welfare arrangement in
respect of any present and former employee of the Equifax Group or the PSI Group
shall be governed by the Employee Benefits Agreement, except as may be expressly
stated herein. In the event of any inconsistency with respect to such matters
between the Employee Benefits Agreement and this Agreement or any Ancillary
Agreement, the Employee Benefits Agreement shall govern to the extent of the
inconsistency.
ARTICLE VII
TAX MATTERS
Section 7.01. Tax Sharing and Indemnification Agreement. All matters
-----------------------------------------
relating to Taxes shall be governed exclusively by the Tax Sharing and
Indemnification Agreement, except as may be expressly stated herein. In the
event of any inconsistency with respect to such matters between the Tax Sharing
and Indemnification Agreement and this Agreement or any other Ancillary
Agreement, the Tax Sharing and Indemnification Agreement shall govern to the
extent of the inconsistency.
ARTICLE VIII
ACCOUNTING MATTERS
Section 8.01. Allocation of Prepaid Items and Reserves. All prepaid items
----------------------------------------
and reserves that have been maintained by Equifax on a consolidated basis but
that relate in part to assets or liabilities of the PSI Group shall be allocated
between Equifax and PSI as determined by Equifax in its reasonable discretion.
Section 8.02. Accounting Treatment of Assets Transferred and Liabilities
----------------------------------------------------------
Assumed.
-------
(a) The transfer by Equifax of the PSI Assets to PSI pursuant to this
Agreement shall constitute a contribution by Equifax to the capital of PSI.
(b) The transfer by Equifax do Brasil Holdings, Ltda. of its ownership
interests in Xxxxxx-Solucoes em Meios de Pagamento Ltda., Partech Ltda. and
Equifax Cayman Islands Ltd. to Payment Brasil Ltda. pursuant to the Brazil
Agreements shall be treated as a sale and purchase.
(c) The transfer by Equifax de Chile, S.A. of its ownership interests in
Procard S.A. to Payment Chile S.A. pursuant to the Chile Agreements shall be
treated as a taxable distribution.
Section 8.03. Intercompany Accounts. On or before the Distribution Date,
---------------------
Equifax shall prepare and deliver to PSI a preliminary PSG Balance Sheet which
shall set forth good faith estimates of all intercompany account balances
between members of the Equifax Group and members of the PSI Group as of the
Effective Time. On or before the Distribution Date, all estimated intercompany
account balances owing as set forth on the preliminary PSG Balance Sheet shall
be settled and paid in full by PSI or Equifax, as the case may be. Within 30
business
-16-
days after the Effective Time, Equifax shall prepare and deliver to PSI a final
PSG Balance Sheet which shall set forth all intercompany account balances
between members of the Equifax Group and members of the PSI Group as of the
Effective Time. Within ten business day after the delivery of the final PSG
Balance Sheet, Equifax shall pay to PSI or PSI shall pay to Equifax, as the case
may be, the difference between the estimated account balances set forth on the
preliminary PSG Balance Sheet and the final account balances set forth on the
final PSG Balance Sheet. Notwithstanding anything contained herein to the
contrary, Equifax may at its option contribute to PSI amounts owed by any member
of the PSI Group to any member of the Equifax Group as a contribution to the
capital of PSI in lieu of payment of such amounts to the Equifax Group by the
PSI Group. Any disputes arising from the adjustments required by the final PSG
Balance Sheet shall be resolved in accordance with Section 15.10 hereof.
ARTICLE IX
DATA, PRODUCTS AND SERVICES
Section 9.01. Intercompany Data Purchase Agreement. All matters relating
------------------------------------
to the ownership of and the right to use data owned or maintained by any member
of the Equifax Group or the PSI Group shall be governed exclusively by the
Intercompany Data Purchase Agreement, except as maybe expressly stated herein.
In the event of any inconsistency with respect to such matters between the
Intercompany Data Purchase Agreement and this Agreement or any Ancillary
Agreement, the Intercompany Information Data Purchase Agreement shall govern to
the extent of the inconsistency.
ARTICLE X
INTELLECTUAL PROPERTY
Section 10.01. Intellectual Property Agreement. All matters relating to
-------------------------------
the ownership and right to use intellectual property, other than data, shall be
governed exclusively by the Intellectual Property Agreement. In the event of
any inconsistency with respect to such matters between the Intellectual Property
Agreement and this Agreement or any Ancillary Agreement, the Intellectual
Property Agreement shall govern to the extent of the inconsistency.
ARTICLE XI
TRANSITION SUPPORT
Section 11.01. Services Agreements. All matters relating to the provision
-------------------
of support and other services by the Equifax Group to the PSI Group and the PSI
Group to the Equifax Group after the Effective Time, covered by the Services
Agreements, shall be governed exclusively by the respective Services Agreements,
except as may be expressly stated herein. In the event of any inconsistency
with respect to such matters between a particular Services Agreement and this
Agreement or any other Ancillary Agreement, the particular Service Agreement
shall govern to the extent of the inconsistency.
-17-
ARTICLE XII
REAL PROPERTY MATTERS
Section 12.01. Real Estate Agreements. All matters relating to real
----------------------
property to be owned, leased, subleased, occupied, or shared by the Equifax
Group or the PSI Group after the Effective Time shall be governed by the Real
Estate Agreements. In the event of any inconsistency with respect to such
matters between the Real Estate Agreements and this Agreement or any Ancillary
Agreement, the Real Estate Agreements shall govern to the extent of the
inconsistency.
ARTICLE XIII
INFORMATION
Section 13.01. Provision of Corporate Records. As soon as practicable
------------------------------
following the Effective Time, Equifax and PSI shall each arrange for the
provision to the other of existing corporate documents (e.g. minute books, stock
registers, stock certificates, documents of title, contracts, etc.) in its
possession relating to the other or its business and affairs or to any other
entity that is part of such other's respective Group or to the business and
affairs of such other entity.
Section 13.02. Access to Information. From and after the Effective Time,
---------------------
Equifax and PSI shall each afford the other and its accountants, counsel and
other designated representatives reasonable access (including using reasonable
efforts to give access to persons or firms possessing information) and
duplicating rights during normal business hours to all records, books,
contracts, instruments, computer data and other data and information in its
possession relating to the business and affairs of the other or a member of its
Group (other than data and information subject to an attorney/client or other
privilege), insofar as such access is reasonably required by the other
including, without limitation, for audit, accounting and litigation purposes.
Section 13.03. Litigation Cooperation. Equifax and PSI shall each use
----------------------
reasonable efforts to make available to the other, upon written request, its
officers, directors, employees and agents, and the officers, directors,
employees and agents of its subsidiaries, as witnesses to the extent that such
persons may reasonably be required in connection with any legal, administrative
or other proceedings arising out of the business of the other, or of any entity
that is part of the others' respective Group, prior to the Effective Time in
which the requesting party or one of its subsidiaries may from time to time be
involved. The requesting party shall bear all out-of-pocket costs and expenses
in connection therewith. In connection with any matter contemplated by this
Section 13.03, at the request of either party, the parties will enter into a
mutually acceptable joint defense agreement so as to maintain to the extent
practicable any attorney-client privilege or work product immunity of any member
of any Group.
Section 13.04. Retention of Records. Except as otherwise required by law
--------------------
or agreed to in writing, each party shall, and shall cause the members of its
Group to, retain all information relating to the other's business in accordance
with the past practice of such party. Notwithstanding the foregoing, either
party may destroy or otherwise dispose of any information at any time in
accordance with the corporate record retention policy maintained by such party
with respect to its own records.
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Section 13.05. Confidentiality. Each party shall, and shall cause each
---------------
member of its Group to, hold and cause its directors, officers, employees,
agents, consultants and advisors to hold, in strict confidence, unless compelled
to disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all information of or concerning the
other party or its Group (except to the extent that this Agreement or any
Ancillary Agreement permits or requires the use or disclosure of such
information or to the extent such information can be shown to have been (a) in
the public domain through no fault of the persons subject to the restrictions of
this Section ("receiving party"), (b) later lawfully acquired after the
Effective Time on a non-confidential basis from a third party or (c)
independently generated without any reference to any proprietary or confidential
information of the other party or its Group), and no receiving party shall (i)
use such information, except for the benefit of the other party's Group in
connection with the performance of this Agreement or the Ancillary Agreements,
or (ii) disclose such information to any other person, except its auditors,
attorneys, financial advisors, bankers and other consultants and advisors who
need to know such information and who shall be advised of the obligations
contained in this Section 13.05 and be bound by them. Each receiving party
shall be deemed to have satisfied its obligation to hold confidential
information concerning or owned by the other party or its Group if it exercises
the same care as it takes to preserve confidentiality for its own similar
information. The covenants in this Section 13.05 shall survive the transactions
contemplated by this Agreement and shall continue indefinitely; provided,
however, that the covenants in this Section 13.05 shall terminate with respect
to any information not constituting a trade secret under applicable law on the
third anniversary of the later of the Distribution Date or the date on which the
party subject to such covenants with respect to such information receives it
(but any such termination shall not terminate or otherwise limit any other
covenant or restriction regarding the disclosure or use of such information
under any Ancillary Agreement or other agreement, instrument or legal
obligation).
Section 13.06. Ownership of Information. Any information owned by one
------------------------
party or any of its subsidiaries that is provided to a requesting party pursuant
to Article V, Article XV, or this Article XIII shall be deemed to remain the
property of the providing party. Unless specifically set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring rights
of license or otherwise in any such information.
ARTICLE XIV
INTEREST ON PAYMENTS
Section 14.01. Interest. Except as otherwise expressly provided in this
--------
Agreement or an Ancillary Agreement, all payments by one party to the other
under this Agreement or any Ancillary Agreement shall be paid, by company check
or wire transfer of immediately available funds to an account in the United
States designated by the recipient, within 30 days after receipt of an invoice
or other written request for payment setting forth the specific amount due and a
description of the basis therefor in reasonable detail. Any amount remaining
unpaid beyond its due date, including disputed amounts that are ultimately
determined to be payable, shall bear interest at a rate of simple interest per
annum equal to the Applicable Rate. Notwithstanding anything to the contrary
contained herein or in any Ancillary Agreement, in no event shall the amount or
rate of interest due and payable exceed the maximum amount or rate of interest
allowed by applicable law (including, without limitation, O.C.G.A. (S) 7-4-18)
and, in the event
-19-
any such excess payment is made or received, such excess sum shall be credited
as a payment of principal (or if no principal shall remain outstanding, shall be
refunded).
ARTICLE XV
MISCELLANEOUS
Section 15.01. Expenses. Except as specifically provided in this
--------
Agreement or any Ancillary Agreement, all costs and expenses incurred in
connection with the preparation, execution, delivery and implementation of this
Agreement and the Ancillary Agreements and with the consummation of the
transactions contemplated by this Agreement (including transfer taxes and the
fees and expenses of the Distribution Agent and of all counsel, accountants and
financial and other advisors) shall be paid by Equifax. Without limiting the
foregoing, Equifax shall pay the legal, filing, accounting, printing, and other
expenses in connection with the preparation, printing and filing of the Form 10
and the Information Statement.
Section 15.02. Notices. All notices and communications under this
-------
Agreement shall be in writing and shall be deemed to have been given (a) when
received, if such notice or communication is delivered by facsimile, hand
delivery or overnight courier, and, (b) three (3) business days after mailing if
such notice or communication is sent by United States registered or certified
mail, return receipt requested, first class postage prepaid. All notices and
communications, to be effective, must be properly addressed to the party to whom
the same is directed at its address as follows:
If to Equifax, to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
Fax: (000) 000-0000
with a copy to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
General Counsel
Fax: (000) 000-0000
If to PSI, to: Equifax PS, Inc.
-----------------------------
-----------------------------
Attention: Xxxxx X. Xxxxxxxx
General Counsel
Fax:
-----------------------
with a copy to: Equifax PS, Inc.
-----------------------------
-----------------------------
Attention: Xxx X. Xxxxxxx
President and Chief
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Fax: Executive Officer
--------------------------
Either party may, by written notice delivered to the other party in
accordance with this Section 15.02, change the address to which delivery of any
notice shall thereafter be made.
Section 15.03. Amendment and Waiver. This Agreement may not be altered or
--------------------
amended, nor may any rights hereunder be waived, except by an instrument in
writing executed by the party or parties to be charged with such amendment or
waiver. No waiver of any terms, provision or condition of or failure to
exercise or delay in exercising any rights or remedies under this Agreement, in
any one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, provision, condition, right or remedy or as
a waiver of any other term, provision or condition of this Agreement.
Section 15.04. Entire Agreement. This Agreement, together with the
----------------
Ancillary Agreements, constitutes the entire understanding of the parties hereto
with respect to the subject matter hereof, superseding all negotiations, prior
discussions and prior agreements and understandings relating to such subject
matter. To the extent that the provisions of this Agreement are inconsistent
with the provisions of any Ancillary Agreement with respect to the subject
matter thereof, the provisions of such Ancillary Agreement shall prevail to the
extent of the inconsistency.
Section 15.05. Consolidation, Merger, Etc.; Parties in Interest;
-------------------------------------------------
Termination.
-----------
(a) Neither party (referred to in this Section 15.05(a) as a "transferring
party") shall consolidate with or merge into any other entity or convey,
transfer or lease all or any substantial portion of its properties and assets to
any entity, unless, in each case, the other party to such transaction expressly
assumes, by a written agreement, executed and delivered to the other party
hereto, in form reasonably satisfactory to such other party, all of the
Liabilities of the transferring party under this Agreement and the Ancillary
Agreements and the due and punctual performance or observance of every agreement
and covenant of this Agreement and Ancillary Agreements on the part of the
transferring party to be performed or observed.
(b) Neither of the parties hereto may assign its rights or delegate any of
its duties under this Agreement without the prior written consent of each other
party. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement, express or implied, is intended to confer
any benefits, rights or remedies upon any person or entity other than members of
the Equifax Group and the PSI Group and the Equifax Indemnitees and PSI
Indemnitees under Articles IV and V hereof.
(c) This Agreement (including Articles IV and V hereof) may be terminated
and the Distribution may be amended, modified or abandoned at any time prior to
the Distribution by and in the sole discretion of Equifax without the approval
of PSI or the shareholders of Equifax. In the event of such termination, no
party shall have any liability of any kind to any other party or any other
person. After the Distribution, this Agreement may not be terminated except by
an agreement in writing signed by the parties; provided, however, that
-21-
Articles IV and V shall not be terminated or amended after the Distribution in
respect of any Equifax Indemnitee or PSI Indemnitee without the consent of such
person.
Section 15.06. Further Assurances and Consents. In addition to the
-------------------------------
actions specifically provided for elsewhere in this Agreement, each of the
parties hereto will use its reasonable efforts to (a) execute and deliver such
further instruments and documents and take such other actions as any other party
may reasonably request in order to effectuate the purposes of this Agreement and
to carry out the terms hereof and (b) take, or cause to be taken, all actions,
and do, or cause to be done, all things, reasonably necessary, proper or
advisable under applicable laws, regulations and agreements or otherwise to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, using its reasonable efforts to obtain any
consents and approvals, make any filings and applications and remove any liens,
claims, equity or other encumbrance on an Asset of the other party necessary or
desirable in order to consummate the transactions contemplated by this
Agreement; provided that no party hereto shall be obligated to pay any
consideration therefor (except for filing fees and other similar charges) to any
third party from whom such consents, approvals and amendments are requested or
to take any action or omit to take any action if the taking of or the omission
to take such action would be unreasonably burdensome to the party or its Group
or the business thereof.
Section 15.07. Severability. The provisions of this Agreement are
------------
severable and should any provision hereof be void, voidable or unenforceable
under any applicable law, such provision shall not affect or invalidate any
other provision of this Agreement, which shall continue to govern the relative
rights and duties of the parties as though such void, voidable or unenforceable
provision were not a part hereof.
Section 15.08. Governing Law. This Agreement shall be construed in
-------------
accordance with, and governed by, the laws of the State of Georgia, without
regard to the conflicts of law rules of such state.
Section 15.09. Counterparts. This Agreement may be executed in one or
------------
more counterparts, each of which shall be deemed an original instrument, but all
of which together shall constitute but one and the same Agreement.
Section 15.10. Disputes.
--------
(a) Except as otherwise provided in any Ancillary Agreement, all disputes,
controversies or claims between members of the Equifax Group and the PSI Group,
which are parties to this Agreement or any Ancillary Agreement, arising out of
or relating to this Agreement or any Ancillary Agreement or the performance by
the parties of its or their terms, whether based on contract, tort, statute or
otherwise, including, but not limited to, disputes in connection with claims by
third parties (collectively, "Disputes"), shall be resolved only in accordance
with the provisions of this Section 15.10; provided, however, that nothing
contained herein shall preclude any party to a Dispute from seeking or obtaining
(i) injunctive relief to prevent an actual or threatened breach of any of the
provisions of this Agreement or any Ancillary Agreement, or (ii) equitable or
other judicial relief to enforce the provisions of this Section 15.10 hereof or
to preserve the status quo pending resolution of Disputes hereunder.
-22-
(b) Any party or parties to a Dispute of either Group may give the
parties to the Dispute of the other Group written notice of the Dispute
initiating the procedures hereunder. Within 10 days after delivery of the
notice of a Dispute, the receiving parties shall submit to the other a written
response. The notice and the response shall include a statement of each party's
respective position and a summary of arguments supporting that position and the
name and title of the executive who will represent the claimants and of any
other person who will accompany such executive in resolving the Dispute. Within
twenty (20) days after delivery of the first notice, the executives of both
Groups shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, and shall negotiate in good faith to
attempt to resolve the Dispute. All reasonable requests for information made by
one party to the another will be honored.
(c) If the Dispute has not been resolved by negotiation within sixty (60)
days of the notice of Dispute, the Dispute may then be submitted for resolution
by binding arbitration by a panel of three arbitrators conducted in accordance
with the Rules of Arbitration of the International Chamber of Commerce (the
"Rules"), as modified by this Section 15.10. Arbitration shall be initiated by
notice from the parties to a Dispute of either Group ("claimants") given to the
parties to the Dispute of the other Group ("respondents"). The claimants acting
jointly, on the one hand, and the respondents acting jointly, on the other hand,
shall each appoint one arbitrator within 14 days after the claimants give an
arbitration notice. The two arbitrators so appointed shall designate the third
arbitrator by mutual agreement within 30 days after the arbitration notice is
given. If the two arbitrators so appointed fail to designate the third
arbitrator within such period, then any party may request the International
Chamber of Commerce to appoint the third arbitrator within 14 days after such
request. The third arbitrator shall be a lawyer licensed to practice in the
State of Georgia who shall not be related to, employed by, affiliated with or
have had a substantial or ongoing business relationship with any member of
either Group.
(d) The arbitration shall be conducted in Atlanta, Georgia (or at any other
place agreed upon by the parties and the arbitrators). The parties will
facilitate the arbitration by: (i) making available to one another and to the
arbitrators for examination, inspection and extraction all documents, books,
records and personnel under their control if determined by the arbitrators to be
relevant to the dispute; (ii) conducting arbitration hearings to the greatest
extent possible on successive days; and (iii) observing strictly the time
periods established by this Section 15.10, the Rules or by the Arbitrators for
submission of evidence or briefs. All issues in connection with the Dispute,
including procedural issues, shall be decided by the concurrence of at least two
arbitrators, and all decisions by the arbitrators shall be accompanied by a
written opinion setting forth the findings of fact and conclusions of law relied
upon in reaching the decision. The panel of arbitrators shall decide the issues
submitted to it in accordance with the language and commercial purposes of this
Agreement or the relevant Ancillary Agreement (as applicable); provided that all
questions of law shall be governed by the internal laws of the State of Georgia,
without regard to its conflict of laws rules. The arbitrators' decision shall be
final and binding as to all matters at issue in the Dispute; provided, however,
if necessary such decision may be enforced by either party in any court having
jurisdiction over the parties or the subject matter of the Dispute. Unless the
arbitrators shall assess the costs and expenses of the arbitration proceeding
and of the parties differently, each party shall pay its costs and expenses
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incurred in connection with the arbitration proceeding, and the costs and
expenses of the arbitrators shall be shared equally by the parties.
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
EQUIFAX INC.
By:
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Title
EQUIFAX PS, INC.
By:
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Title
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