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EXHIBIT 10.49
NOVA CORPORATION
DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
THIS TRUST AGREEMENT UNDER THE NOVA CORPORATION DEFERRED COMPENSATION
PLAN (this "Trust Agreement"), effective as of November 10, 1999, is made by
and among NOVA Corporation, a corporation organized and doing business under
the laws of the State of Georgia, its successors, and any subsidiary or
affiliated organization that the Board of Directors of NOVA Corporation
authorizes to participate in the Plan, if they so participate (collectively the
"Company"), and Wachovia Bank, N.A. (the "Trustee"). The defined terms used in
this Trust Agreement that are not defined herein shall have the same meanings
given to them in the NOVA Corporation Deferred Compensation Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company is adopting the Plan primarily to aid in
retaining and attracting employees by providing them with savings and
tax-deferral opportunities; and
WHEREAS, the Company will incur certain liabilities under the Plan
with respect to such employees; and
WHEREAS, the Company desires to establish a trust (the "Trust") into
which it can deposit amounts to finance such liabilities, which amounts are
subject to the claims of the Company's creditors in the event of insolvency of
the Company, unless sooner paid as specified in the Plan; and
WHEREAS, the Company intends that this Trust will constitute an
unfunded arrangement and will not affect the status of the Plan as an unfunded
plan maintained for the purpose of providing deferred compensation for a select
group of management or highly compensated employees for purposes of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
NOW, THEREFORE, the Company and the Trustee hereby establish the Trust
and agree that the Trust shall be administered as follows:
SECTION 1.
Establishment of Trust
1.1 Establishment. The Company at its sole discretion will from
time to time deposit in trust with the Trustee cash or other property, which
shall become the principal of the Trust and which the Trustee will hold,
administer and dispose of as this Trust Agreement provides. Neither the Trustee
nor any Participant or Beneficiary of the Plan shall have any right to compel
the Company to make any such deposits except as otherwise set forth in this
Trust Agreement.
1.2 Nonrevocable. The Company may not revoke the Trust that is
established pursuant to this Trust Agreement.
1.3 Grantor Trust. The Trust is intended to be a grantor trust,
of which the Company is the grantor, within the meaning of Subpart E, Part I,
Subchapter J, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as
amended (the "Code"), and shall be construed accordingly.
1.4 Use of Trust Assets. The principal of the Trust and any
income, gains, appreciation, losses, depreciation and expenses thereon shall be
held separate and apart from the
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other funds of the Company and shall be used exclusively for the uses and
purposes of the Plan and for the general creditors of the Company as
hereinafter set forth. No Participant or Beneficiary of the Plan shall have any
preferred claim on, or rights or beneficial ownership in, any of the assets of
the Trust. The assets of the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
insolvency of the Company, as defined in Section 3 below.
SECTION 2.
Payments to Participants
and their Beneficiaries
2.1 Payments. The Administrative Committee will deliver to the
Trustee a payment schedule that indicates (i) the amounts payable under the
Plan to each Participant and Beneficiary, (ii) the form in which such amounts
are to be paid, and (iii) the time of commencement for payment of such amounts.
Except as otherwise provided herein, the Trustee shall make payments to the
Participants and their Beneficiaries in accordance with such payment schedules.
The Trustee shall withhold any federal, state or local taxes that are required
to be withheld with respect to such payments, shall pay such withheld amounts
to the appropriate taxing authorities and shall make any applicable reports.
2.2 Benefit Entitlement. The Administrative Committee shall
determine the entitlement of any Participant or Beneficiary to any benefits
under the Plan, and any claim that a Participant or Beneficiary makes for
benefits under the Plan shall be considered and reviewed under the procedures
described in the Plan.
2.3 Required Company Contributions. If the assets in the Trust
are not sufficient to make the payment of any benefits in accordance with the
terms of the Plan, the Company shall contribute to the Trust the amounts
necessary to make such payments as they fall due. The Trustee shall notify the
Company if the assets of the Trust are not sufficient to pay any benefits under
the Plan.
SECTION 3.
Trustee Responsibility
When Company is Insolvent
3.1 Payments on Company Insolvency. The Trustee shall cease
payment of benefits to Participants and their Beneficiaries under the Plan if
the Company is insolvent. The Company shall be considered insolvent for
purposes of this Trust Agreement if (i) the Company is unable to pay its debts
as they become due, or (ii) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
3.2 Procedure for Paying Claims of General Creditors.
(i) At all times during the continuation of this Trust, the
assets of the Trust shall be subject to the claims of the general creditors of
the Company under federal and state law as set forth herein.
(ii) The Board of Directors of the Company shall have the duty to
inform the Trustee in writing of the Company's insolvency. If a person claiming
to be a creditor of the Company alleges in writing to the Trustee that the
Company has become insolvent, the Trustee shall determine whether the Company
is insolvent and, pending such determination, the Trustee shall discontinue
payments of benefits to Participants and their Beneficiaries.
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(iii) Unless the Trustee has actual knowledge of the Company's
insolvency, or has received notice from the Company or a person claiming to be
a creditor alleging that Company is insolvent, the Trustee shall have no duty
to inquire whether the Company is insolvent. The Trustee may in all events rely
on such evidence concerning the Company's insolvency as may be furnished to
Trustee, if such evidence provides Trustee with a reasonable basis to make a
determination concerning the Company's insolvency.
(iv) If at any time the Trustee determines that the Company is
insolvent, the Trustee shall discontinue payments to Participants and their
Beneficiaries and shall hold the assets of the Trust for the benefit of the
Company's general creditors. However, nothing in this Trust Agreement shall in
any way diminish the rights of Participants or their Beneficiaries to pursue
their rights as general creditors of the Company with respect to any benefits
due under the Plan.
(v) The Trustee shall resume the payment of benefits under the
Plan to Participants and their Beneficiaries in accordance with this Trust
Agreement only if the Trustee determines that the Company is not insolvent or
is no longer insolvent.
(vi) Provided there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust, and subsequently resumes payment, the
first payment following such discontinuance shall include the aggregate amount
of all payments due to Participants and their Beneficiaries under the Plan for
the period of such discontinuance, including any earnings that accrued during
such discontinuance.
SECTION 4.
Payments to the Company
4.1 No Company Right to Payment. Except as provided in Section 3
and Section 4.2 hereof, the Company shall have no right or power to direct the
Trustee to return to the Company or to divert to anyone other than Participants
or their Beneficiaries any of the assets of the Trust before payment of all
benefits due them have been made to the Participants and their Beneficiaries
pursuant to the terms of the Plan.
4.2 Company Right to Payment. At any point in which the assets of
the Trust exceed the liabilities to the Participants and this Beneficiaries by
125%, the Company shall at its sole discretion have the right and power to
direct the Trustee to return to the Company the portion of such assets in
excess of 125% of such liabilities.
SECTION 5.
Investment Authority
5.1 Investment Directions. The Administrative Committee from time
to time shall direct the Trustee as to how the amounts in this Trust are to be
invested, by giving written direction to the Trustee at such intervals as the
Administrative Committee deems appropriate before the proposed implementation
of such investment direction. The Trustee shall be authorized to retain assets
in cash without liability for interest, whether or not in keeping with any
investment directions, pending the purchase of investments implementing the
directions of the Administrative Committee.
5.2 Limits on Responsibility of Trustee. The Trustee shall have
no discretion with respect to the investment or disposition of any of the
assets of the Trust under the investment direction of the Administrative
Committee and shall not be liable for the investment or disposition of any such
assets, or for any acts or omissions of the Administrative Committee, or for
taking or refraining from taking any action at the direction of the
Administrative Committee,
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or for any losses that are the direct result of the direction of the
Administrative Committee. The Trustee shall be under no duty to make any review
of or recommendations relating to the investments made at the direction of the
Administrative Committee.
5.3 Investment Authority of the Trustee. Subject to instructions
or investment guidelines agreed to in writing from time to time by the
Administrative Committee, the Trustee shall have the power to invest and
reinvest the Trust at its sole discretion:
(1) To invest and reinvest in any readily marketable
common and preferred stocks, bonds, notes,
debentures (including convertible stocks and
securities but not including any stock or security
of the Trustee other than a de minimus amount held
in a mutual fund), certificates of deposit or demand
or time deposits (including any such deposits with
the Trustee) and shares of investment companies and
mutual funds, without being limited to the classes
or property in which the Trustees are authorized to
invest by any law or any rule of court of any state
and without regard to the proportion any such
property may bear to the entire amount of the Fund.
Without limitation, the Trustee may invest the Trust
in any investment company (including any investment
company or companies for which Wachovia Bank, N.A.
or an affiliated company acts as the investment
advisor) or any insurance contract or contracts
issued by an insurance company or companies in each
case as the Trustee may determine provided that the
Trustee may at its sole discretion keep such portion
of the Trust in cash or cash balances for such
reasonable periods as may from time to time be
deemed advisable pending investment or in order to
meet contemplated payments of benefits;
(2) To commingle for investment purposes, upon direction
of the Company, all or any portion of the Trust with
assets of any other similar trust or trusts
established by the Company with the Trustee for the
purpose of safeguarding deferred compensation or
retirement income benefits of its employees and/or
directors;
(3) To retain any property at any time received by the
Trustee;
(4) To sell or exchange any property held by it at
public or private sale, for cash or credit, to grant
and exercise options for the purchase or exchange
thereof, to exercise all conversion or subscription
rights pertaining to any such property and to enter
into any covenant or agreement to purchase any
property in the future;
(5) To participate in any plan or reorganization,
consolidation, merger, combination, liquidation or
other similar plan relating to property held by it
and to consent to or oppose any such plan or any
action thereunder or any contract, lease, mortgage,
purchase, sale or other action by any person;
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(6) To deposit any property held by it with any
protective, reorganization or similar committee, to
delegate discretionary power thereto, and to pay
part of the expenses and compensation thereof any
assessments levied with respect to any such property
to be deposited;
(7) To extend the time of payment of any obligation held
by it;
(8) To hold uninvested any moneys received by it,
without liability for interest thereof, but only in
anticipation of payments due for investments,
reinvestments, expenses or disbursements;
(9) To exercise all voting or other rights with respect
to any property held by it and to grant proxies,
discretionary or otherwise;
(10) For the purposes of the Trust, to borrow money from
others, to issue its promissory note or notes
therefor, and to secure the repayment thereof by
pledging any property held by it;
(11) To employ suitable contractors and counsel, who may
be counsel to the Company or to the Trustee, and to
pay their reasonable expenses and compensation from
the Trust to the extent not paid by the Company;
(12) To register investments in its own name or in the
name of a nominee; to hold any investment in bearer
form; and to combine certificates representing
securities with certificates of the same issue held
by it in other fiduciary capacities or to deposit or
to arrange for the deposit of such securities with
any depository, even though, when so deposited, such
securities may be held in the name of the nominee of
such depository with other securities deposited
therewith by other persons, or to deposit or to
arrange for the deposit of any securities issued or
guaranteed by the United States government, or any
agency or instrumentality thereof, including
securities evidenced by book entries rather than by
certificates, with the United States Department of
the Treasury or a Federal Reserve Bank, even though,
when so deposited, such securities may not be held
separate from securities deposited therein by other
persons; provided, however, that no securities held
in the Trust shall be deposited with the United
States Department of the Treasury or a Federal
Reserve Bank or other depository in the same account
as any individual property of the Trustee, and
provided, further, that the books and records of the
Trustee shall at all times show that all such
securities are part of the Trust;
(13) To settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the
Trust, respectively, to commence or defend suits or
legal proceedings to protect any interest of the
Trust, and to represent the Trust in all suits or
legal proceedings in any court or before any other
body or tribunal; provided, however, that the
Trustee shall not
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be required to take any such action unless it shall
have been indemnified by the Company to its
reasonable satisfaction against liability or
expenses it might incur therefrom;
(14) To hold or retain policies of life insurance,
annuity contracts, and other property of any kind
which policies are contributed to the Trustee by the
Company or are purchased by the Trustee;
(15) To hold any other class of assets which may be
contributed by the Company and that is deemed
reasonable by the Trustee, unless expressly
prohibited herein;
(16) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or
desirable for the protection of the Trust.
5.4 Substitution of Trust Assets. The Company shall have the
right at any time, and from time to time at its sole discretion, to substitute
assets of equal fair market value for any asset held by the Trust. This right
is exercisable by the Company in a nonfiduciary capacity without the approval
or consent of any person in a fiduciary capacity.
SECTION 6.
Disposition of Income
6.1 During the term of this Trust, the earnings of the Trust, net
of expenses and taxes, shall be accumulated and reinvested as set forth in
Section 5 above.
SECTION 7.
Accounting
7.1 Accounting Records. The Trustee shall keep accurate and
detailed records of all investments, receipts, disbursements and other
transactions that are made, including such records as shall be agreed upon in
writing between the Company and the Trustee. Promptly following the close of
each calendar quarter, the Trustee shall deliver to the Company written
statements setting forth the balance in the Trust as of the end of such
quarter, and all investments, receipts, disbursements and other transactions of
the Trust in such quarter, including a description of all securities and other
investments purchased and sold with the cost or net proceeds of such purchases
or sales and showing all cash, securities and other investments the Trust held
at the end of such quarter. Promptly following the close of each Plan Year and
promptly after the removal or resignation of the Trustee, the Trustee shall
deliver to the Company a written account of its administration of the Trust
during such Plan Year or during the period from the close of the last preceding
Plan Year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions it effected,
including a description of all securities and other investments purchased and
sold with the cost or net proceeds of such purchases or sales and showing all
cash, securities and other investments the Trust held at the end of such Plan
Year or as of the date of such removal or resignation, as the case may be.
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SECTION 8.
Responsibility of Trustee.
8.1 Duties of the Trustee. The Trustee shall act in accordance
with any fiduciary duty it has under applicable law, provided, however, that
the Trustee shall incur no liability to any person for any action taken
pursuant to a written direction, request or approval that the Administrative
Committee gives, and that is contemplated by, and in conformity with, the terms
of the Plan or this Trust Agreement. In the event of a dispute, the Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
8.2 Power of Trustee. The Trustee shall have, without exclusion,
all powers conferred on trustees by applicable law, including but not limited
to the right to exercise voting rights of stock held as an asset of the Trust
unless expressly provided otherwise herein, provided, however, that if an
insurance policy is held as an asset of the Trust, the Trustee shall have no
power to name a beneficiary of the policy other than the Trust, to assign the
policy (as distinct from conversion of the policy to a different form) other
than to a successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
8.3 Indemnification. If the Trustee undertakes or defends any
litigation arising in connection with this Trust, the Company agrees to
indemnify the Trustee against Trustee's costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses) relating thereto
and to be liable for such payments.
8.4 Legal Counsel. The Trustee may consult with legal counsel
(who may also be counsel for the Company generally) with respect to any of its
duties or obligations hereunder.
8.5 Hiring. The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to assist it
in performing any of its duties or obligations hereunder.
SECTION 9.
Compensation and Expenses of Trustee
9.1 Payment of Fees. The Trustee's compensation shall be as
agreed in writing from time to time by the Company and the Trustee. The Company
shall pay all administrative expenses and the Trustee's fees and shall promptly
reimburse the Trustee for any fees and expenses of its agents. If not so paid,
the fees and expenses shall be paid from the Trust.
SECTION 10.
Resignation and Removal of Trustee
10.1 Resignation. The Trustee may resign at any time by giving
written notice to Company, which shall be effective 30 days after receipt of
such notice.
10.2 Removal. The Company may remove the Trustee by giving written
notice to the Trustee, which shall be effective 30 days after receipt of such
notice.
10.3 Successor Trustee. If the Trustee resigns or is removed, the
Company shall appoint a successor as soon as possible. If no such appointment
has been made, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
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10.4 Transfers of Assets. Upon resignation or removal of the
Trustee and the appointment of a successor Trustee, all assets of the Trust
must be transferred to the successor Trustee as soon as possible.
10.5 Power of Successor Trustee. The new Trustee shall have all of
the rights and powers of the former Trustee, including ownership rights in the
assets of the Trust. The former Trustee shall execute any instruments the
Company or the successor Trustee reasonably request to evidence the transfer.
10.6 Review of Former Trustee. The successor Trustee need not
examine the records and acts of any prior Trustee and may retain or dispose of
existing Trust assets, subject to this Trust Agreement. The successor Trustee
shall not be responsible for and the Company shall indemnify and defend the
successor Trustee from any claim or liability resulting from any action or
inaction of any prior Trustee or from any other past event or any condition
existing at the time it becomes successor Trustee.
SECTION 11.
Amendment or Termination.
11.1 Amendment. This Trust Agreement may be amended by a written
instrument that the Trustee and the Company execute. No such amendment shall
conflict with the terms of the Plan, subject to the following provisions of
this Section 11.
11.2 Termination. The Trust shall not terminate until the date on
which the Participants and their Beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of the Trust, any
assets remaining in the Trust not needed for the payment of benefits shall be
returned to Company.
SECTION 12.
Miscellaneous
12.1 Miscellaneous. Any provisions of this Trust Agreement
prohibited by law shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
12.2 Non-alienation. Benefits payable to Participants and their
Beneficiaries under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable process.
12.3 Situs of the Trust. The situs of the Trust shall be in the
State of Georgia.
12.4 Governing Law. This Trust Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, except to the
extent preempted by federal law.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust
Agreement to be executed on the 10th day of November, 1999.
COMPANY:
NOVA CORPORATION
By:
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Title:
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ATTEST:
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TRUSTEE:
WACHOVIA BANK, N.A.
By:
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Title:
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ATTEST:
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