EXHIBIT 10.13
AMENDED AND RESTATED
SPLIT-DOLLAR AGREEMENT
AGREEMENT (this "Agreement"), dated as of August 1, 2001, by and among
CONCORD EFS, INC., a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter sometimes called the "Corporation"), THOMAS
R. RENFRO, an individual resident of the State of Tennessee, and GARY G. ARNOLD,
an individual resident of the State of Arizona, Co-Trustees of the DANNY M.
PALMER 1999 TRUST, a trust settled under the laws of the State of Tennessee
(hereinafter called the "Owner"), and DANNY M. PALMER, an individual resident of
the State of Tennessee ("Palmer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Corporation, the Owner and Palmer entered into that certain
Split-Dollar Agreement, dated as of August 1, 1999 (the "1999 Agreement"), which
provided for a "split-dollar" arrangement with respect to a particular life
insurance policy identified in the 1999 Agreement (the "1999 Policy");
WHEREAS, pursuant to Section 8.4 of the 1999 Agreement, the Corporation,
the Owner and Palmer wish to amend and restate the 1999 Agreement to provide for
additional insurance coverage on Palmer's life to be owned by the Owner
thereunder;
WHEREAS, Palmer continues to be a valued officer and employee of the
Corporation and the Corporation desires to retain him in such capacities;
1
WHEREAS, as an inducement to such continued employment, the Corporation
desires to assist Palmer with his personal life insurance program by entering
into this Agreement with Palmer and the Owner;
WHEREAS, the Corporation has determined that this assistance can best be
provided under a "split-dollar" arrangement and the Owner has, under the 1999
Agreement, applied for Insurance Policy No. 1Y000486 (the "1999 Policy") issued
by The New England Life Insurance Company (the "Insurer") in the face amount of
$19,000,000 on Palmer's life;
WHEREAS, the Owner has, under this Agreement, applied for Insurance Policy
No. 1Y200642 (the "2001 Policy", and collectively with the 1999 Policy, the
"Policy") issued by the Insurer in the face amount of $35,000,000 on Palmer's
life; and
WHEREAS, the Corporation and the Owner agree that the Policy shall be
subject to this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Corporation, the Owner and Palmer hereby mutually
covenant and agree as follows;
Section 1. Purchase of the 2001 Policy and Term of Funding Period
1.1 The Owner has previously purchased the 1999 Policy subject to the 1999
Agreement. The Owner will purchase the 2001 Policy contemporaneously with the
execution of this Agreement. The Corporation, Palmer and the Owner agree that
(i) they will take all necessary actions to cause the 2001 Policy to be issued
to the Owner and cause the Policy to conform to the terms of this Agreement, and
(ii) the Policy will be subject to the terms and conditions of this Agreement
and the Collateral Assignment, as that term is defined in Section 3.2 hereof.
2
1.2 The term during which the Corporation will fund the 1999 Policy under
this Agreement shall commence on August 1, 1999 and shall end on the earlier of
August 1, 2009, and the term during which the Corporation will fund the 2001
Policy under this Agreement shall commence on August 1, 2001 and shall end on
the earlier of August 1, 2011, respectively, or the normal retirement date of
Palmer, whichever shall first occur (collectively, the "Term"). For purposes of
this Section 1, the term "normal retirement date" means the latter of (i) the
date of the 65th birthday of Palmer or (ii) the date of the tenth anniversary of
the date of hire of Palmer by the Corporation.
Section 2. Payment of Premiums and Information Reporting
2.1 During the Term, the Corporation agrees to pay all premiums due on the
2001 Policy to the Insurer pursuant to the terms of the 2001 Policy, provided,
however, that the Corporation agrees to pay an amount to the Insurer on the 1999
Policy not to exceed $800,000 per year and on the 2001 Policy not to exceed
$2,200,000 per year. The Corporation shall, upon request of the Owner or Palmer,
promptly furnish the Owner and Palmer evidence of timely payment of such
premiums.
2.2 During the Term, in order to facilitate the payment of premiums on the
Policy, it is agreed that the Corporation (a) annually forward on a timely basis
the amount of premium required under this Agreement and pursuant to the terms of
the Policy to the Insurer, (b) annually furnish Palmer information concerning
the economic benefit reportable by Palmer as gross income for federal income tax
purposes, and (c) annually notify the Owner of the amount of the deemed gift
from Palmer to the Owner.
2.3 The Corporation, the Owner and Palmer believe that neither the 1999
Agreement and the 1999 Policy nor this Agreement and the 2001 Policy are subject
to Internal Revenue
3
Notice 2001-10, 2001-5 IRB 459 (the "Notice"). Notwithstanding the foregoing, if
the parties hereto later determine that either the 1999 Policy or the 2001
Policy are subject to the Notice, or the Internal Revenue Service issues further
guidance concerning the federal income taxation of split-dollar arrangement
subsequent to the date of this Agreement, the Corporation, the Owner and Palmer
reserve the right to amend, restate and modify the Agreement pursuant to such
further guidance.
Section 3. Policy Ownership and Repayment of Premium Payments
3.1 The Owner shall be the sole and absolute owner of the Policy and may
exercise all ownership rights granted to the owner thereof by the terms of the
Policy, except as may otherwise be expressly provided herein. All incidents of
ownership in the Policy are expressly retained by the Owner, including, as
example and not as a limitation of the foregoing, the right to change the
beneficiary of the Policy, the right to borrow on the security of the Policy
(but only to the extent of the difference between (a) the cash value of the
Policy and (b) the cumulative amount of the Corporation's interest in the Policy
in excess of the amount of all outstanding prior loans to the Corporation made
against the Policy); the right to pledge or assign its interest in the Policy
for such loans or advances; the right, in the event of a termination of this
Agreement, to realize against the cash value of the Policy (to the extent such
cash value exceeds the Corporation's interest therein); the right, in the event
of the Employee's death (as defined in Section 8.2 hereof), to exercise
settlement options and realize against the proceeds of the Policy to the extent
said proceeds exceed the Corporation's interest in the Policy; and the right,
subject to the interest of the Corporation to be reimbursed for its interest in
the Policy, to surrender or cancel the Policy. The Owner has the right to assign
its ownership rights to any person or entity
4
it, in its absolute discretion, chooses, but such an assignment will be subject
to the Collateral Assignment, as that term is defined in Section 3.2 hereof, to
the Corporation.
3.2 Except as may otherwise be expressly provided herein, the Corporation
shall have no rights, interests or privileges of ownership in the Policy. To
secure the repayment to the Corporation of the amount due the Corporation under
Section 4.l(a) hereof, the Owner has, contemporaneously herewith, assigned an
interest in the Policy to the Corporation as collateral (the "Collateral
Assignment"), substantially in the form attached hereto as Exhibit A, which
---------
gives the Corporation the limited power to enforce its right to be repaid the
amount due the Corporation under Section 4.l(a) hereof. The Corporation may
neither have nor exercise any right as collateral assignee of the Policy that
could in any way defeat or impair the Owner's right to receive the net cash
surrender value of the Policy decreased by any outstanding Policy loans to the
Owner on the death benefit proceeds of the Policy in excess of the amount due
the Corporation under Section 4.1(a) hereof. The Collateral Assignment shall not
be terminated, altered or amended by the Owner without the express prior written
consent of the Corporation, except that the Owner may assign its ownership
rights to a third party, subject to the Collateral Assignment, as provided in
Section 3.1 hereof.
3.3 The Owner will not exercise any right under the Policy without first
giving the Corporation written notice of the Owner's intention to exercise such
right; provided, however, that a change of beneficiary having no effect on the
Corporation's status as a beneficiary shall not require such notice. The Owner
shall take no action with respect to the Policy that would in any way compromise
or jeopardize the Corporation's right to be repaid the amount due the
Corporation under Section 4.1(a) hereof, without the Corporation's express
written consent.
5
3.4 The Corporation may not, without the prior written consent of the
Owner, exercise its rights under the Policy, including, but not limited to, the
transfer or assignment of its interest in the Policy to any person or entity as
collateral.
Section 4. Beneficiary Provisions
4.1 At the time the life insurance proceeds become payable under the
Policy, the Corporation and the Owner agree the Corporation and the Owner shall
promptly take all action necessary to obtain payment of the death benefit
provided under the Policy from the Insurer of the amount payable under the
Policy, and payment of such death benefit will be divided and paid as follows:
(a) The Corporation, as collateral assignee under the Collateral
Assignment, will be entitled to receive an amount equal to the aggregate
premiums paid by it as of the date of the Employee's death (as defined in
Section 8.2 hereof) reduced by the sum of (i) any amounts previously
received by the Corporation from or to the credit of the Owner as a
repayment of the liabilities created hereunder and (ii) any outstanding
indebtedness incurred by the Corporation and owed to the Insurer which was
secured by the Policy, including interest accrued thereon. If the
Corporation has paid additional premiums attributable to a rider providing
for waiver of premium in the event of the Palmer's disability, the term
"premiums", as used in this Section 4 will not include any premiums waived
pursuant to the terms of such rider while this Agreement is in force; and
(b) The beneficiary or beneficiaries designated by the Owner as then
in effect under the Policy shall receive the balance of the payment of such
death benefit, if any.
6
4.2 It is agreed and understood that receipt by the Corporation of any
death benefit proceeds as a beneficiary under the Policy shall be considered a
repayment of the Corporation's premium payments under Section 4.1(a) hereof to
the extent of such proceeds. To the extent that the Corporation does not receive
death benefit proceeds or in the event that such proceeds are insufficient to
repay the Corporation the amount provided in Section 4.1(a), the Owner shall be
liable for the remaining balance of the amount provided in Section 4.1(a).
Section 5. Termination of Agreement
Notwithstanding anything to the contrary herein, this Agreement shall
terminate on the first to occur of the following:
(a) Express cancellation of this Agreement by the Owner upon ninety
(90) days written notice to the Corporation; or
(b) Lapse or termination of the Policy after mutual written consent
of the Owner and the Corporation to such lapse or termination.
Section 6. Employee Retirement Income Security Act of 1974
6.1 For the purpose of the Employee Retirement Income Security Act of 1974
("ERISA"), the Corporation will be the named fiduciary (the "Named Fiduciary")
and the plan administrator (the "Plan Administrator") of the split-dollar life
insurance arrangement created by this Agreement (the "Plan") for which this
Agreement is hereby designated the written plan instrument.
6.2 The Corporation's Board of Directors may authorize a person or group
of persons to fulfill the responsibilities of the Corporation as Plan
Administrator. The Named Fiduciary or the Plan Administrator may employ others
to render advice with regard to its responsibilities
7
under the Plan. The Named Fiduciary may also allocate fiduciary responsibilities
to others and may exercise any other powers necessary for the discharge of its
duties, to the extent such exercise is not in conflict with ERISA.
6.3 The following claims procedures shall control the determination of
benefit payments under the Plan:
(a) Filing of a Claim for Benefits. Any insured, beneficiary or other
------------------------------
individual ("Claimant") entitled to benefits under the Plan or under the
Policy will file a claim request with the Insurer with respect to such
benefits (the "Claim for Benefits"). The Plan Administrator will, upon
written request of a Claimant, make available copies of any claim forms or
instructions provided by the Insurer or advise the Claimant where copies of
such forms or instructions may be obtained.
(b) Denial of Claim. A Claim for Benefits will be denied if the
---------------
Insurer determines that the Claimant is not entitled to receive such
benefits. Notice of denial shall be furnished to the Claimant within a
reasonable period of time after receipt of the Claim for Benefits by the
Insurer.
(c) Content of Notice. The Insurer shall provide to every Claimant
-----------------
who is denied a Claim for Benefits written notice setting forth, in a
manner calculated to be understood by the Claimant, the following:
1. The specific reason or reasons for the denial;
2. Specific reference to pertinent Plan provisions on which the
denial is based;
8
3. A description of any additional material or information
necessary for the Claimant to perfect the claim, and an explanation of
why such material or information is necessary; and
4. An explanation of the Plan's Claim Review Procedure as set
forth below.
(d) Claim Review Procedure. The purpose of the Claim Review Procedure
----------------------
is to provide a method by which a Claimant may have a reasonable
opportunity to appeal a denial of a Claim for Benefits to the Insurer for a
full and fair review. To accomplish that purpose, the Claimant or his duly
authorized representative:
1. May request a review upon written application to the Insurer;
2. May review pertinent Plan documents; and
3. May submit issues and comments in writing to the Insurer.
A Claimant (or his duly authorized representative) shall request a review
by filing a written application for review with the Insurer at any time
within 60 days after receipt by the Claimant of written notice of the
denial of his Claim for Benefits.
(e) Decision on Review. A decision on review of a denied Claim for
------------------
Benefits shall be made in the following manner:
1. The decision on review shall be made by the Insurer, who may
in its discretion hold a hearing on the denied claim. Such decision
shall be made promptly, and not later than 60 days after receipt of
the request for review, unless special circumstances (such as the need
to hold a hearing) require an extension of time for processing, in
which case a decision shall be rendered as soon as possible, but not
later than 120 days after receipt of the request for review.
9
2. The decision on review shall be in writing and shall include
specific reasons for the decision, written in a manner calculated to
be understood by the Claimant, and specific references to the
pertinent Plan provisions upon which the decision is based.
Section 7. Reorganization
7.1 Nothing contained in this Agreement shall prevent any consolidation or
merger of the Corporation with or into any other corporation or corporations
(whether or not affiliated with the Corporation, or successive consolidations or
mergers in which the Corporation or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance or lease (or successive sales,
conveyances or leases) of all or substantially all of the property of the
Corporation to any other corporation (whether or not affiliated with the
Corporation) authorized to acquire and operate the same and which shall be
organized under the laws of a State of the United States or the District of
Columbia; provided, however, and the Corporation hereby covenants and agrees,
that upon any such consolidation, merger, sale, conveyance or lease, the due and
punctual performance and observance of all of the covenants and conditions of
this Agreement to be performed by the Corporation shall be expressly assumed, by
written instrument executed and delivered to Palmer and the Owner, by the
corporation or corporations (if other than the Corporation) formed by such
consolidation, or into which the Corporation shall have been merged, or by the
corporation or corporations which shall have acquired or leased such property.
7.2 In case of any such consolidation, merger, sale, conveyance or lease,
and upon the assumption, as provided in Section 7.1 above, by the successor
corporation of the due and punctual performance and observance of all covenants
and conditions of this Agreement to be
10
performed by the Corporation, such successor corporation shall succeed to and be
substituted for the Corporation with the same effect as it had been named herein
as the "Bank". In the event of any such consolidation, merger, sale, conveyance
or lease, the party named as the "Bank" in this Agreement or any successor which
shall thereafter have become such in the manner prescribed in Section 7.1 above
may be dissolved, wound-up and liquidated at any time thereafter and such party
shall be released from its liabilities and obligations under this Agreement.
7.3 Except as provided in Section 7.2 above, upon any distribution of
assets of the Corporation, upon any dissolution, winding up, total or partial
liquidation of the Corporation, voluntary or involuntary, or upon any
reorganization or similar proceeding relating to the Corporation or any of its
property, whether, bankruptcy, insolvency or receivership proceedings, or upon a
general assignment for the benefit of creditors, or any other marshalling of the
assets and liabilities of the Corporation (each a "Winding Up"), the Corporation
shall, prior to the taking of any corporate action in furtherance of any Winding
Up, set aside in trust, irrevocably, for the benefit of the Owner, sufficient
funds to satisfy all then-remaining obligations and liabilities of the
Corporation under this Agreement; and if such trust is not established for the
benefit of the Owner, then, upon any payment or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
an amount sufficient to satisfy such obligations and liabilities shall be paid
by the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the Owner in satisfaction of the Corporation's
obligations and liabilities hereunder.
11
Section 8. Miscellaneous Provisions
8.1 This Agreement will be governed by and construed in accordance with
the laws of the State of Tennessee applied without giving effect to any
conflicts-of-law principles.
8.2 For purposes of this Agreement, the phrases, "Employee dies",
"Employee's death" or the "death of the Employee", mean the death of Palmer.
8.3 This Agreement shall not be deemed to constitute a contract of
employment between the parties, nor shall any provision hereof restrict the
right of the Corporation to discharge Palmer, or restrict the right of Palmer to
terminate employment.
8.4 This Agreement sets forth the entire agreement among the parties
concerning the subject matter hereof, and any amendment or discharge will be
made only in writing. This Agreement is binding on, enforceable by and against
and shall benefit the parties, their legal representatives, successors and
assigns. No beneficiary under the Policy shall obtain any vested right to have
this Agreement continued in full.
8.5 (a) Notwithstanding the provisions of this Agreement, any life
insurance company which has issued a policy of insurance which is subject to the
provisions of this Agreement, including, but not limited to, the Insurer and the
Policy, is hereby authorized to act in accordance with the terms of such policy
as if this Agreement did not exist, and the payment or other performance of its
contractual obligations by any such insurance company, in accordance with the
terms of any such policy, shall completely discharge such insurance company from
all claim, suits and demands of all persons whatsoever.
(b) Notwithstanding Section 6 hereof, the Insurer is not deemed a party to
this split-dollar arrangement, is not bound by the split-dollar arrangement, or
deemed to have notice of the provisions of this split-dollar arrangement.
Rather, the Insurer will be bound only by the
12
provisions of and endorsements on the Policy, and any payments made or actions
taken by it in accordance with said provisions or endorsements will fully
discharge it from all claims, suits and demands of all persons whatsoever.
8.6 Whenever possible each provision of this Agreement is to be
interpreted in a manner as to be effective and valid under applicable law, but
if any provision is prohibited or invalid under applicable law, that provision
will be ineffective to the extent of the prohibition or invalidity, without
invalidating the remainder of the provisions or the remaining portions of this
Agreement. To the extent permitted by law, the parties waive any provision of
the law that renders a provision contained in this Agreement prohibited or
unenforceable in any respect.
13
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
affixed their seals as of the date first above written.
CONCORD EFS, INC.
By: /s/ Edward A. Labry
--------------------------------
Its: President
--------------------------------
DANNY M. PALMER 1999 TRUST
By: /s/ Thomas R. Renfro
---------------------------------
Thomas R. Renfro
Its Trustee
By: /s/ Gary G. Arnold
---------------------------------
Gary G. Arnold
Its Trustee
/s/ Danny M. Palmer (L.S.)
--------------------------
DANNY M. PALMER
14