TRANSACTION SYSTEMS ARCHITECTS, INC.
DEFERRED COMPENSATION PLAN TRUST
This Trust Agreement made effective this 1st day of January, 1999, by
and between Transaction Systems Architects, Inc. (hereinafter called the
"Company") and First American Trust Company (hereinafter called the "Trustee"),
as Trustee.
WITNESSETH:
WHEREAS, Company has adopted the Transaction Systems Architects, Inc.
Deferred Compensation Plan (the "Plan"), a nonqualified deferred compensation
plan; and
WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
and
WHEREAS, Company wishes to establish this trust (hereinafter called
the "Trust") and to contribute to the Trust assets which shall be held as
herein set forth, subject to the claims of Company's creditors in the event of
Company's Insolvency, as herein defined, until paid to Plan participants and
their beneficiaries in such manner and at such times as specified in the Plan;
and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall 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 Title I of the Employee Retirement Income Security Act of
1974; and
WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held, and disposed of as follows:
Section 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust the amount of
$1.00, which shall become the principal of the Trust to be held, administered,
and disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established is revocable by Company; it
shall become irrevocable upon a Change in Control, as defined in Section 13(d).
(c) The Trust is intended to be a grantor trust, of which
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, and
shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall
be held separate and apart from other funds of Company, and, after the Trust
has become irrevocable, shall be used exclusively for the uses and purposes of
Plan participants and general creditors as herein set forth. Plan
participants and their beneficiaries shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured contractual
rights of the Plan participants and their beneficiaries against Company. Any
assets held by the Trust will be subject to the claims of Company's general
creditors under federal and state law in the event of Insolvency, as defined
in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in trust with
Trustee to augment the principal to be held, administered, and disposed of by
Trustee as provided in this Trust Agreement. Neither Trustee nor any Plan
participant or beneficiary shall have any right to compel such additional
deposits.
(f) Within thirty days following a Change in Control (as
defined in Section 13(d)), the Company shall make an irrevocable contribution
to the Trust in an amount that is sufficient to pay the Plan participants or
their beneficiaries the benefits to which the Plan participants or their
beneficiaries would be entitled pursuant to the terms of the Plan as of the
Change in Control. Within such thirty-day period, the Company shall also make
an irrevocable contribution to the Trust in the amount of $10,000 to fund an
expense reserve for the Trustee.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or available under
the Plan), and the time of commencement for payment of such amounts. Except
as otherwise provided herein, Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment
Schedule. At the direction of Company, Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits pursuant to
the terms of the Plan and shall pay amounts withheld to the appropriate taxing
authorities.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by Company, or
such party as it shall designate under the Plan, and any claim for such
benefits shall be considered and reviewed under the procedures set out in the
Plan.
(c) Company may make payment of benefits directly to the Plan
participants or their beneficiaries as they become due under the terms of the
Plan. Company shall notify Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to participants or
their beneficiaries. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in
accordance with the terms of the Plan, Company shall make the balance of each
such payment as it falls due. Trustee shall notify Company where principal
and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to the Trust
Beneficiary When Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if Company is Insolvent. Company shall
be considered "Insolvent" for purposes of this Trust Agreement if (i) Company
is unable to pay its debts as they become due, or (ii) Company is subject to a
pending proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as
provided in Section 1(d) hereof, the principal and income of the Trust shall
be subject to claims of general creditors of Company under federal and state
law as set forth below.
(1) The Board of Directors and the Chief Executive
Officer of Company shall have the duty to inform Trustee in writing of
Company's Insolvency. If a person claiming to be a creditor of Company alleges
in writing to Trustee that Company has become Insolvent, Trustee shall
promptly notify Company in writing of such allegation and, pending
determination of whether Company is Insolvent, Trustee shall discontinue
payment of benefits to Plan participants or their beneficiaries. Company
shall confirm or deny Insolvency in a writing delivered to Trustee within 15
days after receipt from Trustee of such notification. If Company denies the
allegation of Insolvency or fails to respond within such 15 day period,
Trustee shall thereupon determine whether Company is Insolvent. Company
agrees to reimburse Trustee for all reasonable fees and disbursements paid by
Trustee to accountants, financial consultants or other professionals to assist
it in performing its duties pursuant to this Section 3(b)(1).
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a person claiming to be a
creditor alleging that Company is Insolvent, Trustee shall have no duty to
inquire whether Company is Insolvent. Trustee may, in all events, rely on
such evidence concerning Company's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning Company's solvency. Evidence upon which Trustee may rely as
aforesaid includes but is not limited to written notice from any of Company's
Board of Directors, Chief Executive Officer, Chief Financial Officer, a Senior
Vice President or General Counsel, its current independent accountant or
outside attorney, or an accountant or outside attorney employed by Trustee, or
written notice of the appointment of a receiver of any of Company's property
by any court in the United States.
(3) If at any time Trustee has determined that Company
is Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue
their rights as general creditors of Company with respect to benefits due
under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to
Plan participants or their beneficiaries in accordance with Section 2 of this
Trust Agreement only after Trustee has determined that Company is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof, and subsequently resumes such payments, the first payment following
such discontinuance shall include the aggregate amount of all payments due to
Plan participants or their beneficiaries under the terms of the Plan for the
period of such discontinuance, less the aggregate amount of any payments made
to Plan participants or their beneficiaries by Company in lieu of the payments
provided hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, Company shall have no right or power to direct Trustee to return
to Company or to divert to others any of the Trust assets before all payment
of benefits have been made to Plan participants and their beneficiaries
pursuant to the terms of the Plan.
Section 5. Investment Authority.
(a) With respect to the Trust Fund, Trustee shall have the
following powers and rights, in addition to those vested in it elsewhere in
this Trust Agreement or by law:
(1) To invest the Trust Fund in such bonds, notes,
debentures, mortgages, equipment trust certificates, investment trust
certificates, preferred or common stock, equity interests in other entities,
derivatives and futures contracts, insurance and annuity contracts, common or
collective trust funds, shares of investment companies, shares of open-ended
investment companies registered under the Investment Company Act of 1940, as
amended, including any such company for which Trustee, or an affiliate
thereof, is acting as an investment advisor, or in such other property, real
or personal, as Trustee may deem advisable, with the care, skill, prudence,
and diligence under the circumstances then prevailing that a prudent man
acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims; and
(2) To temporarily invest and reinvest the funds in
any marketable short- and medium-term fixed income securities (including
demand and short-term notes and those commonly known as "Master Notes"),
United States Treasury Bills, other short- and medium-term government
obligations, commercial paper, other money market instruments and part
interests in any one or more of the foregoing, or may maintain cash balances
consistent with the liquidity needs of the Plan; and
(3) To invest and reinvest all or any part of the
Trust Fund through the medium of any pooled investment fund or group trust
(which pooled investment fund or group trust may be trusteed by Trustee or one
or more affiliates of Trustee) which is invested principally in the property
of the kind authorized for investment of the Trust Fund; and
(4) To retain, manage, improve, repair, operate, and
control all property, real or personal, at any time comprising part of the
Trust Fund; and
(5) To manage, sell, contract to sell, grant options
to purchase, convey, exchange, partition, lease for any term (even though such
term commences in the future or may extend beyond the duration of the Trust),
and otherwise dispose of the Trust Fund from time to time in such a manner,
for such consideration, and upon such terms and conditions as Trustee, in its
discretion, shall determine; and
(6) Except as otherwise provided in Section 5(d) below
or directed pursuant to 5(c) below, to vote any corporate stock, either in
person or by proxy, for any person; to exercise or sell any stock subscription
or conversion right; to participate in voting trusts; to consent to, take any
action in connection with, and receive and retain any securities resulting
from any merger, consolidation, reorganization, readjustment of the financial
structure, liquidation, sale, lease or other disposition of the assets of any
corporation or other organization the securities of which may constitute a
portion of the Trust Fund; and
(7) To keep any property in the name of a nominee with
or without disclosure of any fiduciary relationship; and
(8) To take any action with respect to conserving or
realizing upon the value of any property in the Trust Fund; to collect, pay,
contest, compromise, or abandon demands of or against the Trust Fund; to pay
any tax, assessment or other charge attributable to the interest of any Plan
participant; and
(9) To deposit securities in a security depository and
permit the securities so deposited to be held in the name of the depository's
nominee, and to deposit securities issued or guaranteed by the United States
government or any agency or instrumentality thereof, including securities
evidenced by book entry rather than by certificate, with the United States
Department of the Treasury, a Federal Reserve Bank, or other appropriate
custodial entity, in the same account as Trustee's own property, provided
Trustee's records and accounts show that such securities are assets of the
Trust Fund; and
(10) Generally, to do all acts, whether or not
expressly authorized, which Trustee deems necessary or desirable, but acting
at all times according to the principles expressed in Section 8.
(b) Trustee shall place securities orders, settle securities
trades, hold securities in custody, and conduct other related activities on
behalf of the Trust in such a fashion so as to obtain for the Trust the best
execution of each securities transaction and full disclosure of all
relationships, including all forms of compensation arrangements, with any
broker or dealer that Trustee may use, including any affiliate of Trustee upon
condition that such broker or agent commission charged by any affiliate of
Trustee shall not exceed that normally charged by such affiliate to its
unaffiliated customers for similar securities transactions. Fees and
commissions paid to a broker or dealer shall be reviewed and approved by
Trustee, prior to using such broker or dealer, as part of its exercise of
care, skill, prudence, and diligence under Section 8(a).
Trustee is authorized to disclose such information as is necessary
to the operation and administration of the Trust to such persons or
organizations that Trustee determines have a legitimate business purpose for
obtaining such information.
(c) Company may direct the Trustee in writing to segregate all
or any portion of the assets of the Trust in a separate account or accounts
and may appoint one or more investment advisors or, prior to a Change in
Control, an investment committee established by Company to direct the
investment and reinvestment of each such account or accounts. Any such
appointment shall be in writing and shall delineate the duties,
responsibilities, and liabilities of the investment advisor or investment
committee with respect to the assets of the Trust under the control of the
investment advisor or investment committee. Any such investment advisor
appointed by Company shall be an independent person or entity, but members of
the investment committee may be employees of Company or any of its
affiliates. Notwithstanding the foregoing, subsequent to a Change in Control
(as defined in Section 13(d)), (i) any appointment or termination of
appointment of an investment advisor by Company requires the prior written
consent of a majority of the Plan participants; and (ii) any account that was
subject to the direction of an investment committee immediately prior to the
Change in Control shall be invested and reinvested by Trustee from and after
the Change in Control, either as a separate investment account or combined
with the other assets of the Trust, in accordance with Sections 5(a), 5(b) and
5(d) hereof unless and until an investment advisor is appointed by Company
with the prior written consent of a majority of the Plan participants for such
account.
Trustee shall be under no duty to question, or make inquiries as to,
any action or direction of any investment advisor or investment committee as
provided herein, or any failure to give directions, or to review the
securities subject to the investment direction of any investment advisor or
investment committee, or to make any suggestions to an investment advisor or
investment committee with respect to investment and reinvestment of, or
disposing of investments in, the assets of the Trust subject to the investment
discretion of any investment advisor or investment committee, unless Trustee
knows that by such action or failure to act it will be participating in a
breach of fiduciary duty by the investment advisor or investment committee.
Notwithstanding the foregoing, the Trustee, without obtaining prior
approval or direction from an investment advisor or investment committee,
shall invest cash balances held by it from time to time in short-term cash
equivalents and, furthermore, shall sell such short-term cash equivalents as
may be necessary to carry out the instructions of an investment advisor or
investment committee.
If the appointment of any investment advisor or investment committee
with respect to a separate account is terminated by the Company without the
appointment of a successor thereto, the separate account may continue to be
maintained as a separate account or may be combined with the other assets of
the Trust in the sole discretion of the Trustee and, in any event, shall be
invested and reinvested by the Trustee in accordance with Sections 5(a), 5(b),
and 5(d) hereof.
(d) Trustee may invest in securities (including stock or rights
to acquire stock) or obligations issued by Company; provided Trustee first
obtains the prior written consent of Company to such investments unless such
investment is a de minimis amount held in common investment vehicles in which
Trustee invests. Except as otherwise provided in Section 5(c), all rights
associated with assets of the Trust shall be exercised by Trustee or the
person designated by Trustee, and shall in no event be exercisable by or rest
with Plan participants, except that voting rights with respect to Trust assets
that are securities or obligations issued by Company will rest with Company.
Company shall have the right, at any time, and from time to time in its sole
discretion, to substitute assets of equal fair market value for any assets
held by the Trust. This right is exercisable by Company in a nonfiduciary
capacity without the approval or consent of any person in a fiduciary capacity.
(e) Each insurance contract or policy issued shall provide that
Trustee shall be the owner thereof with the power to exercise all rights,
privileges, options and elections granted by or permitted under such contract
or policy or under the rules of the insurer. The exercise by Trustee of any
incidents of ownership under any contract or policy shall, prior to a Change
in Control, be subject to the direction of Company. After a Change in
Control, Trustee shall have the right to exercise any incidents of ownership
under any contract or policy in its sole discretion.
Trustee shall have no power to name a beneficiary of the contract or
policy other than the Trust, to assign the contract or policy (as distinct
from conversion of the contract or policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any borrowing
against an insurance contract or policy held in the Trust Fund. However,
notwithstanding the foregoing provisions of this Section 5(e), prior to a
Change in Control, Trustee may loan to Company the proceeds of any borrowing
against an insurance policy held as an asset of the Trust.
No insurer shall be deemed to be a party to the Trust and an
insurer's obligations shall be measured and determined solely by the terms of
contracts, policies and other agreements executed by the insurer.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 60 days following the close of each calendar year
and within 60 days after the removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to
the date of such removal or resignation, setting forth all investments,
receipts, disbursements, and other transactions reported to or effected by it.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant
to a direction, request, or approval given by Company which is contemplated
by, and in conformity with, the terms of the Plan or this Trust, and is given
in writing by Company. The claim of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by the Plan
Committee (as such term is defined in the Plan) in its sole and absolute
discretion under the procedures set out in the Plan. If necessary the Trustee
may apply to a court of competent jurisdiction to resolve a dispute over such
benefit claims or to resolve a dispute between the Company or the Plan
Committee and any party other than the Trustee (or its affiliates), and the
Company shall reimburse the Trustee for all the reasonable costs and expenses
involved.
(b) Trustee may consult with legal counsel (who, prior to a
Change in Control (as defined in Section 13(d)), may also be counsel for
Company generally but who, following a Change in Control, must be independent
legal counsel) with respect to any of its duties or obligations hereunder.
(c) 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.
(d) Trustee shall have, without exclusion, all powers conferred
on Trustee by applicable law, unless expressly provided otherwise herein.
(e) Notwithstanding any powers granted to Trustee pursuant to
this Trust Agreement or to applicable law, Trustee shall not have any power
which could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of Section 301.7701-2 of the
Procedure and Administrative Regulations promulgated pursuant to the Internal
Revenue Code.
(f) No Trustee shall be required to furnish bond or other
security except as herein expressly provided or except if required to do so
under applicable federal law.
(g) In the event of a garnishment, attachment, levy, or other
legal process by a creditor of Company of any of the assets of the Trust under
circumstances set out in Section 3(b) hereof where Trustee cannot ascertain
the Insolvency of Company, Trustee may interplead the assets of the Trust into
the court where the creditor has brought such action.
(h) To the extent permitted by law, Trustee shall be
indemnified and saved harmless by Company from and against any and all claims
of liability, damages, penalties, judgments, expenses, including reasonable
attorneys' fees, to which it is subjected by reason of any act done or omitted
to be done in good faith in connection with the Trust or the investment of the
Trust, including all expenses reasonably incurred in its defense if Company
fails to provide such defense (collectively "Damages"); provided, however,
Trustee shall not be indemnified and saved harmless with respect to Damages
caused by Trustee's willful misconduct, negligence, failure to follow
directions given in accordance with the provisions of the Trust by an
investment advisor, investment committee, Company or any person duly
authorized by Company or, if Trustee is required by law to act without the
receipt of such directions, by its failure to act in the absence of such
directions.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all administrative and Trustee's fees and
expenses, including fees for services provided by persons appointed or hired
pursuant to Sections 3(b)(1), 5(c), 8(b) or 8(c). If not so paid, the fees
and expenses shall be paid from the Trust. Notwithstanding anything to the
contrary in this Section 9, prior to a Change in Control (as defined in
Section 13(d)) neither Company nor the Trust shall have any obligation to pay
any fee or expense attributable to services rendered by a third party unless
Company gave its prior written approval of the appointment, hiring or
retention of such third party. Such prior written consent shall not be
required following a Change in Control.
Section 10. Resignation and Removal of Trustee.
(a) Prior to a Change in Control (as defined in Section 13(d)),
Trustee may resign at any time by written notice to Company, which shall be
effective 60 days after receipt of such notice unless Company and Trustee
agree otherwise. Following a Change in Control, Trustee may resign only after
the appointment of a successor Trustee.
(b) Trustee may be removed by Company on one days notice prior
to a Change in Control. Subsequent to a Change in Control, Trustee may only
be removed by Company with the written consent of a majority of the Plan
participants.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 30 days after
resignation or removal.
(d) If the Trustee resigns or is removed, a successor shall be
appointed by Company, in accordance with Section 11 hereof, by the effective
date of resignation or removal under Sections 10(a) or 10(b). If no such
appointment has been made, Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses
of Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust to the same extent as though Trustee had
received the advance written consent of Company to incurring such expenses.
Section 11. Appointment of Successor.
If Trustee resigns or is removed in accordance with Section 10(a) or
10(b) hereof, Company may appoint, subject to Section 10, any third party
national banking association with capital and surplus exceeding $100,000,000
as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the successor
Trustee. The successor Trustee shall have all of the rights and powers of the
former Trustee, including ownership rights in the Trust assets. The former
Trustee shall execute any instrument necessary or reasonably requested by
Company or the successor Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan unless sooner revoked in accordance with
Section 1(b) hereof. Upon termination of the Trust, any assets remaining in
the Trust shall be returned to Company.
(c) Notwithstanding the foregoing, subsequent to a Change in
Control (as defined in Section 13(d)), this Trust Agreement may only be
amended or terminated by Company with the written consent of a majority of the
Plan participants.
Section 13. Miscellaneous.
(a) 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.
(b) Benefits payable to Plan 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, levy, execution, or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with laws of the State of Nebraska.
(d) For purposes of this Trust Agreement, Change in Control
shall mean the purchase or other acquisition by any person, entity or group of
persons, within the meaning of section 13(d) or 14(d) of the Securities
Exchange Act of 1934 ("Act") , or any comparable successor provisions, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Act) of 30 percent or more of either the outstanding shares of common stock or
the combined voting power of Company's then outstanding voting securities
entitled to vote generally, or the approval by the stockholders of Company of
a reorganization, merger, or consolidation, in each case, with respect to
which persons who were stockholders of Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more than 50 percent of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
Company's then outstanding securities, or of a liquidation or dissolution of
Company or of the sale of all or substantially all of Company's assets.
(e) Until further notice from either party hereto, any notices
delivered pursuant to this Trust Agreement and all other communications shall
be in writing and shall be delivered, sent or transmitted to the persons at
the addresses and facsimile numbers set forth hereunder. All notices and
other communications shall be effective when received. The party seeking to
rely on notice having been given under this paragraph shall be responsible for
ascertaining its receipt.
For Company:
Transaction Systems Architects, Inc.
000 X. 000xx Xxxxxx
Xxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxx
Facsimile No. 000-000-0000
For Trustee:
First American Trust Company
0000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Xxx 00000
Xxx Xxxxx, XX 00000-0000
Attn.: Xxxxxx X. Xxxxx
Facsimile No. 000-000-0000
(f) This Trust Agreement between Company and Trustee contains
the entire understanding between the parties with respect to its subject
matter and, as of the effective date of this Trust Agreement, it supersedes
and entirely replaces any and all prior agreements between Company and Trustee
with respect to the subject matter of this Trust Agreement.
(g) This Trust Agreement shall be binding upon and inure to the
benefit of the parties hereof and their heirs, successors, and assignees.
This Trust Agreement is not assignable by any party without the express
written consent of the other party.
(h) Titles and captions used in this Trust Agreement are
included for convenience of reference only and in no way define or delimit any
provisions or otherwise alter the construction or effect.
(i) Where the context permits, words in the masculine gender
shall include the feminine and neuter genders, the singular shall include the
plural, and the plural shall include the singular.
(j) Each of the parties to this Trust Agreement hereby
represents and warrants that it is duly authorized and empowered to execute,
deliver, and perform this Trust Agreement.
(k) This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
counterparts shall, together, constitute only one agreement.
Section 14. Effective Date.
The effective date of this Trust Agreement shall be the 1st day of
January, 1999.
IN WITNESS WHEREOF, this Trust Agreement is executed as of the day
and year first above written.
TRANSACTION SYSTEMS ARCHITECTS, INC.
ATTEST BY: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
(Principal Financial Officer)
FIRST AMERICAN TRUST COMPANY
as Trustee
ATTEST BY: /s/ Xxxxxxxx Xxxxxxx By /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
