Exhibit 5.1
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John B. Shannon
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Direct Dial: 404-881-7466
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E-mail: john.shannon@alston.com
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September 16, 2010
Global
Payments Inc.
10 Glenlake Parkway, North Tower
Atlanta, Georgia 30328-3473
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Re:
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Form S-8 Registration Statement —
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Global Payments Inc. Non-Qualified Deferred Compensation Plan
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Ladies and Gentlemen:
We have
acted as counsel for Global Payments Inc., a Georgia corporation (the “
Company
”), in connection with the filing of the above-referenced Registration Statement (the “
Registration Statement
”) with the Securities and
Exchange Commission (the “
Commission
”), to register under the Securities Act of 1933, as amended (the “
Securities Act
”), $8,000,000 of deferred compensation obligations, which may be issued by the Company pursuant
to the Global Payments Inc. Non-Qualified Deferred Compensation Plan (the “
Deferred Compensation Plan
”). This opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
We have examined the Amended and Restated Articles of Incorporation of the Company, the Fourth Amended and Restated By-laws of the
Company, records of proceedings of the Board of Directors, or committees thereof, and the shareholders of the Company deemed by us to be relevant to this opinion letter, the Deferred Compensation Plan and the Registration Statement. We also have
made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have relied conclusively upon originals or copies, certified or
otherwise identified to our satisfaction, of such other records, agreements, documents and instruments, including certificates or comparable documents of officers of the Company and of public officials, as we have deemed appropriate as a basis for
the opinion hereinafter set forth, including without limitation, the Company’s representation to us that it has established and will maintain the Deferred Compensation Plan primarily for the purpose of providing compensation to a select group
of management or highly compensated employees, as determined under Sections 201(2), 301(3), and 401(1) of the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”). Except to the extent expressly set forth herein, we
have made no independent investigations with regard to matters of fact, and, accordingly, we do not express
September 16, 2010
Page 2
any opinion or belief as to matters
that might have been disclosed by independent verification. In our examination of relevant documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents
submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies).
Our opinion set forth below is limited to Title I of ERISA and the laws of the State of Georgia that, in our professional judgment, are
normally applicable to transactions of the type contemplated by the Deferred Compensation Plan, and we do not express any opinion herein concerning any other laws.
This opinion letter is provided for use solely in connection with the transactions contemplated by the Deferred Compensation Plan and may
not be used, circulated, quoted or otherwise relied upon for any other purpose without our express written consent. The only opinion rendered by us consists of those matters set forth in the sixth paragraph hereof, and no opinion may be implied or
inferred beyond those expressly stated. Our opinion expressed herein is as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof
that may affect our opinion expressed herein.
Based on the foregoing, it is our opinion that (i) the Company has been
duly authorized to incur the deferred compensation obligations pursuant to the Deferred Compensation Plan, and the deferred compensation obligations, when incurred in accordance with terms and conditions of the Deferred Compensation Plan, will be
valid obligations of the Company to make payment to the holders thereof in accordance with the terms and conditions of the Deferred Compensation Plan; and (ii) the Deferred Compensation Plan is exempt from Parts 2, 3, and 4 of Subtitle B of
Title I of ERISA (respectively, requirements regarding participation and vesting, funding, and fiduciary responsibility), and the plan document complies with the provisions of ERISA from which such plans are not exempt, including Part 5 of Subtitle
B of Title I of ERISA (requirements regarding administration and enforcement).
We consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to the use of our name wherever appearing in the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Sincerely,
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ALSTON & BIRD LLP
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By:
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/s/ John B Shannon
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John B. Shannon, Partner
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Exhibit 99.1
G
LOBAL
P
AYMENTS
I
NC
.
N
ON
-Q
UALIFIED
D
EFERRED
C
OMPENSATION
P
LAN
E
FFECTIVE
S
EPTEMBER
16, 2010
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A
RTICLE
I
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Establishment and Purpose
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1
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A
RTICLE
II
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Definitions
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1
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A
RTICLE
III
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Eligibility and Participation
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8
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A
RTICLE
IV
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Deferrals
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8
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A
RTICLE
V
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Benefits
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11
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A
RTICLE
VI
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Modifications to Payment Schedules
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14
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A
RTICLE
VII
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Valuation of Account Balances; Investments
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14
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A
RTICLE
VIII
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Administration
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15
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A
RTICLE
IX
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Amendment and Termination
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17
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A
RTICLE
X
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Funding
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17
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A
RTICLE
XI
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Claims
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18
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A
RTICLE
XII
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General Provisions
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A
RTICLE
I
Establishment and Purpose
Global
Payments Inc. (the “Company”) hereby adopts the Global Payments Inc. Deferred Compensation Plan (the “Plan”), effective September 16, 2010.
The purpose of the Plan is to attract and retain key employees and non-employee directors by providing each Participant with an opportunity to defer
receipt of a portion of their base salary, bonus, commissions and other specified compensation. The Plan is not intended to meet the qualification requirements of Code Section 401(a), but is intended to meet the requirements of Code
Section 409A, and shall be operated and interpreted consistent with that intent.
The Plan constitutes an unsecured promise by a
Participating Employer to pay benefits in the future. Participants in the Plan shall have the status of general unsecured creditors of the Company or the Adopting Employer, as applicable. Each Participating Employer shall be solely responsible for
the payment of the benefits of its employees and their beneficiaries. The Plan is unfunded for federal tax purposes and is intended to be an unfunded arrangement for eligible employees who are part of a select group of management or highly
compensated employees of the Employer within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. Any amounts set aside to defray the liabilities assumed by the Company will remain the general assets of the Company and shall remain
subject to the claims of the Company’s creditors until such amounts are distributed to the Participants.
A
RTICLE
II
Definitions
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2.1
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Account.
Account means a bookkeeping account maintained by the Committee to record the payment obligation of the Participating Employer to a Participant as
determined under the terms of the Plan. The Committee may maintain an Account to record the total obligation to a Participant and component Accounts to reflect amounts payable at different times and in different forms. Reference to an Account means
any such Account established by the Committee, as the context requires. Accounts are intended to constitute unfunded obligations within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.
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2.2
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Account Balance.
Account Balance means, with respect to any Account, the total payment obligation owed to a Participant from such Account as of the most recent
Valuation Date.
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2.3
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Adopting Employer.
Adopting Employer means an Affiliate who, with the consent of the Company, has adopted the Plan for the benefit of its eligible employees.
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2.4
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Affiliate.
Affiliate means a corporation, trade or business that, together with the Company, is treated as a single employer under Code Section 414(b) or
(c).
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2.5
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Beneficiary.
Beneficiary means a natural person, estate, or trust designated by a Participant to receive payments to which a Beneficiary is
entitled in accordance with
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provisions of the Plan. The Participant’s spouse, if living, otherwise the Participant’s estate, shall be the Beneficiary if: (i) the Participant has failed to properly designate a
Beneficiary, or (ii) all designated Beneficiaries have predeceased the Participant.
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A former spouse
shall have no interest under the Plan, as Beneficiary or otherwise.
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2.6
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Business Day
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A Business Day is each day on which the New York Stock Exchange is open for business.
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2.7
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Change in Control
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Change in Control, with respect to a Participating Employer that is organized as a corporation, shall mean:
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(a)
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The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) or the acquisition during the 12 month period ending on the date of the most recent acquisition by such Person) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of the combined voting power of the then outstanding voting securities of the Participating Employer entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition by a Person who is on the Effective Date the beneficial owner of 35% or more of the
Outstanding Company Voting Securities, (ii) any acquisition directly from the Participating Employer, (iii) any acquisition by the Participating Employer which reduces the number of Outstanding Company Voting Securities and thereby results
in any person having beneficial ownership of more than 35% of the Outstanding Company Voting Securities and thereby results in any person having beneficial ownership of more than 35% of the Outstanding Company Voting Securities, (iv) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (v) any acquisition by any corporation pursuant to a transaction which complies with clauses
(i) and (ii) of subsection (b) of this Section 2.7; or
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(b)
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Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Participating
Employer (a “Business Combination”) in each case, unless, immediately following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the Participating Employer
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or all or substantially all of the Participating Employer’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately
prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, and (ii) no Person (excluding the Participating Employer or any employee benefit plan (or related trust)
of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 35% or more of the combined voting power of the then outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination; or
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(c)
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Notwithstanding anything in this definition to the contrary, a restructuring or separation of any line of business from the Company will not of itself constitute a
Change in Control
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For the avoidance of doubt and notwithstanding the foregoing, a Change in Control shall not
occur for purposes of this Plan unless the circumstances giving rise to such Change in Control meet any description or definition of “change in control event” in Section 409A of the Code and applicable regulations (without giving
effect to any elective provisions that may be available under such definition).
An event constitutes a Change in Control with
respect to a Participant only if the Participant performs services for the Participating Employer that has experienced the Change in Control, or the Participant’s relationship to the affected Participating Employer otherwise satisfies the
requirements of Treasury Regulation Section 1.409A-3(i)(5)(ii).
The determination as to the occurrence of a Change in
Control shall be based on objective facts and in accordance with the requirements of Code Section 409A.
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2.8
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Claimant.
Claimant means a Participant or Beneficiary filing a claim under Article XI of this Plan.
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2.9
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Code.
Code means the Internal Revenue Code of 1986, as amended from time to time.
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2.10
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Code Section 409A.
Code Section 409A means section 409A of the Code, and regulations and other guidance issued by the Treasury Department and Internal
Revenue Service thereunder. References to such section or guidance in this Plan include references to such provisions as they may be modified.
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2.11
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Committee.
Committee means the committee appointed by the Board of Directors of the Company (or the appropriate committee of such board) to administer the Plan.
If no designation is made, the Chief Executive Officer of the Company or his delegate shall have and exercise the powers of the Committee.
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2.12
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Company.
Company means Global Payments Inc.
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(a)
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Eligible Employee. Compensation means base salary, bonus, sales commissions, and such other cash or equity-based compensation (if any) approved by the Committee as
Compensation that may be deferred under this Plan.
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(b)
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Non-Employee Director. Compensation means the annual retainer fees and meeting fees.
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2.14
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Compensation Deferral Agreement.
Compensation Deferral Agreement means an agreement between a Participant and a Participating Employer that specifies
(i) the amount of each component of Compensation that the Participant has elected to defer to the Plan in accordance with the provisions of Article IV, and (ii) the Payment Schedule applicable to one or more Accounts. The Committee may
permit different deferral amounts for each component of Compensation and may establish a minimum or maximum deferral amount for each such component. Unless otherwise specified by the Committee in the Compensation Deferral Agreement, Participants may
defer up to 100% of their base salary and up to 100% of other types of Compensation for a Plan Year. A Compensation Deferral Agreement may also specify the investment allocation described in Section 7.4.
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2.15
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Death Benefit.
Death Benefit means the benefit payable under the Plan to a Participant’s Beneficiary(ies) upon the Participant’s death as provided in
Section 5.1 of the Plan.
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2.16
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Deferral.
Deferral means a credit to a Participant’s Account(s) that records that portion of the Participant’s Compensation that the Participant has
elected to defer to the Plan in accordance with the provisions of Article IV. Unless the context of the Plan clearly indicates otherwise, a reference to Deferrals includes Earnings attributable to such Deferrals.
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Deferrals shall be calculated with respect to the gross cash Compensation payable to the Participant prior to any deductions or
withholdings, but shall be reduced by the Committee as necessary so that it does not exceed 100% of the cash Compensation of the Participant remaining after deduction of all required income and employment taxes, other employee benefit deductions,
and other deductions required by law. Changes to payroll withholdings that affect the amount of Compensation being deferred to the Plan shall be allowed only to the extent permissible under Code Section 409A.
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2.17
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Disability Benefit.
Disability Benefit means the benefit payable under the Plan to a Participant in the event such Participant is determined to be Disabled.
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2.18
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Disabled.
Disabled means that a Participant is, by reason of any medically-determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less than twelve months, (i) unable to engage in any substantial gainful activity, or (ii) receiving income replacement benefits for a period of not less than three
months under an accident and health plan covering
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employees of the Participant’s employer. The Committee shall determine whether a Participant is Disabled in accordance with Code Section 409A provided, however, that a Participant shall
be deemed to be Disabled if determined to be totally disabled by the Social Security Administration or the Railroad Retirement Board.
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2.19
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Earnings.
Earnings mean an adjustment to the value of an Account in accordance with Article VII.
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2.20
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Effective Date.
This Plan is effective September 16, 2010.
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2.21
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Eligible Employee.
Eligible Employee means a member of a “select group of management or highly compensated employees” of a Participating Employer
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, as determined by the Committee from time to time in its sole discretion.
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2.22
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Employee.
Employee means a common-law employee of an Employer.
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2.23
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Employer.
Employer means, with respect to Employees it employs, the Company and each Affiliate.
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2.24
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ERISA.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
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2.25
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Fiscal Year Compensation.
Fiscal Year Compensation means Compensation earned during one or more consecutive fiscal years of a Participating Employer.
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2.26
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Non-Employee Director.
Non-Employee Director means a director of the Company who is not an employee of the Company or any of its Affiliates.
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2.27
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Participant.
Participant means an Eligible Employee who has received notification of his or her eligibility to defer Compensation under the Plan under
Section 3.1, a Non-Employee Director and any other person with an Account Balance greater than zero, regardless of whether such individual continues to be an Eligible Employee or a Non-Employee Director. A Participant’s continued
participation in the Plan shall be governed by Section 3.2 of the Plan.
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2.28
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Participating Employer.
Participating Employer means the Company or any Adopting Employer.
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2.29
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Payment Schedule.
Payment Schedule means the date as of which payment of an Account under the Plan will commence and the form in which payment of such Account
will be made.
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2.30
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Performance-Based Compensation.
Performance-Based Compensation means Compensation where the amount of, or entitlement to, the Compensation is
contingent on the satisfaction of pre-established organizational or individual performance criteria
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relating to a performance period of at least twelve consecutive months. Organizational or individual performance criteria are considered pre-established if established in writing by not later
than ninety (90) days after the commencement of the period of service to which the criteria relate, provided that the outcome is substantially uncertain at the time the criteria are established. The determination of whether Compensation
qualifies as “Performance-Based Compensation” will be made in accordance with Treas. Reg. Section 1.409A-1(e) and subsequent guidance.
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2.31
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Plan.
Generally, the term Plan means the “Global Payments Inc. Non-Qualified Deferred Compensation Plan” effective as of September 16, 2010 and as
may be further amended from time to time hereafter. However, to the extent permitted or required under Code Section 409A, the term Plan may in the appropriate context also mean a portion of the Plan that is treated as a single plan under Treas.
Reg. Section 1.409A-1(c), or the Plan or portion of the Plan and any other nonqualified Non-Qualified Retirement Plan or portion thereof that is treated as a single plan under such section.
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2.32
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Plan Year.
Plan Year means January 1 through December 31 except for the initial Plan Year which shall be from September 16, 2010 through
December 31, 2010.
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2.33
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Separation from Service.
An Employee incurs a Separation from Service upon termination of employment with the Employer other than due to death or Disability.
Whether a Separation from Service has occurred shall be determined by the Committee in accordance with Code Section 409A.
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Except in the case of an Employee on a bona fide leave of absence as provided below, an Employee is deemed to have incurred a Separation
from Service if the Employer and the Employee reasonably anticipated that the level of services to be performed by the Employee after a date certain would be reduced to 20% or less of the average services rendered by the Employee during the
immediately preceding 36-month period (or the total period of employment, if less than 36 months) disregarding periods during which the Employee was on a bona fide leave of absence.
An Employee who is absent from work due to military leave, sick leave, or other bona fide leave of absence shall incur a Separation from
Service on the first date immediately following the later of (i) the six-month anniversary of the commencement of the leave or (ii) the expiration of the Employee’s right, if any, to reemployment under statute or contract.
Notwithstanding the preceding, however, an Employee who is absent from work due to a physical or mental impairment that is expected to result in death or last for a continuous period of at least six months and that prevents the Employee from
performing the duties of his position of employment or a similar position shall incur a Separation from Service on the first date immediately following the 29-month anniversary of the commencement of the leave.
For purposes of determining whether a Separation from Service has occurred, the Employer means the Employer as defined in
Section 2.23 of the Plan, except that for
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purposes of determining whether another organization is an Affiliate of the Company, common ownership of at least 50% shall be determinative.
A Non-Employee Director is deemed to have incurred a Separation from Service upon the ceasing of all services as a director constituting a
“separation from service” (as that term is defined at Treas. Reg. § 1.409A-1(h)) from the Company and any of its Affiliates.
The Committee specifically reserves the right to determine whether a sale or other disposition of substantial assets to an unrelated party
constitutes a Separation from Service with respect to a Participant providing services to the seller immediately prior to the transaction and providing services to the buyer after the transaction. Such determination shall be made in accordance with
the requirements of Code Section 409A.
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2.34
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Specified Date Account.
A Specified Date Account means an Account established pursuant to Section 4.3 that will be paid (or that will commence to be paid)
at a future date and in the form of payment specified in the Participant’s Compensation Deferral Agreement. Unless otherwise determined by the Committee, a Participant may maintain an unlimited number of Specified Date Accounts.
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2.35
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Specified Date Benefit.
Specified Date Benefit means the benefit payable to a Participant under the Plan in accordance with Section 5.1(b).
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2.36
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Specified Employee.
For purposes of this Plan, the term “Specified Employee” has the meaning given such term in Code Section 409A,
provided,
however
, that, as permitted in the final Section 409A regulations, the Company’s Specified Employees and its application of the six-month delay rule of Code Section 409A(a)(2)(B)(i) shall be determined in accordance with rules
adopted by the Board of Directors or a committee thereof, which shall be applied consistently with respect to all nonqualified deferred compensation arrangements of the Company, including this Plan.
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2.37
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Substantial Risk of Forfeiture.
Substantial Risk of Forfeiture shall have the meaning specified in Treas. Reg. Section 1.409A-1(d).
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2.38
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Termination Account.
Termination Account means an Account established pursuant to Section 4.3 that will be paid (or that will commence to be paid) following
the Participant’s Separation from Service and in the form of payment specified in the Participant’s Compensation Deferral Agreement. Unless the Participant has established a Specified Date Account, all Deferrals shall be allocated to a
Termination Account payable in a lump sum on behalf of the Participant. Unless otherwise determined by the Committee, a Participant may maintain an unlimited number of Termination Accounts.
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2.39
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Termination Benefit.
Termination Benefit means the benefit payable to a Participant under the Plan following the Participant’s Separation from Service.
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2.40
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Unforeseeable Emergency.
An Unforeseeable Emergency means a severe financial hardship to the Participant resulting from an illness or accident
of the Participant, the
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Participant’s spouse, the Participant’s dependent (as defined in Code section 152(a)), or a Beneficiary; loss of the Participant’s property due to casualty (including the need to
rebuild a home following damage to a home not otherwise covered by insurance, for example, as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the
Participant. The types of events which may qualify as an Unforeseeable Emergency may be limited by the Committee.
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2.41
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Valuation Date.
Valuation Date shall mean each Business Day.
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A
RTICLE
III
Eligibility and Participation
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3.1
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Eligibility and Participation.
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(a)
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An Eligible Employee becomes a Participant upon notification of eligibility to participate.
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(b)
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A Non-Employee Director becomes a Participant when such individual becomes a Non-Employee Director.
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3.2
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Duration.
A Participant shall be eligible to defer Compensation subject to the terms of the Plan, for as long as such Participant remains an Eligible Employee or
a Non-Employee Director. A Participant who is no longer an Eligible Employee or a Non-Employee Director but has not Separated from Service may not defer Compensation under the Plan but may otherwise exercise all of the rights of a Participant under
the Plan with respect to his or her Account(s). On and after a Separation from Service, a Participant shall remain a Participant as long as his or her Account Balance is greater than zero and during such time may continue to make allocation
elections as provided in Section 7.4. An individual shall cease being a Participant in the Plan when all benefits under the Plan to which he or she is entitled have been paid
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A
RTICLE
IV
Deferrals
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4.1
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Deferral Elections, Generally.
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(a)
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A Participant may elect to defer Compensation by submitting a Compensation Deferral Agreement during the enrollment periods established by the
Committee and in the manner specified by the Committee, but in any event, in accordance with Section 4.2. A Compensation Deferral Agreement that is not timely filed with respect to a service period or component of Compensation shall be
considered void and shall have no effect with respect to such service period or Compensation. The Committee may modify any Compensation Deferral
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Agreement prior to the date the election becomes irrevocable under the rules of Section 4.2.
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(b)
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The Participant shall specify on his or her Compensation Deferral Agreement the amount of Deferrals and whether to allocate Deferrals to a Termination Account or to a
Specified Date Account. If no designation is made or if a designation is invalid (for example, because it fails to defer Compensation for at least two years, Deferrals (or that portion of Deferrals allocated invalidly) shall be allocated to the
Termination Account and paid in a lump sum following the Participant’s Separation from Service in accordance with Section 5.1. A Participant may also specify in his or her Compensation Deferral Agreement the Payment Schedule applicable to
his or her Plan Accounts. If the Payment Schedule is not specified in a Compensation Deferral Agreement, the Deferrals shall be allocated to the Participant’s Termination Account and the Deferrals shall be paid in a lump sum following the
Participant’s Separation from Service in accordance with Section 5.1.
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4.2
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Timing Requirements for Compensation Deferral Agreements.
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(a)
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First Year of Eligibility.
In the case of the first year in which an Eligible Employee or a Non-Employee Director becomes eligible to participate in the Plan, he
or she has up to 30 days following his initial eligibility to submit a Compensation Deferral Agreement with respect to Compensation to be earned during such year. The Compensation Deferral Agreement described in this paragraph becomes irrevocable
upon the end of such 30-day period. The determination of whether an Eligible Employee or a Non-Employee Director may file a Compensation Deferral Agreement under this paragraph shall be determined in accordance with the rules of Code
Section 409A, including the provisions of Treas. Reg. Section 1.409A-2(a)(7).
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A Compensation Deferral
Agreement filed under this paragraph applies to Compensation earned on and after the date the Compensation Deferral Agreement becomes irrevocable.
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(b)
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Prior Year Election.
Except as otherwise provided in this Section 4.2, Participants may defer Compensation by filing a Compensation Deferral Agreement no
later than December 31 of the year prior to the year in which the Compensation to be deferred is earned. A Compensation Deferral Agreement described in this paragraph shall become irrevocable with respect to such Compensation as of
January 1 of the year in which such Compensation is earned.
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(c)
|
Performance-Based Compensation.
Participants may file a Compensation Deferral Agreement with respect to Performance-Based Compensation no later than the date
that is six months before the end of the performance period, provided that:
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(i)
|
the Participant performs services continuously from the later of the beginning of the performance period or the date the criteria are established through the date the
Compensation Deferral Agreement is submitted; and
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(ii)
|
the Compensation is not readily ascertainable as of the date the Compensation Deferral Agreement is filed.
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A Compensation Deferral Agreement becomes irrevocable with respect to Performance-Based Compensation as of the day immediately following
the latest date for filing such election. Any election to defer Performance-Based Compensation that is made in accordance with this paragraph and that becomes payable as a result of the Participant’s death or disability (as defined in Treas.
Reg. Section 1.409A-1(e)) or upon a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)) prior to the satisfaction of the performance criteria, will be void.
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(d)
|
Sales Commissions.
Sales commissions (as defined in Treas. Reg. Section 1.409A-2(a)(12)(i)) are considered to be earned in the taxable year of the
Participant in which the sale occurs. The Compensation Deferral Agreement must be filed before the last day of the year preceding the year in which the sales commissions are earned and becomes irrevocable after that date.
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(e)
|
Fiscal Year Compensation.
A Participant may defer Fiscal Year Compensation by filing a Compensation Deferral Agreement prior to the first day of the fiscal year
or years in which such Fiscal Year Compensation is earned. The Compensation Deferral Agreement described in this paragraph becomes irrevocable on the first day of the fiscal year or years to which it applies.
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(f)
|
Short-Term Deferrals.
Compensation that meets the definition of a “short-term deferral” described in Treas. Reg. Section 1.409A-1(b)(4) may be
deferred in accordance with the rules of Article VII, applied as if the date the Substantial Risk of Forfeiture lapses is the date payments were originally scheduled to commence, provided, however, that the provisions of Section 6.3 shall not
apply to payments attributable to a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)).
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4.3
|
Allocation of Deferrals
. A Compensation Deferral Agreement may allocate Deferrals to one or more Specified Date Accounts and/or to one of more Termination
Accounts. The Committee may, in its discretion, establish a minimum deferral period for Specified Date Accounts (for example, the second Plan Year following the year Compensation subject to the Compensation Deferral Agreement is earned).
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4.4
|
Deductions from Pay.
The Committee has the authority to determine the payroll practices under which any component of Compensation subject to a Compensation
Deferral Agreement will be deducted from a Participant’s Compensation.
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4.5
|
Vesting.
Participant Deferrals shall be 100% vested at all times.
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4.6
|
Cancellation of Deferrals.
The Committee shall cancel a Participant’s Deferrals (i) for the balance of the Plan Year in which an Unforeseeable
Emergency payment is made, and (ii) during periods in which the Participant is unable to perform the duties of his or her position or any substantially similar position due to a mental or physical impairment that can be expected to result in
death or last for a continuous period of at least six months.
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V
Benefits
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5.1
|
Benefits, Generally.
A Participant shall be entitled to the following benefits under the Plan:
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(a)
|
Termination Benefit.
Upon the Participant’s Separation from Service for reasons other than death or Retirement, he or she shall be entitled to a Termination
Benefit with respect to each such Termination Account, The Termination Benefit shall be equal to the amount of the Participant’s Termination Account, based on the value of that Account as of the last business day of the month in which
Separation from Service occurs. Subject to Section 5.4 hereof, the payment date for the Termination Benefit will be as soon as administratively feasible following the last day of the month in which Separation from Service occurs, but no later
than 60 days following the last day of the month in which Separation from Service occurs provided, however, that with respect to a Participant who is a Specified Employee as of the date such Participant incurs a Separation from Service, payment will
be made on the first day of the seventh month following the month in which such Separation from Service occurs.
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(b)
|
Specified Date Benefit.
If the Participant has established one or more Specified Date Accounts, he or she shall be entitled to a Specified Date Benefit with
respect to each such Specified Date Account. The Specified Date Benefit shall be equal to the amount of the Participant’s Specified Date Account, based on the value of that Account as of the last business day of the month for the month and year
designated by the Participant at the time the Account was established, regardless of whether the Participant remains actively employed at the time of distribution of the Specified Date Benefit. Subject to Section 5.4 hereof, the payment date
for the Specified Date Benefit will be as soon as administratively feasible following the last day of the designated month in the designated year, but no later than 60 days following the last day of the designated month in the year designated by the
Participant.
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(c)
|
Death Benefit.
In the event of the Participant’s death, his or her designated Beneficiary(ies) shall be entitled to a Death Benefit. The
Death Benefit shall be equal to the amount of the Participant’s Termination Accounts and the amount of any unpaid balances in any Specified Date Accounts. The Death Benefit shall be based on the value of the Accounts as of the last business day
of the month in
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|
|
which death occurred. Subject to Section 5.4 hereof, the payment date for the Death Benefit will as soon as administratively feasible following the last day of the month after the Committee
receives notice of the death of the Participant, but no later than 60 days following the last day of the month in which the Committee received notice of the Participant’s death.
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(d)
|
Disability Benefit.
Upon a determination by the Committee that a Participant is Disabled, he or she shall be entitled to a Disability Benefit. The Disability
Benefit shall be equal to the amount of the Participant’s Termination Accounts and the amount of any unpaid balances in any Specified Date Accounts. The Disability Benefit shall be based on the value of the Accounts as of the last business day
of the month during which the Participant was judged by the Committee to have incurred a Disability. Subject to Section 5.4 hereof, the payment date for the Disability Benefit will be as soon as administratively feasible following the last day
of the month in which the Participant was determined to be Disabled by the Committee, but no later than 60 days following the last day of the month in which such determination occurred.
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(e)
|
Unforeseeable Emergency Payments.
A Participant who experiences an Unforeseeable Emergency may submit a written request to the Committee to receive payment of
all or any portion of his or her vested Accounts. Whether a Participant or Beneficiary is faced with an Unforeseeable Emergency permitting an emergency payment shall be determined by the Committee based on the relevant facts and circumstances of
each case, but, in any case, a distribution on account of Unforeseeable Emergency may not be made to the extent that such emergency is or may be reimbursed through insurance or otherwise, by liquidation of the Participant’s assets, to the
extent the liquidation of such assets would not cause severe financial hardship, or by cessation of Deferrals under this Plan. An approval of a payment due to an Unforeseeable Emergency is subject to the discretion of the Committee. If an emergency
payment is approved by the Committee, the amount of the payment shall not exceed the amount reasonably necessary to satisfy the need, taking into account the additional compensation that is available to the Participant as the result of cancellation
of deferrals to the Plan, including amounts necessary to pay any taxes or penalties that the Participant reasonably anticipates will result from the payment. The amount of the emergency payment shall be subtracted first from the Participant’s
Termination Accounts until depleted and then from the vested Specified Date Accounts, beginning with the Specified Date Account with the latest payment commencement date. Emergency payments shall be paid in a single lump sum within the 60-day period
following the date the payment is approved by the Committee.
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(a)
|
Termination Benefit.
The Termination Benefit shall be paid in a single lump sum, unless the Participant elects on the Compensation Deferral
Agreement to have
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|
|
such benefit paid substantially equal annual installments over a period of two to ten years, as elected by the Participant.
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(b)
|
Specified Date Benefit.
The Specified Date Benefit shall be paid in a single lump sum, unless the Participant elects on the Compensation Deferral Agreement with
which the account was established to have the Specified Date Account paid in substantially equal annual installments over a period of two to ten years, as elected by the Participant.
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(c)
|
Death Benefit.
A designated Beneficiary who is entitled to receive a Death Benefit shall receive payment of such benefit in a single lump sum.
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(d)
|
Disability Benefit.
A Participant who is entitled to receive a Disability Benefit shall receive payment of such benefit in a single lump sum.
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|
(e)
|
Small Account Balances.
The Committee may, in its sole discretion which shall be evidenced in writing no later than the date of payment, elect to pay the value
of the Participant’s Accounts upon a Separation from Service in a single lump sum if the balance of such Accounts is not greater than the applicable dollar amount under Code Section 402(g)(1)(B), provided the payment represents the
complete liquidation of the Participant’s interest in the Plan.
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(f)
|
Rules Applicable to Installment Payments.
If a Payment Schedule specifies installment payments, annual payments will be made beginning as of the payment
commencement date for such installments and subsequent installment payments shall be paid on each January 15 thereafter until the number of installment payments specified in the Payment Schedule has been paid. The amount of each installment
payment shall be determined by dividing (a) by (b), where (a) equals the Account Balance as of the Valuation Date and (b) equals the remaining number of installment payments.
|
For purposes of Article V, installment payments will be treated as a single form of payment.
|
5.3
|
Acceleration of or Delay in Payments.
The Committee, in its sole and absolute discretion, may elect to accelerate the time or form of payment of a benefit owed
to the Participant hereunder, provided such acceleration is permitted under Treas. Reg. Section 1.409A-3(j)(4). The Committee may also, in its sole and absolute discretion, delay the time for payment of a benefit owed to the Participant
hereunder, to the extent permitted under Treas. Reg. Section 1.409A-2(b)(7).
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5.4
|
Payments Treated as Made on the Designated Payment Date.
Payments made on the payment date specified in the Plan, or on a later date within the
same taxable year of the Participant or Beneficiary, or, if later, by the fifteenth
(15
th
) day of the third calendar month following the
payment date specified in the Plan shall be treated as having been made on the payment date; provided, however, that the Participant or Beneficiary is not
|
- 13 -
|
|
permitted, directly or indirectly, to designate the taxable year of the payment. In addition, payments made no earlier than 30 days before the designated payment date will likewise be treated as
having been made on the payment date so long as the Participant or Beneficiary is not permitted, directly or indirectly, to designate the taxable year of the payment. The foregoing shall be administered in compliance with the provisions of
Regulation 1.409A-3(d), which Regulation may authorize other instances in which payments made after the payment date shall be treated as having been made on the payment date.
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A
RTICLE
VI
Modifications to Payment Schedules
|
6.1
|
Participant’s Right to Modify.
A Participant may modify any or all of the alternative Payment Schedules with respect to an Account, consistent with the
permissible Payment Schedules available under the Plan, provided such modification complies with the requirements of this Article VI.
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|
6.2
|
Time of Election.
The date on which a modification election is submitted to the Committee must be at least twelve months prior to the date on which payment is
scheduled to commence under the Payment Schedule in effect prior to the modification.
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|
6.3
|
Date of Payment under Modified Payment Schedule.
The date payments are to commence under the modified Payment Schedule must be no earlier than five years after
the date payment would have commenced under the original Payment Schedule. Under no circumstances may a modification election result in an acceleration of payments in violation of Code Section 409A.
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|
6.4
|
Effective Date.
A modification election submitted in accordance with this Article VI is irrevocable upon receipt by the Committee and becomes effective 12 months
after such date.
|
|
6.5
|
Effect on Accounts.
An election to modify a Payment Schedule is specific to the Account or payment event to which it applies, and shall not be construed to
affect the Payment Schedules of any other Accounts.
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A
RTICLE
VII
Valuation of Account Balances; Investments
|
7.1
|
Valuation.
Deferrals shall be credited to appropriate Accounts on the date such Compensation would have been paid to the Participant absent the Compensation
Deferral Agreement. Valuation of Accounts shall be performed under procedures approved by the Committee.
|
|
7.2
|
Earnings Credit.
Each Account will be credited with Earnings on each Business Day, based upon the Participant’s investment allocation among a menu of
investment options selected in advance by the Committee, in accordance with the provisions of this Article VII (“investment allocation”).
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- 14 -
|
7.3
|
Investment Options.
Investment options will be determined by the Committee. The Committee, in its sole discretion, shall be permitted to add or remove investment
options from the Plan menu from time to time, provided that any such additions or removals of investment options shall not be effective with respect to any period prior to the effective date of such change.
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|
7.4
|
Investment Allocations.
A Participant’s investment allocation constitutes a deemed, not actual, investment among the investment options comprising the
investment menu. At no time shall a Participant have any real or beneficial ownership in any investment option included in the investment menu, nor shall the Participating Employer or any trustee acting on its behalf have any obligation to purchase
actual securities as a result of a Participant’s investment allocation. A Participant’s investment allocation shall be used solely for purposes of adjusting the value of a Participant’s Account Balances.
|
A Participant shall specify an investment allocation for each of his Accounts in accordance with procedures established by the Committee.
Except as otherwise provided by the Committee, the following provisions of this Section 7.4 shall apply to allocations under the Plan. Allocation among the investment options must be designated in increments of 1%. The Participant’s
investment allocation will become effective on the same Business Day or, in the case of investment allocations received after a time specified by the Committee, the next Business Day.
A Participant may change an investment allocation on any Business Day, both with respect to future credits to the Plan and with respect to
existing Account Balances, in accordance with procedures adopted by the Committee. Changes shall become effective on the same Business Day or, in the case of investment allocations received after a time specified by the Committee, the next Business
Day, and shall be applied prospectively.
|
7.5
|
Unallocated Deferrals and Accounts.
If the Participant fails to make an investment allocation with respect to an Account, such Account shall be invested in an
investment option, the primary objective of which is the preservation of capital, as determined by the Committee.
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A
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VIII
Administration
|
8.1
|
Plan Administration.
This Plan shall be administered by the Committee which shall have discretionary authority to make, amend, interpret and enforce all
appropriate rules and regulations for the administration of this Plan and to utilize its discretion to decide or resolve any and all questions, including but not limited to eligibility for benefits and interpretations of this Plan and its terms, as
may arise in connection with the Plan. Claims for benefits shall be filed with the Committee and resolved in accordance with the claims procedures in Article XI.
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|
8.2
|
Administration Upon Change in Control.
Upon a Change in Control of the Company (not of an Adopting Employer), the Committee, as constituted
immediately prior to such
|
- 15 -
|
|
Change in Control, shall continue to act as the Committee. The individual who was the Chief Executive Officer of the Company (or if such person is unable or unwilling to act, the next highest
ranking officer) prior to the Change in Control shall have the authority (but shall not be obligated) to appoint an independent third party to act as the Committee.
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Upon such Change in Control, the Company may not remove the Committee, unless 2/3rds of the members of the Board of Directors of the
Company and a majority of Participants and Beneficiaries with Account Balances consent to the removal and replacement of the Committee. Notwithstanding the foregoing, neither the Committee nor the officer described above shall have authority to
direct investment of trust assets under any rabbi trust described in Section 11.2.
The Company shall, with respect to the
Committee identified under this Section, (i) pay all reasonable expenses and fees of the Committee, (ii) indemnify the Committee (including individuals serving as Committee) against any costs, expenses and liabilities including, without
limitation, attorneys’ fees and expenses arising in connection with the performance of the Committee hereunder, except with respect to matters resulting from the Committee’s gross negligence or willful misconduct and (iii) supply full
and timely information to the Committee on all matters related to the Plan, any rabbi trust, Participants, Beneficiaries and Accounts as the Committee may reasonably require.
|
8.3
|
Withholding.
The Participating Employer shall have the right to withhold from any payment due under the Plan (or with respect to any amounts credited to the
Plan) any taxes required by law to be withheld in respect of such payment (or credit). Withholdings with respect to amounts credited to the Plan shall be deducted from Compensation that has not been deferred to the Plan.
|
|
8.4
|
Indemnification.
The Participating Employers shall indemnify and hold harmless each employee, officer, director, agent or organization, to whom or to which are
delegated duties, responsibilities, and authority under the Plan or otherwise with respect to administration of the Plan, including, without limitation, the Committee and its agents, against all claims, liabilities, fines and penalties, and all
expenses reasonably incurred by or imposed upon him, her or it (including but not limited to reasonable attorney fees) which arise as a result of his or its actions or failure to act in connection with the operation and administration of the Plan to
the extent lawfully allowable and to the extent that such claim, liability, fine, penalty, or expense is not paid for by liability insurance purchased or paid for by the Participating Employer. Notwithstanding the foregoing, the Participating
Employer shall not indemnify any person or organization if his, her or its actions or failure to act are due to gross negligence or willful misconduct or for any such amount incurred through any settlement or compromise of any action unless the
Participating Employer consents in writing to such settlement or compromise.
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|
8.5
|
Delegation of Authority.
In the administration of this Plan, the Committee may, from time to time, employ agents and delegate to them such administrative duties
as it sees fit, and may from time to time consult with legal counsel who shall be legal counsel to the Company.
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- 16 -
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8.6
|
Binding Decisions or Actions.
The decision or action of the Committee in respect of any question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and regulations thereunder shall be final and conclusive and binding upon all persons having any interest in the Plan.
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IX
Amendment
and Termination
|
9.1
|
Amendment and Termination.
The Company may at any time and from time to time amend the Plan or may terminate the Plan as provided in this Article IX. Each
Participating Employer may also terminate its participation in the Plan.
|
|
9.2
|
Amendments.
The Company, by action taken by its Board of Directors, may amend the Plan at any time and for any reason, provided that any such amendment shall not
reduce the vested Account Balances of any Participant accrued as of the date of any such amendment or restatement (as if the Participant had incurred a voluntary Separation from Service on such date) or reduce any rights of a Participant under the
Plan or other Plan features with respect to Deferrals made prior to the date of any such amendment or restatement without the consent of the Participant. The Board of Directors of the Company may delegate to the Committee the authority to amend the
Plan without the consent of the Board of Directors for the purpose of (i) conforming the Plan to the requirements of law, (ii) facilitating the administration of the Plan, (iii) clarifying provisions based on the Committee’s
interpretation of the document and (iv) making such other amendments as the Board of Directors may authorize.
|
|
9.3
|
Termination.
The Company, by action taken by its Board of Directors, may terminate the Plan and pay Participants and Beneficiaries their Account Balances in a
single lump sum at any time, to the extent and in accordance with Treas. Reg. Section 1.409A-3(j)(4)(ix). If a Participating Employer terminates its participation in the Plan, the benefits of affected Employees shall be paid at the time
provided in Article V.
|
|
9.4
|
Application of Code Section 409A.
The Plan is intended to constitute a plan of deferred compensation that meets the requirements for deferral of income
taxation under Code Section 409A. The Committee, pursuant to its authority to interpret the Plan, is to interpret the Plan in a manner so as to comply with Section 409A.
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A
RTICLE
X
Funding
|
10.1
|
General Assets.
Obligations established under the terms of the Plan may be satisfied from the general funds of the Participating Employers, or a
trust described in this Article X. No Participant, spouse or Beneficiary shall have any right, title or interest whatsoever in assets of the Participating Employers. Nothing contained in this Plan, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind, or a fiduciary relationship, between the Participating Employers and any Employee, spouse, or Beneficiary. To the extent that any person acquires a right to receive
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- 17 -
|
|
payments hereunder, such rights are no greater than the right of an unsecured general creditor of the Participating Employer.
|
|
10.2
|
Establishment of Trust.
The Company may, in its sole discretion, establish a grantor trust, commonly known as a rabbi trust, as a vehicle for accumulating assets
to pay benefits under the Plan. Payments under the Plan may be paid from the general assets of the Participating Employer or from the assets of any such rabbi trust. Payment from any such source shall reduce the obligation owed to the Participant or
Beneficiary under the Plan. Notwithstanding the foregoing, upon a Change in Control, if the Company has not already done so, it shall establish a rabbi trust, and each Participating Employer shall, as soon as possible, but in no event longer than 5
days following the Change in Control, as defined herein, make an irrevocable lump sum contribution to the Trust for the Global Payments Inc. Non-Qualified Deferred Compensation Plan (the “Trust”) in an amount that is sufficient to pay each
Participant or Beneficiary the Benefits to which Participants or their Beneficiaries would be entitled pursuant to the terms of the Plan as of the date on which the Change of Control occurred.
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A
RTICLE
XI
Claims
|
11.1
|
Filing a Claim.
Any controversy or claim arising out of or relating to the Plan shall be filed in writing with the Committee which shall make all determinations
concerning such claim. Any claim filed with the Committee and any decision by the Committee denying such claim shall be in writing and shall be delivered to the Participant or Beneficiary filing the claim (the “Claimant”).
|
|
|
(a)
|
In General.
Notice of a denial of benefits (other than Disability benefits) will be provided within ninety (90) days of the Committee’s receipt of the
Claimant’s claim for benefits. If the Committee determines that it needs additional time to review the claim, the Committee will provide the Claimant with a notice of the extension before the end of the initial ninety (90) day period. The
extension will not be more than ninety (90) days from the end of the initial ninety (90) day period and the notice of extension will explain the special circumstances that require the extension and the date by which the Committee expects
to make a decision.
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|
|
(b)
|
Disability Benefits.
Notice of denial of Disability benefits will be provided within forty-five (45) days of the Committee’s receipt
of the Claimant’s claim for Disability benefits. If the Committee determines that it needs additional time to review the Disability claim, the Committee will provide the Claimant with a notice of the extension before the end of the initial
forty-five (45) day period. If the Committee determines that a decision cannot be made within the first extension period due to matters beyond the control of the Committee, the time period for making a determination may be further extended for
an additional thirty (30) days. If such an additional extension is necessary, the Committee shall notify the Claimant prior to the expiration of the initial thirty (30) day extension. Any notice of extension shall indicate the
circumstances necessitating the
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- 18 -
|
|
extension of time, the date by which the Committee expects to furnish a notice of decision, the specific standards on which such entitlement to a benefit is based, the unresolved issues that
prevent a decision on the claim and any additional information needed to resolve those issues. A Claimant will be provided a minimum of forty-five (45) days to submit any necessary additional information to the Committee. In the event that a
thirty (30) day extension is necessary due to a Claimant’s failure to submit information necessary to decide a claim, the period for furnishing a notice of decision shall be tolled from the date on which the notice of the extension is sent
to the Claimant until the earlier of the date the Claimant responds to the request for additional information or the response deadline.
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|
|
(c)
|
Contents of Notice.
If a claim for benefits is completely or partially denied, notice of such denial shall be in writing and shall set forth the reasons for
denial in plain language. The notice shall (i) cite the pertinent provisions of the Plan document and (ii) explain, where appropriate, how the Claimant can perfect the claim, including a description of any additional material or
information necessary to complete the claim and why such material or information is necessary. The claim denial also shall include an explanation of the claims review procedures and the time limits applicable to such procedures, including a
statement of the Claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse decision on review. In the case of a complete or partial denial of a Disability benefit claim, the notice shall provide a
statement that the Committee will provide to the Claimant, upon request and free of charge, a copy of any internal rule, guideline, protocol, or other similar criterion that was relied upon in making the decision.
|
|
11.2
|
Appeal of Denied Claims.
A Claimant whose claim has been completely or partially denied shall be entitled to appeal the claim denial by filing a written appeal
with a committee designated to hear such appeals (the “Appeals Committee”). A Claimant who timely requests a review of the denied claim (or his or her authorized representative) may review, upon request and free of charge, copies of all
documents, records and other information relevant to the denial and may submit written comments, documents, records and other information relevant to the claim to the Appeals Committee. All written comments, documents, records, and other information
shall be considered “relevant” if the information (i) was relied upon in making a benefits determination, (ii) was submitted, considered or generated in the course of making a benefits decision regardless of whether it was relied
upon to make the decision, or (iii) demonstrates compliance with administrative processes and safeguards established for making benefit decisions. The Appeals Committee may, in its sole discretion and if it deems appropriate or necessary,
decide to hold a hearing with respect to the claim appeal.
|
|
|
(a)
|
In General.
Appeal of a denied benefits claim (other than a Disability benefits claim) must be filed in writing with the Appeals Committee no
later than sixty (60) days after receipt of the written notification of such claim denial. The Appeals Committee shall make its decision regarding the merits of the denied
|
- 19 -
|
|
claim within sixty (60) days following receipt of the appeal (or within one hundred and twenty (120) days after such receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim). If an extension of time for reviewing the appeal is required because of special circumstances, written notice of the extension shall be furnished to the Claimant prior to the commencement of the
extension. The notice will indicate the special circumstances requiring the extension of time and the date by which the Appeals Committee expects to render the determination on review. The review will take into account comments, documents, records
and other information submitted by the Claimant relating to the claim without regard to whether such information was submitted or considered in the initial benefit determination.
|
|
|
(b)
|
Contents of Notice.
If a benefits claim is completely or partially denied on review, notice of such denial shall be in writing and shall set forth the reasons
for denial in plain language.
|
The decision on review shall set forth (i) the specific reason or reasons
for the denial, (ii) specific references to the pertinent Plan provisions on which the denial is based, (iii) a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all
documents, records, or other information relevant (as defined above) to the Claimant’s claim, and (iv) a statement describing any voluntary appeal procedures offered by the plan and a statement of the Claimant’s right to bring an
action under Section 502(a) of ERISA.
|
11.3
|
Legal Action.
A Claimant may not bring any legal action, including commencement of any arbitration, relating to a claim for benefits under the Plan unless and
until the Claimant has followed the claims procedures under the Plan and exhausted his or her administrative remedies under such claims procedures.
|
If a Participant or Beneficiary prevails in a legal proceeding brought under the Plan to enforce the rights of such Participant or any
other similarly situated Participant or Beneficiary, in whole or in part, the Participating Employer shall reimburse such Participant or Beneficiary for all legal costs, expenses, attorneys’ fees and such other liabilities incurred as a result
of such proceedings. If the legal proceeding is brought in connection with a Change in Control, or a “change in control” as defined in a rabbi trust described in Section 11.2, the Participant or Beneficiary may file a claim directly
with the trustee for reimbursement of such costs, expenses and fees. For purposes of the preceding sentence, the amount of the claim shall be treated as if it were an addition to the Participant’s or Beneficiary’s Account.
|
11.4
|
Discretion of Appeals Committee.
All interpretations, determinations and decisions of the Appeals Committee with respect to any claim shall be made in its sole
discretion, and shall be final and conclusive.
|
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A
RTICLE
XII
General Provisions
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12.1
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Anti-assignment Rule.
No interest of any Participant, spouse or Beneficiary under this Plan and no benefit payable hereunder shall be assigned as security for a
loan, and any such purported assignment shall be null, void and of no effect, nor shall any such interest or any such benefit be subject in any manner, either voluntarily or involuntarily, to anticipation, sale, transfer, assignment or encumbrance
by or through any Participant, spouse or Beneficiary. The Company may assign any or all of its liabilities under this Plan in connection with any restructuring, recapitalization, sale of assets or other similar transactions affecting a Participating
Employer without the consent of the Participant.
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12.2
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No Legal or Equitable Rights or Interest.
No Participant or other person shall have any legal or equitable rights or interest in this Plan that are not expressly
granted in this Plan. Participation in this Plan does not give any person any right to be retained in the service of the Participating Employer. The right and power of a Participating Employer to dismiss or discharge an Employee is expressly
reserved. The Participating Employers make no representations or warranties as to the tax consequences to a Participant or a Participant’s beneficiaries resulting from a deferral of income pursuant to the Plan.
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12.3
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No Employment Contract.
Nothing contained herein shall be construed as constituting a contract or agreement between an Employee and a Participating Employer or a
Non-Employee Director and the Company to the effect that the Employee will be employed by the Employer or continue as a director of the Company for any specific time.
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12.4
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Notice.
Any notice or filing required or permitted to be delivered to the Committee under this Plan shall be delivered in writing, in person, or through such
electronic means as is established by the Committee. Notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Written transmission
shall be sent by certified mail to:
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GLOBAL PAYMENTS INC.
ATTN: CHAIR OF THE RETIREMENT COMMITTEE
10 GLENLAKE PARKWAY NW
ATLANTA, GEORGIA 30328
Any notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing or
hand-delivered, or sent by mail to the last known address of the Participant.
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12.5
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Headings.
The headings of Sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this
Plan, the text shall control.
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12.6
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Invalid or Unenforceable Provisions.
If any provision of this Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof and the Committee may elect in its sole discretion to construe such invalid or unenforceable provisions in a manner that conforms to applicable law or as if such provisions, to the extent invalid or unenforceable, had not
been included.
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12.7
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Lost Participants or Beneficiaries.
Any Participant or Beneficiary who is entitled to a benefit from the Plan has the duty to keep the Committee advised of his
or her current mailing address. If benefit payments are returned to the Plan or are not presented for payment after a reasonable amount of time, the Committee shall presume that the payee is missing. The Committee, after making such efforts as in
its discretion it deems reasonable and appropriate to locate the payee, shall stop payment on any uncashed checks and may discontinue making future payments until contact with the payee is restored.
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12.8
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Facility of Payment to a Minor.
If a distribution is to be made to a minor, or to a person who is otherwise incompetent, then the Committee may, in its
discretion, make such distribution (i) to the legal guardian, or if none, to a parent of a minor payee with whom the payee maintains his or her residence, or (ii) to the conservator or committee or, if none, to the person having custody of
an incompetent payee. Any such distribution shall fully discharge the Committee, the Company, and the Plan from further liability on account thereof.
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12.9
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Governing Law.
To the extent not preempted by ERISA, the laws of the State of Georgia shall govern the construction and administration of the Plan.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the undersigned executed this Plan as of the 16th day of September, 2010, to be
effective as of the Effective Date.
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Global Payments Inc.
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By:
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Suellyn P. Tornay
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(Print Name)
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Its:
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Corporate Secretary
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(Title)
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/s/ Suellyn P. Tornay
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(Signature)
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Global Payment Holding Company
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By:
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Suellyn P. Tornay
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(Print Name)
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Its:
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Corporate Secretary
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(Title)
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/s/ Suellyn P. Tornay
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(Signature)
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