This excerpt taken from the CSGS 10-Q filed Nov 7, 2008.
10.1 Creditor Status. Participants and their Beneficiaries shall have no legal or equitable rights, interests, or claims in or to any particular property or assets of any Employer, nor shall they be beneficiaries of, or have any rights, claims, or interests in or to, any life insurance policies or annuity contracts (or the proceeds therefrom) now owned or which hereafter may be acquired by any Employer (Policies). The respective assets of the Employers and such Policies (if any) shall be, and remain, the general and unrestricted assets of the Employers. Participants and their Beneficiaries are and have the status of general unsecured creditors of the Employers, and the Plan constitutes a mere unfunded and unsecured promise of each Employer to make benefit payments in the future to the Participants employed by such Employer or the Beneficiaries of such Participants. Any trust created by an Employer and any assets held in such trust to assist an Employer in meeting its obligations under the Plan shall conform to the terms of the model trust described in Revenue Procedure 92-64 of the Internal Revenue Service.
10.2 Nonassignability. Neither a Participant nor a Beneficiary nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage, or otherwise encumber, alienate, hypothecate, or convey in advance of actual receipt any amounts payable under the Plan, or any part thereof, all of which are, and all rights to which are, nonassignable and nontransferable. No part of any amounts payable under the Plan shall, prior to actual payment, either be subject to attachment, garnishment, or seizure for the payment of any debts, judgments, alimony, child support, or separate maintenance owed by a Participant or any other person or be transferable by operation of law in the event of a Participants or any other persons bankruptcy or insolvency.
10.3 Not a Contract of Employment. The terms and conditions of the Plan and of any Deferral Agreement entered into pursuant to the Plan do not and shall not be deemed to constitute a contract of employment between any Employer and a Participant, and a Participant (or a Participants Beneficiary) shall have no rights against any Employer under the Plan except as may be specifically provided in the Plan. Moreover, nothing in the Plan shall be deemed to give a Participant any right (i) to be retained in the employ or other service of any Employer for any specific length of time, (ii) to interfere with the right of any Employer to discipline or discharge the Participant at any time, (iii) to hold any particular position or responsibility with any Employer, or (iv) to receive any particular compensation from any Employer.
10.4 Withholding; Payroll Taxes. To the extent required by applicable laws in effect at the time payments are made under the Plan, the Employer making such payments shall withhold from such payments any taxes or other obligations required to be withheld from such payments by federal, state, or local laws.
10.5 Participant Cooperation. Each Participant shall cooperate with such Participants Employer by furnishing any and all information requested by such Participants Employer to facilitate the payment of benefits under the Plan, by taking such physical examinations as such Participants Employer may deem necessary for insurance or other purposes, and by taking such other actions as reasonably may be requested by such Participants Employer.
10.6 Incompetency. If the Committee or its delegate reasonably determines that any Participant or Beneficiary to whom a benefit is payable under the Plan is unable to manage his or her own affairs because of illness or accident, then any payment due such Participant or Beneficiary (unless prior claim therefor shall have been made by a duly authorized guardian or other legal representative) may be paid, upon appropriate indemnification of such Participants Employer, to the person deemed by the Committee or its delegate to have current responsibility for the handling of the affairs of such Participant or Beneficiary. Any such payment shall be a payment for the account of the Participant or Beneficiary and shall be a complete discharge of any liability of such Participants Employer therefor.
10.7 Governing Law. The provisions of the Plan shall be governed by and construed according to the laws of the State of Nebraska.
10.8 Number and Gender. Unless the context otherwise requires, for all purposes of the Plan, words in the singular number include their plural, words in the plural include their singular, and words of one gender include the other genders.
10.9 Section Titles. The titles of the various sections of the Plan are for convenient reference only and shall not be considered in the interpretation of the Plan.
10.10 Severability. If any provision of the Plan is determined by any court to be invalid, then such invalidity shall not affect any other provision of the Plan to which effect reasonably can be given without such invalid provision; and for such purpose the provisions of the Plan shall be severable from one another.
10.11 Successors. The provisions of the Plan shall be binding upon and inure to the benefit of the Employers, each Participant, and each Beneficiary and their respective heirs, personal representatives, successors, and permitted assigns (if any).
10.12 Unfunded Plan. The Plan is and shall be unfunded within the meaning of the Employee Retirement Income Security Act of 1974 (ERISA) for purposes of Title I of ERISA and for income tax purposes.
10.13 Credit for Prior Service. In the sole discretion of the Committee, a Participant may receive credit for purposes of Section 6.2 for his or her prior employment with an employer whose business is acquired by an Employer.
10.14 Effective Date. The Plan became effective on July 17, 1996, upon its approval by the Board.
10.15. Transfer of Employment. A transfer of a Participant from the employ of one Employer to the employ of another Employer shall not be deemed to be a termination of such Participants employment for purposes of the Plan; and such Employers shall arrange (a) for the transfer of such Participants Deferral Account from the books of the former Employer to the books of the
new Employer, (b) for the continuation of such Participants Deferral Agreements under the Plan by such new Employer as if such new Employer had originally been such Participants Employer, and (c) for such Participants continued Participation in the Plan as if such new Employer had originally been such Participants Employer.
10.16 Transition Provisions. The amendments of the Plan approved by the Board on November 16, 1999, will apply to Plan Years beginning after December 31, 1999, and to Deferral Agreements entered into after November 16, 1999. Except as otherwise provided in this Section 10.16, Deferral Agreements in effect on November 16, 1999, will remain in effect in accordance with their terms; however, no deferrals of Base Salary or Incentive Compensation shall be made under such Deferral Agreements for Plan Years after 1999, and as of the first business day of 2000, the balance in a Participants Deferral Account as of the close of business on December 31, 1999, shall be transferred to the Deemed Investments selected by such Participant on or before December 31, 1999. The Committee or its delegate shall provide to each Participant who is expected to have a Deferral Account balance on December 31, 1999, a form for making such Deemed Investment selection; if a Participant fails to make such selection by December 31, 1999, then, as of the first business day of 2000, such Participants Deferral Account balance shall be transferred to a Deemed Investment selected by the Committee, subject to such Participants right to subsequently select other Deemed Investments in accordance with the Plan. For purposes of making the transfer referred to in this Section 10.16, the balance in a Participants Deferral Account shall mean the balance in such Participants Termination Event Sub-Account (as defined in the Plan prior to the amendment of the Plan on November 16, 1999). Prior to December 31, 1999, each Participant who has entered into a Deferral Agreement in effect for Plan Years prior to 2000 may elect, pursuant to Section 7.3 and on a form provided by the Committee or its delegate, to receive his or her Deferral Benefit under such Deferral Agreement at the end of any Plan Year after 1999 to which such Deferral Agreement originally pertained. A Participant who has entered into a Deferral Agreement which is in effect on November 16, 1999, may enter into a new Deferral Agreement for Plan Years after 1999.
10.17 Section 409A. Notwithstanding anything in the Plan to the contrary, the Plan and any amounts payable under the Plan are intended to be eligible for certain regulatory exceptions to the limitations of, or to comply with, the requirements of Section 409A of the Code. The Committee, in the exercise of its sole discretion and without the consent of the Participant, may amend or modify the terms of a Deferral Agreement in any manner and delay the payment of any amounts payable to the minimum extent necessary to reasonably comply with the requirements of Section 409A of the Code; provided, that the Participants Employer shall not be required to assume any increased economic burden. No action so taken by the Committee with respect to the requirements of Section 409A of the Code shall be deemed to adversely affect a Participants rights with respect to an award or to require the consent of such Participant. The Committee reserves the right to make additional changes to the Plan and its operation from time to time to the extent the Committee deems necessary for the purpose of complying with Section 409A of the Code.
10.18 Grandfathered Amounts. The terms of the Plan as set forth on October 3, 2004, shall apply to all Deferral Accounts, or portion thereof, that are both earned and vested (as defined in Section 409A of the Code and the final regulations thereunder) on December 31, 2004 (the Grandfathered Amounts). The Grandfathered Amounts shall be administered and distributed in accordance with the terms of each applicable Deferral Agreement and the Plan as set forth on October 3, 2004, except to the extent any subsequent modification will not increase the benefit available on December 31, 2004 or any other change permitted under Section 409A of the Code. Notwithstanding the foregoing, the Plan is modified as follows in a manner which is not a material modification for purposes of the final Treasury regulations issued pursuant to Section 409A of the Code:
1. Systems may, from time to time, establish or contribute to a trust from which benefits under the Plan are to be paid in accordance with Treas. Reg. § 1.409A-6(a)(4)(i)(A);
2. Systems may, from time to time, modify distributions or amend the Plan with respect to payments to an individual other than the service provider to the extent necessary to comply with a domestic relations order with respect to such payments in accordance with Treas. Reg. § 1.409A-6(a)(4)(i)(C);
3. Notwithstanding Article VII or a Deferral Agreement to the contrary, if a Participants vested Deferral Benefit is less than the applicable annual deferral limit pursuant to Section 402(g)(1)(B) of the Code ($15,500 in 2007) on the date of the Participants death [or Termination of Employment], then the distribution elections set forth in the applicable Deferral Agreements shall be disregarded and the Participants entire vested Deferral Benefit shall be paid in a lump sum distribution within 30 days after the beginning of the first calendar quarter that is at least six months after the Participants death or Termination of Employment in accordance with Treas. Reg. § 1.409A-6(a)(4)(i)(E).
[The provisions of the foregoing Section 10.18
were added to the Plan on August 14, 2007.]
This excerpt taken from the CSGS 8-K filed Dec 15, 2005.
11.1 Expenses. Except as otherwise provided in this Agreement, the Sellers and Purchaser shall each bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby, it being understood that in no event shall the Companies or Subsidiaries bear any of such costs and expenses. Notwithstanding the foregoing, the Sellers and Purchaser shall each be responsible for one-half of the filing fees lawfully payable to or at the request of any Governmental Body in connection with this Agreement.
11.2 Specific Performance. The Sellers acknowledge and agree that a breach of this Agreement would cause irreparable damage to Purchaser and that Purchaser will not have an adequate remedy at law. Therefore, the obligations of the Sellers under this Agreement, including the Sellers obligation to sell the Securities to Purchaser, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any party may have under this Agreement or otherwise.
11.3 Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial.
(a) The parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of New York over any dispute arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by delivery of a copy thereof in accordance with the provisions of Section 11.6.
(c) THE PARTIES TO THIS AGREEMENT EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.4 Entire Agreement; Amendments and Waivers. This Agreement (including the schedules and exhibits hereto), the Seller Documents, the Purchaser Documents and the Side Letter represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right,
power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.
11.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed in such state.
11.6 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision):
If to the Sellers, to:
CSG Systems International, Inc.
7887 East Belleview Avenue
Englewood, CO 80111
United States of America
Attn: Joseph T. Ruble, Senior Vice President and
General Counsel, Corporate Development
Facsimile: (303) 804-4012
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
United States of America
Attn: George R. Bason, Jr.
Facsimile: (212) 450-3800
If to Purchaser, to:
c/o Comverse Technology, Inc.
909 Third Avenue
New York, NY 10022
United States of America
Attn: Paul Robinson, Vice President of Legal and General
Facsimile: (212) 652-6725
With a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
United Stated of America
Attn: David Zeltner, Esq.
Facsimile: (212) 310-8007
11.7 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
11.8 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either the Sellers or Purchaser (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void; provided, however, that Purchaser may assign this Agreement and any or all rights or obligations hereunder (including Purchasers rights to purchase the Securities and Purchasers rights to seek indemnification hereunder) to any Affiliate of Purchaser or any Person to which Purchaser or any of its Affiliates proposes to sell all or substantially all of the assets relating to the business of Purchaser. Upon any such permitted assignment, the references in this Agreement to Purchaser shall also apply to any such assignee unless the context otherwise requires.
(a) No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of Purchaser shall have any Liability for any obligations or liabilities of Purchaser under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.
(b) No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of the Sellers shall have any Liability for any obligations or liabilities of the Sellers under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.
11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.