UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 31, 2007
DST SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-14036 43-1581814
(Commission File Number) (I.R.S. Employer Identification No.)
333 West 11th Street, Kansas City, Missouri 64105
(Address of principal executive offices) (Zip Code)
(816) 435-1000
Registrant's telephone number, including area code
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.
The Compensation Committee of the Board of Directors of DST Systems, Inc.
(the "Company") has approved an amendment and restatement, effective December
31, 2007, of each of several rabbi trusts. The Company maintains the unfunded
trusts in connection with separation pay provisions of employment agreements,
continuing accounts under the Executive Plan and the Supplemental Executive
Retirement Plan, the Directors' Deferred Fee Plans (terminated and current), and
incentive compensation to be paid under the 2005 Equity Incentive Plan.
Upon the occurrence of certain triggering events described in each trust
(e.g., a change in control of the Company), the Company may in its discretion
fund each trust equal to the sum of the payout obligations under the applicable
plans or agreements. If the Company fails to honor obligations under such plans
or agreements on or after a change in control and the trusts have been funded by
the Company, the trusts are to distribute the required amounts to the obligees.
No amounts are currently payable under the trusts, as no change in control and
failure to meet plan or agreement obligations has occurred. The amounts payable
by any funded trusts would depend on amounts due and owing under the applicable
benefit plans or employment agreements at the time of events triggering trust
account distributions.
The trusts require the Company to be solvent to distribute trust accounts.
Trust assets are subject to creditor claims in the event of the Company's
bankruptcy. Until a change in control (as defined in the trusts) occurs, the
Compensation Committee may revoke the trusts.
The Compensation Committee has restated the trusts to incorporate numerous
historical amendments, regulatory updates, and the updated change in control
definition the Board of Directors adopted in connection with the 2005 Equity
Incentive Plan. Absent Compensation Committee action, the trusts will expire
December 31, 2012. The form of trust agreement attached hereto replaces the form
trust agreement and amendments thereto listed as Exhibits 10.7.1 through 10.7.4
to the Company's Form 10-K Annual Report for 2006. This summary does not purport
to be complete and is qualified in its entirety by reference to the form of
trust agreement attached hereto.
ITEM 9.01 Financial Statements and Exhibits
(d). Exhibits.
Exhibit
Number Description
10.1 Form of Trust Agreement between the Company as settlor and
Marshall & Ilsley Trust Company as trustee
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized on this 7th day of January, 2008.
DST SYSTEMS, INC.
By: /s/ Randall D. Young
Name: Randall D. Young
Title: Vice President, General Counsel, Secretary
EXHIBIT 10.1
FOURTH AMENDMENT TO AND RESTATEMENT OF
TRUST AGREEMENT
DST - EXECUTIVE PLAN, SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN, AND INCENTIVE DEFERRED CASH PROGRAM
This Fourth Amendment to and Restatement of Trust Agreement made as of
this 13th day of December, 2007, to be effective as of December 31, 2007, by DST
Systems, Inc., as Settlor.
WHEREAS, DST Systems, Inc., as Settlor, and United Missouri Bank of
Kansas City, N.A., as Trustee, executed a Trust Agreement, TUA DST - Executive
Plan and Supplemental Executive Retirement Plan, #25-368-04, on October 20,
1995, which has been amended from time to time, the most recent amendment being
the Third Amendment of Trust Agreement dated December 16, 2004 (the Trust
Agreement, as amended by such amendments, is herein referred to as the "Amended
Trust Agreement"), which Third Amendment reflected the change in Trustee to
Marshall & Ilsley Trust Company, N.A.;
WHEREAS, under Section 12(a) of said Amended Trust Agreement, Settlor
reserved the right at any time prior to a Control Change Date, as defined in
Section 1(f) of said Amended Trust Agreement, to amend or revoke the same, in
whole or in part, which right Settlor now desires to exercise;
WHEREAS, as of this date, no Control Change Date has occurred;
NOW, THEREFORE, pursuant to the right reserved to Settlor under Section
12(a) thereof, Settlor does hereby further amend said Amended Trust Agreement by
revoking in full Sections 1 through 15 thereof and providing new Sections 1
through 16 to read as follows, such amendment to be effective on the date
hereof:
Section 1. Definitions.
As used herein, the following terms shall have the following meanings:
(a) "Nonqualified Plan" shall mean the nonqualified deferred
compensation Plan as listed in Appendix A, as the same is in effect on
the Control Change Date;
(b) "Beneficiary" or "Beneficiaries" shall mean an individual
or entity or individuals or entities who are or who become entitled to
receive a benefit under the Nonqualified Plan;
(c) "Employee" shall mean an individual who, as of the earlier
of a Control Change Date or the date of a Solicitation of a Change in
Control of Company, is or was an employee of Company or of one
Company's subsidiaries or affiliates and either is a participant in the
Nonqualified Plan or is a former participant in the Nonqualified Plan
who has not yet received all amounts due him under the Nonqualified
Plan;
(d) "Supplemental Benefits" shall mean those benefits payable
under the terms of the Nonqualified Plan; (e) "Change in Control of
Company" shall be deemed to have occurred if:
(1) the Incumbent Directors cease for any reason to
constitute at least seventy-five percent (75%) of the
directors of Company then serving;
(2) any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Exchange Act) other than Company or
any majority-owned subsidiary of Company, or an employee
benefit plan of Company or of any majority-owned subsidiary of
Company shall have become the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) directly or indirectly,
of securities of Company representing twenty percent (20%) or
more (calculated in accordance with Rule 13d-3) of the
combined voting power of Company's then outstanding Voting
Securities; provided, however, that a person's becoming such a
beneficial owner shall not constitute a Change in Control of
Company if such person is party to an agreement that limits
the ability of such person and its affiliates (as defined in
Rule 12b-2 under the Exchange Act) to obtain and exercise
control over the management and policies of Company;
(3) a Reorganization Transaction is consummated,
other than a Reorganization Transaction which results in the
Voting Securities of Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of
the surviving entity) at least sixty percent (60%) of the
total voting power represented by the Voting Securities of
such surviving entity outstanding immediately after the
Reorganization Transaction, if the voting rights of each
Voting Security relative to the other Voting Securities were
not altered in the Reorganization Transaction; or
(4) the stockholders of Company approve a plan of
complete liquidation of Company, other than in connection with
a Reorganization Transaction.
For purposes of this Section 1(e) and the definition of Change in
Control of Company, the following terms have the meaning set forth below:
(A) "Incumbent Directors" means (i) an individual who was a
member of the Company Board of Directors on the date thisamendment was
signed; or (ii) an individual whose election, or nomination for
election by Company's stockholders, was approved by a vote of at least
seventy-five percent (75%) of the members of the Company Board of
Directors then still in office who were members of the Company Board of
Directors on such date; or (iii) individuals whose election, or
nomination for election by Company's stockholders, was approved by a
vote of at least seventy-five percent (75%) of the members of the
Company Board of Directors then still in office who were elected in the
manner described in (i) or (ii) above; provided that no director whose
election was in connection with A proposed transaction which, if
consummated, would be a Change in Control shall be an Incumbent
Director;
(B) "Related Party" means (i) a majority-owned subsidiary of
Company; or (ii) an employee or group of employees of Company or of any
majority-owned subsidiary of Company; or (iii) an employee benefit plan
of Company or of any majority-owned subsidiary of Company; or (iv) a
corporation owned directly or indirectly by the stockholders of Company
in substantially thE same proportion as their ownership of the voting
power of Voting Securities of Company.
(C) "Reorganization Transaction" means a merger,
reorganization, consolidation, or similar transaction or a sale of all
or substantially all of Company's assets other than any such sale which
would result in a Related Party owning or acquiring more than fifty
percent (50%) of the assets owned by Company immediately prior to the
sale.
(D) "Voting Securities" of a corporation means securities of
such corporation that are entitled to vote generally in the election of
directors, but not including any other class of securities of such
corporation that may have voting power by reason of the occurrence of a
contingency.
(E) "Control Change Date" shall be the date on which a Change
in Control of Company occurs;
(F) "Insolvent" shall mean (i)Company is unable to pay its
debts as they mature or (ii)Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code;
(G) "Trust Account" shall mean the separate account that
Trustee shall establish and maintain for each Employee under this
Trust;
(H) "Beneficiary of a Trust Account" shall mean the Employee
for whom such Trust Account is maintained and any individual or entity
who is or becomes entitled to receive such Employee's Supplemental
Benefits under the terms of the Nonqualified Plan; and
(I) "Solicitation of a Change in Control of Company" shall be
deemed to have occurred if (i) a "person" as such term is used in
Sections 13(d) and 14(d)(a) of the Securities Exchange Act of 1934 (the
"Exchange Act") other than Company, any wholly-owned subsidiary of
Company, an employee benefit plan of Company or of any majority-owned
subsidiary of Company (regardless of whether such ownership is
determined by equity interest or voting power) or any entity holding
shares of Company's common stock for or pursuant to the terms of any
such plan, commences, or announces an intention to commence any action
to effect, or which would reasonably result in a Change in Control of
Company.
Section 2. Purpose.
The purpose of this Trust is solely to secure to the Beneficiaries any
rights that they may have or may become entitled to under the terms of the
Nonqualified Plan to the extent that the Company is not Insolvent at the time
the Beneficiary is entitled to payment of Supplemental Benefits. This Trust is
not intended to and shall not be construed to create or provide any additional
rights, beyond such security, to Beneficiaries beyond those rights created by
the Nonqualified Plan.
Section 3. Trust Fund.
(a) Subject to the claims of its creditors as set forth in
Section 5, Company hereby deposits with Trustee, in trust, Five Dollars
($5.00), which shall become the principal of the Trust to be held,
administered and disposed of by Trustee as provided in this Trust
Agreement.
(b) Company may at any time or from time to time make
additional deposits of cash or other property in trust with Trustee to
be added to the principal of the Trust and to be held, administered and
disposed of by Trustee as provided in this Trust Agreement. Neither
Trustee nor any Beneficiary shall have any right to compel such
additional deposits.
(c) The Trust hereby established shall be revocable by the
Company until a Control Change Date as provided in Section 1(f) hereof;
thereafter, the Trust shall be irrevocable and not subject to change,
alteration, or amendment by Company, and except as provided in Section
13 hereof, Company shall have no right or power whatsoever to terminate
in whole or in part the trust estate herein created, and except as
provided in Sections 6 and 13 hereof, in no event shall any of the
property subject to the terms and provisions hereof revert to Company.
(d) The Trust is intended to be a grantor trust, of which
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A, of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
(e) The principal of the Trust, and any earnings thereon,
shall be held separate and apart from other funds of Company and shall
be used exclusively for the uses and purposes of and general creditors
as herein set forth. Neither a Beneficiary, nor the Nonqualified Plan,
shall have any preferred claim on, or any beneficial ownership interest
in, any assets of the Trust. Any rights created under the Nonqualified
Plan and this Trust Agreement shall be mere unsecured contractual
rights of a Beneficiary against Company. Any assets held by the Trust
will be subject to the claims of Company's general creditors under
federal and state law in the event of Insolvency, as defined in Section
1(g) herein.
Section 4. Payments to Beneficiary.
(a) At the time of any contribution to the Trust, other than
the initial contribution, the trust estate not heretobefore divided
shall be divided and segregated into separate Trust Accounts for each
Employee in proportion to the bookkeeping accounts that Company
maintains for each Employee under the Nonqualified Plan. Each such
Trust Account shall continue in trust and be separately held and
distributed as provided below. Prior to a Control Change Date, any
income earned on a Trust Account, if not distributed as provided below,
shall be accumulated and added to the principal of such Trust Account.
(b) On and after the Control Change Date (or earlier, if the
Board of Directors of Company so notified Trustee in writing), if and
to the extent that Company breaches its obligation under the
Nonqualified Plan to provide Supplemental Benefits:
(1) Subject to Section 5 below, Trustee shall make
payments of Supplemental Benefits to the Beneficiary of a
Trust Account from the net income derived from such Trust
Account, and from the principal thereof if and to the extent
such net income is not sufficient, in accordance with the
terms of the Nonqualified Plan. Any net income not so
distributed shall be accumulated and periodically added to the
principal of such Trust Account. The Trustee shall make
provision for the reporting and withholding of any federal,
state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of
the Plan and shall pay amounts withheld to the appropriate
taxing authorities or determine that such amounts have been
reported, withheld and paid by Company.
(2) The entitlement of a Beneficiary to benefits
under the Plan shall be determined by Company or such party as
it shall designate under the Plan, and any claim for such
benefits shall be considered and reviewed under the procedures
set out in the Plan.
(3) Company may make payment of benefits directly to
Beneficiaries as they become due under the terms of the Plan.
Company shall notify Trustee of its decision to make payment
of benefits directly prior to the time amounts are payable to
Beneficiaries. In addition, if the principal of the Trust, and
any earnings thereon, are not sufficient to make payments of
benefits in accordance with the terms of the Plan, Company
shall make the balance of each such payment as it falls due.
Trustee shall notify Company where principal and earnings are
not sufficient.
(4) If there are assets remaining in any Trust
Account at the time that all payments of Supplemental Benefits
required to be made to any Beneficiary of such Trust Account
under the terms of the Nonqualified Plan have been made, such
remaining assets will be allocated pro rata among and added to
all other remaining Trust Accounts.
Section 5. Trustee Responsibility Regarding Payments to Trust
Beneficiary When Company Insolvent.
(a) At all times during the continuance of this Trust, as
provided in Section 3(e) hereof, the principal and income of the Trust
shall be subject to claims of general creditors of Company under
federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive
Officer of Company shall have the duty to inform Trustee in
writing of Company's Insolvency. If a person claiming to be a
creditor of Company alleges in writing to Trustee that Company
has become Insolvent, Trustee shall independently determine,
within thirty days after receipt of such notice, whether
Company is Insolvent and, pending such determination, Trustee
shall discontinue payment of Supplemental Benefits to all
Beneficiaries.
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a person
claiming to be a creditor alleging that Company is Insolvent,
Trustee shall have no duty to inquire whether Company is
Insolvent. Trustee may in all events rely on such evidence
concerning Company's solvency as may be furnished to Trustee
and that provides Trustee with a reasonable basis for making a
determination concerning Company's solvency. In no event shall
Trustee be liable to any person for its determination as to
whether Company is Insolvent.
(3) If at any time Trustee has determined that
Company is Insolvent, Trustee shall discontinue payments to
Beneficiaries and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of
Beneficiaries to pursue their rights as general creditors of
Company with respect to benefits due under the Nonqualified
Plan or otherwise.
(4) Trustee shall resume the payment of Supplemental
Benefits to Beneficiaries in accordance with Section 4 of this
Trust Agreement only after Trustee has determined that Company
is not Insolvent (or is no longer Insolvent).
(b) Provided that there are sufficient assets, if Trustee
discontinues payments of Supplemental Benefits from the Trust pursuant
to Section 5(a) above and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate
amount of all payments that would have been made to a Beneficiary in
accordance with the Nonqualified Plan during the period of such
discontinuance, less the aggregate amount of payments made to such
Beneficiary directly by Company in lieu of the payments provided for
hereunder during any such period of discontinuance.
Section 6. Payments to Company.
Company shall have no right or power to direct Trustee to return to
Company or to divert to others any of the Trust assets before all payments of
Supplemental Benefits have been made to all Beneficiaries pursuant to the
Nonqualified Plan, except upon termination of the Trust as provided in Section
13 below.
Section 7. Investment of Trust Estate.
Prior to a Control Change Date, Trustee shall invest the trust estate
as Company prescribes, other than in securities (including stock or rights to
acquire stock) or obligations issued by Company, not including, however, a de
minimus amount held in common investment vehicles in which Trustee invests.
After a Control Change Date, Trustee shall invest the trust estate as Trustee
shall determine, according to the standards set forth in Section 10 below. All
rights associated with assets of the Trust shall be exercisable by Trustee or
the person designated by Trustee, and shall in no event be exercisable by
Beneficiaries.
Section 8. Disposition of Income.
Except as otherwise specifically provided herein, during the term of
this Trust, all income received by the Trust, net of expenses and taxes, shall
be accumulated and reinvested.
Section 9. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be done. All
such accounts, books and records shall be open to inspection and audit at all
reasonable times by Company, and each Beneficiary of a Trust Account shall have
the right to inspect and audit all such accounts, books and records as to such
Trust Account. After a Control Change Date, within sixty days following the
close of each calendar year and within sixty days after the removal or
resignation of Trustee, Trustee shall deliver to Company and to each of the
Beneficiaries a written account of its administration of the Trust during such
year or during the period from the close of the last preceding year to the date
of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be. If no objection is made to the accounting by Company or a
Beneficiary within ninety days after mailing or delivery thereof, Company and
the Beneficiaries shall be conclusively presumed to have approved all matters
reflected in the accounting.
Section 10. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like aims in
the management of the affairs of others; provided, however, that
Trustee shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by Company which is
contemplated by, and in conformity with, the terms of the Plan or this
Trust and is given in writing by Company. In the event of a dispute
between Company and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) Trustee shall not be required to undertake or to defend
any litigation arising in connection with this Trust Agreement, unless
it be first indemnified by Company against its prospective costs,
expenses and liability, and Company hereby agrees to indemnify Trustee
for such costs, expenses, and liability. If Company breaches its
obligations under this Section 10(b) and refuses to indemnify Trustee
for such costs, expenses and liability, then any Beneficiary or
Beneficiaries may so indemnify Trustee, and Trustee shall then be
required to undertake or defend such litigation.
(c) Trustee may consult with legal counsel (who may also be
counsel for Trustee generally) with respect to any of its duties or
obligations hereunder, and shall be fully protected in acting or
refraining from acting in accordance with the advice of such counsel.
(d) Trustee may hire agents, brokers, accountants, actuaries,
custodians, and financial consultants or other professionals to assist
it in performing any of its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law unless expressly provided
otherwise herein, provided, however, that if an insurance policy is
held as an asset of the Trust, Trustee shall have no power, except in
accordance with Section 12(c) hereof, to name a beneficiary of the
policy other than the Trust, to assign the policy (as distinct from
conversion of the policy to a different form) other than to a successor
Trustee, or to loan to any person the proceeds of any borrowing against
such policy.
(f) None of the Trustees, whether named herein or appointed by
any court or person, shall be required to file any inventory with, make
any accounting or report to or qualify before any court or public
official or be required to give any bond, regardless of any requirement
of law, statute or rule of court to the contrary, it being the
intention hereby to relieve each and every one of the Trustees from any
and all such and similar requirements.
(g) If there are two or more trusts or shares of any trust
created hereunder, then the principal of the several trusts or shares
may be commingled and held as one fund with the separate trusts or
shares having undivided interests therein appropriately identified on
the books of Trustee.
(h) Any successor Trustee at any time serving hereunder shall
have and possess all of the rights, powers, privileges, immunities and
discretions herein conferred upon the original Trustee in its capacity
as such. No successor Trustee shall be liable or responsible for any
losses or expenses resulting from or occasioned by anything done or
neglected to be done in the administration of the Trust prior to
becoming a Trustee.
(i) Notwithstanding any powers granted to Trustee pursuant to
this Trust Agreement or to applicable law, Trustee shall not have any
power that could give this Trust the objective of carrying on a
business and deriving the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
Section 11. Compensation and Expenses of Trustee.
Trustee shall be entitled to receive reasonable compensation for its
services in such amounts as Trustee shall determine, but such compensation shall
not exceed such amounts as are usually charged at the time by banks and trust
companies with trust powers for similar services in Kansas City, Missouri, in
accordance with their regularly published fee schedule in effect from time to
time. Trustee shall also be entitled to receive its reasonable expenses incurred
with respect to the administration of the Trust, including fees incurred by
Trustee pursuant to Section 10(c) and 11(d) of this Trust Agreement, which
expenses shall not reduce the compensation payable to Trustee. Such compensation
and expenses shall be payable out of the trust estate, pro rata out of each
Trust Account.
Section 12. Replacement of Trustee.
(a) Trustee may be removed at any time by Company prior
to a Control Change Date, or by a majority of current Beneficiaries
after a Control Change Date, or may resign, in which case a new
corporate trustee, which shall be independent and not subject to
control of either Company or any Beneficiary and which shall have
combined capital and surplus of at least ten million dollars, shall be
appointed by Company, if such removal or resignation occurs prior to a
Control Change Date, or by a majority of the currentBeneficiaries, if
such removal or resignation occurs after a Control Change Date.
(b) Upon resignation or removal of Trustee and
appointment of a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be completed
within thirty days after receipt of notice of resignation, removal or
transfer, unless Company extends the time limit.
(c) The successor Trustee need not examine the records
and acts of any prior Trustee and may retain oR dispose of existing
Trust assets, subject to Sections 9 and 10 hereof. The successor
Trustee shall not be responsible for and Company shall indemnify and
defend the successor Trustee from any claim or liability resulting from
any action or inaction of any prior Trustee or from any other past
event, or any condition existing at the time it becomes successor
Trustee.
Section 13. Amendment or Termination.
(a) Company reserves the right at any time prior to a
Control Change Date, by its act alone and without the consent or
approval of any person, to alter, amend, modify or revoke, in whole or
in part, this Trust Agreement and the trust estates hereby created;
PROVIDED, however, that no such alteration, amendmenT or modification
shall change the duties, responsibilities or obligations of Trustee
hereunder or reduce the compensation to which Trustee is entitled
unless Trustee shall consent thereto in writing. Such right to alter,
amend, modify or revoke this Trust Agreement shall be exercised by the
execution of a written instrument signed by Company and delivered to
Trustee. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Nonqualified Plan or make the Trust
revocable after it has become irrevocable iNaccordance with Section
3(c) hereof.
(b) The Trust shall terminate upon the first to occur of
the following:
(1) The revocation of this Trust Agreement pursuant
to Section 13(a);
(2) If there has been a Change in Control of Company,
the date on which no Beneficiary is entitled to any
Supplemental Benefits pursuant to the Nonqualified Plan;
(3) The distribution of all assets of the Trust;
(4) The expiration of five years from the date of
execution of this Trust Agreement if there has been no Change
in Control of Company nor a Solicitation of Change in Control
of Company;
(5) The expiration of twenty years and eleven months
after the death of the last to die of all Beneficiaries living
on the date of the execution of this Trust;
(6) The written agreement of Company and those
Employees who are the Beneficiaries of Trust Accounts that
equal, taken together, 70% of the total trust estate by value
as of that time, to terminate the Trust.
(c) Upon termination of the Trust as provided in Section
13(b,any assets remaining in the Trust shall be returned to Company.
Section 14. Severability and Alienation.
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition without
invalidating the remaining provisions hereof.
(b) Benefits of any Beneficiary under this Agreement may not
be transferred, anticipated, assigned (either at law or in equity),
alienated or subjected to attachment, garnishment, levy, execution or
other legal or equitable process and no benefit actually paid to any
Beneficiary by Trustee shall be subject to any claim for repayment by
Company or Trustee.
(c) This instrument shall extend to and be binding upon the
successors and assigns of Company and upon the successors of Trustee.
Section 15. Governing Law.
This Trust Agreement shall be governed by and construed and the
validity of the trust hereby created shall be determined in accordance with the
laws of Missouri without regard to conflicts of laws principles.
Section 16. Choice of Forum.
Company and Trustee hereby agree that all actions or proceedings
arising directly or indirectly from this Trust Agreement shall be commenced and
litigated in the Circuit Court of Jackson County, Missouri, and shall not be
removed or transferred to any other court.
IN WITNESS WHEREOF, Company and Trustee have executed this Agreement as
of the date first above written.
DST Systems, Inc., Settlor
By: /s/ Kenneth V. Hager
Kenneth V. Hager
Vice President, Chief Financial Officer and
Treasurer
ACKNOWLEDGMENT OF AMENDMENT
Marshall & Ilsley Trust Company, N.A., does hereby acknowledge that it
is the duly qualified and acting Trustee under the aforesaid Amended Trust
Agreement, that it has received the foregoing executed by DST Systems, Inc., as
Settlor, and that it does hereby acknowledge amendment of said Amended Trust
Agreement.
IN WITNESS WHEREOF, the Trustee, Marshall & Ilsley Trust Company, N.A.,
has caused these presents to be executed as of the day and year first above
written.
MARSHALL & ILSLEY TRUST COMPANY, N.A.
By: /s/ Stephanie Napier
Name: Stephanie Napier
Title: Vice President and Senior Trust Counsel
By: /s/ William D. Magee
Name: William D. Magee
Title: Vice President
APPENDIX A
"Nonqualified Plan" for purposes of this Trust Agreement shall mean:
* DST Systems, Inc. Executive Plan, which was terminated on December
31, 1995, but pursuant to which account balances continue to be held;
* DST Systems, Inc. Supplemental Executive Retirement Plan, originally
effective January 1, 1999 (both pre-2005 amounts and post-2004 amounts,
regardless of whether subject to Code Section 409A); and
* Amounts deferred (whether voluntarily or mandatorily) under the
annual incentive program and procedures established under Section 13 of the 2005
Equity Incentive Plan.