EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Agreement, dated as of November 23, 2005, is entered into by and
between Xxxxxxx X. Xxxxx (the "Executive") and Sunshine Acquisition Corporation,
a Delaware corporation (together with any successor thereto, the "Company").
WITNESSETH THAT
WHEREAS, the Company, Sunshine Merger Corporation and SS&C
Technologies, Inc. ("SS&C") entered into an Agreement and Plan of Merger dated
July 28, 2005 (the "Merger Agreement"); and
WHEREAS, subject to the consummation of the Merger as described in the
Merger Agreement, the Company and the Executive wish to set forth the terms and
conditions of Executive's employment with the Company and SS&C in a binding
written agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement, it is hereby agreed as follows:
1. Term of Employment. The term of the Executive's employment under
this Agreement (the "Term") shall begin on the Effective Date of the Merger, as
defined in the Merger Agreement (the "Effective Date") and end on the third
anniversary thereof; provided, that the Term shall be extended by successive
periods of one (1) year, unless the Company shall have notified the Executive or
the Executive shall have notified the Company that no such extension shall take
place, in each case at least ninety (90) days prior to the expiration of the
then-current Term (a "Notice of Nonrenewal"); and provided, further, that the
Term shall in any event end upon a termination of employment in accordance with
the terms of Section 5 hereof.
2. Position, Duties and Location.
(a) Position. Beginning on the Effective Date, the Executive shall
serve as Chairman of the Board of Directors of the Company (the Board") and
Chief Executive Officer of the Company and SS&C, with the duties and
responsibilities customarily assigned to those positions consistent with past
practice and such other duties and responsibilities as the Board of Directors of
the Company (the "Board") shall from time to time reasonably assign to the
Executive consistent with Executive's position. The Executive shall at all times
report directly to the Board. In addition, Executive shall serve as the Chairman
of the Board of Directors of SS&C and any direct or indirect parent or holding
company, the assets of which are the stock of SS&C.
(b) Duties. During the Term, the Executive shall devote Executive's
full business attention and time to the business of the Company and SS&C and
shall use Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. During the Term, it shall not be considered a
violation of the foregoing for the Executive to serve on
corporate, civic or charitable boards or committees, and manage personal
investments, so long as such activities do not materially interfere with the
performance of the Executive's responsibilities as an employee of the Company
and SS&C and do not violate the restrictions contained in Section 7.
(c) Location. The Executive's services shall be performed primarily at
SS&C's offices in Windsor, Connecticut.
3. Compensation.
(a) Base Salary. During the Term, the Executive shall receive a base
salary (the "Base Salary") at an annual rate of not less than five-hundred
thousand dollars ($500,000), payable at such times as SS&C customarily pays the
base salaries of other senior executives of SS&C (hereinafter, "Other Senior
Executives"). The Base Salary shall be reviewed annually for increase in
accordance with SS&C's normal practices for Other Senior Executives. The Base
Salary shall not be reduced, including, after any increase, and the term "Base
Salary" shall thereafter refer to the Base Salary as so increased.
(b) Annual Bonus. During the Term, the Executive shall be eligible to
earn an annual bonus (the "Annual Bonus") based on individual and Company
performance goals mutually determined by Executive and the Board. The Board
shall set Executive's target Annual Bonus each year (the "Target Annual Bonus").
Subject to Executive remaining employed by the Company through December 31st of
the applicable calendar year, Executive will receive a minimum Annual Bonus of
$450,000; provided, that for calendar year 2005, Executive's minimum Annual
Bonus of $450,000 shall be pro-rated for the time period beginning on the
Effective Date and ending on December 31, 2005.
(c) Long Term Incentive Compensation.
(i) During the Term and subject to the terms of this Agreement,
Executive shall be eligible to receive annual awards under any long term
incentive program or similar plan, program or arrangement of the Company, which
may include options to purchase shares of common stock of the Company
("Options") or restricted shares of common stock of the Company ("Restricted
Shares").
(ii) Notwithstanding the generality of the foregoing clause (i),
on or at the first Board meeting following the Effective Date, Executive shall
be granted an option to purchase that number of shares of common stock of the
Company equal to 2% of the fully diluted shares of the Company, as determined
immediately following the Effective Date (the "Initial Option"), at a per share
exercise price equal to the per share price paid by Carlyle Partners IV, L.P. to
purchase shares of common stock of the Company on the Effective Date. Subject to
the terms of Section 5 hereof, the Initial Option shall vest based on the
passage of time and/or the achievement of performance milestones as provided in
the option program that will be approved by the Board on or at the first Board
meeting following the Effective Date.
(iii) All Options granted to Executive shall (A) have a per share
exercise price that is no greater than fair market value of a share of common
stock of the
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Company on the date of grant; (B) have a maximum term of ten years from the date
of grant; and (C) otherwise be subject to the terms of this Agreement.
(iv) Subject to Section 5 of this Agreement, the Company, SS&C
and the Executive agree that Executive's stock options to purchase SS&C common
stock that are assumed by the Company in the Merger (the "Assumed Options")
shall continue to vest in accordance with their terms, as adjusted to reflect
the shares of Company common stock issued in the Merger, notwithstanding any
contrary action taken by the Board of Directors of SS&C prior to the Merger.
4. Other Benefits.
(a) Benefits. During the Term, the Executive shall be entitled to
participate in the benefits, incentive and compensation plans programs and
arrangements of SS&C ("Employee Benefit Plans"), on terms and conditions no less
favorable than those applicable to any Other Senior Executive. Without limiting
the generality of the foregoing, Executive shall be entitled to no less than six
(6) weeks of paid vacation per calendar year.
(b) Perquisites. The Board may from time to time approve the granting
of additional benefits to Executive including, but not limited to, life and/or
disability insurance, car allowance or Company car, or membership in health,
business or social and/or other clubs, associations or organizations. Such
perquisites shall be no less favorable in any material respect than such
perquisites provided to the Executive by SS&C prior to the Merger.
(c) Expenses. During the Term, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses that Executive incurs
during the Term in carrying out Executive's duties under this Agreement.
(d) Key Person Insurance. The Company and SS&C shall have the right to
insure the life of the Executive for the Company's and/or SS&C's sole benefit.
The Company and SS&C shall have the right to determine the amount of insurance
and the type of policy. The Executive shall cooperate with the Company and SS&C
in obtaining such insurance by submitting to reasonably required physical
examinations, by supplying all information reasonably required by any insurance
carrier, and by executing all necessary documents reasonably required by any
insurance carrier. The Executive shall incur no financial obligation by
executing any required document, and shall have no interest in any such policy.
(e) Indemnity. The Company and SS&C agree that if the Executive is
made a party, or is threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that Executive is or was a director,
officer or employee of the Company or SS&C or is or was serving at the request
of the Company or SS&C as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust, limited liability
company or other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is the Executive's alleged
action in an official capacity while serving as a director, officer, member,
employee or agent, the Executive shall be indemnified and held harmless by the
Company and SS&C to the fullest extent legally permitted or authorized by the
Company's and
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SS&C's certificates of incorporation or bylaws or resolutions of the Board or,
if greater, by the laws of the State of Delaware, against all cost, expense,
liability and loss (including, without limitation, attorney's fees, judgments,
fines, ERISA excise taxes or other liabilities or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if Executive has ceased to be a director, member, employee or
agent of the Company, SS&C or other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. To the extent permitted by
applicable law, the Company and SS&C shall advance to the Executive all
reasonable costs and expenses incurred by Executive in connection with a
Proceeding within twenty (20) calendar days after receipt by the Company of a
written request for such advance. Such request shall include an undertaking by
the Executive to repay the amount of such advance if it shall ultimately be
determined that Executive is not entitled to be indemnified against such costs
and expense. Neither the failure of the Company nor SS&C (including their boards
of directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any proceeding concerning payment of
amounts claimed by the Executive that indemnification of the Executive is proper
because Executive has met the applicable standard of conduct, nor a
determination by the Company or SS&C (including its board of directors,
independent legal counsel or stockholders) that the Executive has not met such
applicable standard of conduct, shall create a presumption that the Executive
has not met the applicable standard of conduct. The Company and SS&C agree to
continue and maintain a directors' and officers' liability insurance policy
covering the Executive to the extent the Company and SS&C provide such coverage
for their other executive officers. Such insurance coverage shall be maintained
for at least six (6) years following any Change in Control.
(f) Section 409A. To the extent that the Company reasonably determines
that any compensation or benefits payable under this Agreement are subject to
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), this
Agreement shall incorporate the terms and conditions required by Section 409A of
the Code and Department of Treasury regulations as reasonably determined by the
Company and the Executive. To the extent applicable, this Agreement shall be
interpreted in accordance with Section 409A of the Code and Department of
Treasury regulations and other interpretative guidance issued thereunder,
including without limitation any such regulations or other such guidance that
may be issued after the Effective Date. Notwithstanding any provision of this
Agreement to the contrary, in the event that following the Effective Date the
Company reasonably determines that any compensation or benefits payable under
this Agreement may be subject to Section 409A of the Code and related Department
of Treasury guidance (including such Department of Treasury guidance as may be
issued after the Effective Date), the Company and the Executive shall work
together to adopt such amendments to this Agreement or adopt other policies or
procedures (including amendments, policies and procedures with retroactive
effective), or take any other commercially reasonable actions necessary or
appropriate to (i) exempt the compensation and benefits payable under this
Agreement from Section 409A of the Code and/or preserve the intended tax
treatment of the compensation and benefits provided with respect to this
Agreement, or (ii) comply with the requirements of Section 409A of the Code and
related Department of Treasury guidance.
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5. Payments to Executive at Termination.
(a) Consequences of Termination. If the Executive's employment with
the Company and SS&C is terminated for any reason, the Executive (or, in the
case of Executive's death, the Executive's estate and/or beneficiaries) shall be
entitled to the following: (i) unpaid Base Salary through the date of the
termination; (ii) payment of any Annual Bonus earned with respect to a completed
fiscal year of the Company that is unpaid as of the date of termination; and
(iii) any benefits due to Executive under any Employee Benefit Plan and any
payments due to the Executive under any Company or SS&C policy, program,
arrangement or agreement (including, without limitation, reimbursement for
previously incurred expenses) (collectively, the "Accrued Amounts").
(b) Termination Without Cause; for Good Reason; Nonrenewal by the
Company. The Company may terminate Executive's employment without Cause and
Executive may terminate his employment for Good Reason (notwithstanding anything
in this Agreement to the contrary, "Good Reason" shall not exist unless the
provisions of Section 5(f) are complied with), in each case upon thirty 30 days
written notice, and the Executive's employment may be terminated upon a Notice
of Nonrenewal by the Company. Upon a termination of the Executive's employment
by the Company without Cause, as a result of the Company's Notice of Nonrenewal,
or by the Executive for Good Reason, the Executive shall be entitled to, subject
to the Executive's signing, within thirty (30) days following the date the
Company provides the Executive with a Release, and not revoking a Release, the
following:
(i) severance payments totaling the sum of 200% of the
Executive's Base Salary and 200% of Executive's Target Annual Bonus, payable
promptly upon termination (or, if later, payment shall be made at the earliest
time permitted under the terms of the agreements governing any senior credit
facilities to which the Company or any of its subsidiaries may be a party);
provided that if Executive's termination is for Good Reason due to a reduction
in any such amount, the amount used in calculating the severance payment shall
be that in effect prior to the event giving rise to Good Reason;
(ii) the Executive's outstanding Options, whether or not then
exercisable, shall become exercisable with respect to 50% of the unvested shares
subject to the Options, as determined on the date of termination, and shall,
except with respect to the Assumed Options which will remain exercisable in
accordance with their terms, remain exercisable for the balance of their
ten-year terms as if no termination had occurred (subject to earlier termination
as provided in the applicable plan, for example, in connection with a Change in
Control);
(iii) 50% of the vesting restrictions on Restricted Shares shall
lapse;
(iv) the Assumed Options shall become fully vested on the date of
termination; and
(v) three years of Company paid premiums for Executive's
continuation of coverage under the Company's group medical, dental and vision
benefit plans and, to the extent permitted under the terms of the Company's
group medical, dental and vision benefit plans, continued coverage, at the
Executive's cost, for the remainder of Executive's life.
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Notwithstanding anything to the contrary in this Section 5 or Section 10, no
payments in Section 5 or Section 10 will be paid during the six-month period
following Executive's termination of employment unless the Company determines,
in its good faith judgment, that paying such amounts at the time or times
indicated in such Sections would not cause Executive to incur an additional tax
under Section 409A of the Code (in which case such amounts shall be paid at the
time or times indicated in such Sections). If the payment of any amounts are
delayed as a result of the previous sentence, on the first day following the end
of the six-month period, the Company will pay Executive a lump-sum amount equal
to the cumulative amounts that would have otherwise been previously paid to
Executive under this Agreement. Thereafter, payments will resume in accordance
with Section 5 and Section 10, as applicable.
(c) Termination Due to Death or Disability. The Company shall have the
right to terminate Executive's employment as a result of Executive's Disability
(as defined below) upon thirty 30 days written notice and Executive's employment
shall automatically terminate upon the death of the Executive. In the event that
Executive's employment is terminated during the Term due to Executive's
Disability or death, Executive (or in the event of Executive's death, his
estate) shall be entitled to subject to, in the case of Disability, the
Executive's signing, within thirty (30) days following the date the Company
provides the Executive with a Release, and not revoking a Release, the following
benefit and shall not be entitled to payments or benefits under Section 5(b):
(i) disability or death benefits (as applicable) in accordance with the Company
or SS&C provided insurance programs and arrangements in which Executive was
participating immediately prior to such termination; (ii) 50% of the unvested
shares subject to the Executive's outstanding Options, whether or not then
exercisable, shall become exercisable and shall, except with respect to the
Assumed Options which will remain exercisable in accordance with their terms,
remain exercisable for the balance of their ten-year terms as if no termination
had occurred (subject to earlier termination as provided in the applicable plan,
for example, in connection with a Change in Control); (iii) 50% of the vesting
restrictions on Restricted Shares shall lapse; (iv) the Assumed Options shall
become fully vested on the date of death or termination; and (v) a cash payment
equal to the amount of the Executive's Target Annual Bonus for the year of the
termination, pro-rated to reflect the portion of the fiscal year that occurs
before the date of termination, payable within 30 business days following the
date of termination.
(d) Voluntary Resignation. Executive may terminate his employment at
any time without Good Reason upon ninety 90 days written notice to the Company.
In the event that the Executive resigns without Good Reason, which shall include
a termination upon a Notice of Nonrenewal by Executive (a "Voluntary
Resignation"), Executive shall only be entitled to the Accrued Amounts, and
Options and any other equity-based awards that are vested as of the effective
date of termination shall continue according to the terms of such awards
applicable to such a termination.
(e) Termination for Cause. (i) The Company may terminate Executive's
employment for Cause in compliance with the requirements of this Section 5(e),
and notwithstanding anything in this Agreement to the contrary, "Cause" shall
not exist unless the provisions of this Section 5(e) are complied with. In the
event that the Company terminates the Executive's employment for Cause, then the
Executive shall only be entitled to the Accrued Amounts, and Options and any
other equity-based awards that are vested as of the effective date
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of termination shall continue according to the terms of such awards applicable
to a termination for Cause.
(ii) The Executive shall be given written notice by the Company
of the intention to terminate Executive for Cause, such notice (A) to state in
detail the particular act or acts or failure or failures to act that constitute
the grounds on which the proposed termination for Cause is based and (B) to be
given within the three (3) month period immediately following the date the
members of the Board, other than the Executive, learn of such act or acts or
failure or failures to act. The Executive shall have ten (10) business days
after the date that such written notice has been given to the Executive in which
to cure such conduct, to the extent such cure is possible. If the Executive
fails to cure such conduct, the Executive shall then be entitled to a hearing
before a meeting of the Board. Such hearing shall be held within fifteen (15)
business days after such cure period, provided Executive requests such hearing
within ten (10) business days of the written notice from the Company of the
intention to terminate Executive for Cause. If, within five (5) business days
following such hearing, the Executive is furnished written notice by the Company
confirming that, in its judgment, grounds for Cause on the basis of the original
notice exist, Executive shall thereupon be terminated for Cause. Any purported
termination for Cause that fails to comply with the foregoing requirements shall
be conclusively deemed to be a termination by the Company without Cause. The
Company may suspend Executive during the pendency of the foregoing process;
provided that Executive shall continue to receive all compensation and benefits
during such suspension; provided, further that such suspension may not be
effected if it prevents or hinders Executive's ability to cure Executive's
conduct.
(f) Termination for Good Reason. (i) The Executive may terminate
Executive's employment for Good Reason in compliance with the requirements of
this Section 5(f), and notwithstanding anything in this Agreement to the
contrary, "Good Reason" shall not exist unless the provisions of this Section
5(f) are complied with. In the event that the Executive terminates his
employment for Good Reason, then the Executive shall be entitled to the amounts
set forth in Section 5(b).
(ii) The Company shall be given written notice by the Executive
of his intention to terminate for Good Reason, such notice (A) to state in
detail the particular act or acts or failure or failures to act that constitute
the grounds on which the proposed termination for Good Reason is based and (B)
to be given within the three (3) months period immediately following the date
the Executive learns of such act or acts or failure or failures to act. The
Company shall have ten (10) business days after the date that such written
notice has been given to the Company in which to cure such conduct, to the
extent such cure is possible. If the Company fails to cure such conduct, the
Executive shall, within five (5) business days following such failure to cure,
furnish to the Company written notice confirming that, in his judgment, grounds
for Good Reason on the basis of the original notice exist, and the Executive may
thereupon terminate for Good Reason, subject to the 30 day notice period in
Section 5(b). Any purported termination for Good Reason that fails to comply
with the foregoing requirements shall be conclusively deemed to be a termination
by the Executive without Good Reason. The Company may suspend the Executive
during the pendency of the foregoing process; provided that Executive shall
continue to receive all compensation and benefits during such suspension.
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(g) Definitions. For purposes of this Agreement, the following
definitions shall apply:
(i) "Cause" shall mean: (i) Executive's willful and continuing
failure (except where due to physical or mental incapacity) to substantially
perform his duties; (ii) Executive's conviction of, or plea of guilty or nolo
contendere to, the commission of a felony by Executive; (iii) the commission by
Executive of an act of fraud or embezzlement against the Company or any of its
subsidiaries (other than a good faith expense dispute) as determined in good
faith by a two-thirds majority of the Board at a meeting held for such purpose;
or (iv) Executive's breach of any material provision of this Agreement.
(ii) "Change in Control" shall mean (A) 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") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 50% or more of either (1) the then-outstanding shares
of common stock of the Company or SS&C or (2) the combined voting power of the
then-outstanding voting securities of the Company or SS&C entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes of this Section 5(g)(ii),
the following acquisitions shall not constitute a Change in Control: (x) any
acquisition by the Company, Carlyle Partners IV, L.P. ("Carlyle"), Executive,
any employee of the Company or any of its subsidiaries, any group of employees
of the Company or any of its subsidiaries, or an affiliate of the Company,
Carlyle, Executive, any employee of the Company or any group comprised of any of
the foregoing, or (y) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or an affiliate of the Company; or
(B) individuals who, as of the date immediately following the Effective Date,
constituted the Board and any individuals subsequently elected to the Board
pursuant to or in accordance with Section 7 of the Stockholders Agreement (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the Effective Date whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board and any individual nominated or
designated for election to the Board by Carlyle or any of its affiliates shall
be considered as though such individual were a member of the Incumbent Board.
(iii) "Disability" shall mean physical or metal incapacity as a
result of which Executive is unable to substantially perform his duties to the
Company and SS&C for a period of six consecutive months and as a result of which
Executive is entitled to long term disability benefits under the Company's or
SS&C's long term disability plan applicable to Executive and Other Senior
Executives.
(iv) "Good Reason" shall mean the occurrence without Executive's
express written consent of (i) an adverse change in Executive's employment
title; (ii) a material diminution in Executive's employment duties or
responsibilities or authority, or the assignment to Executive of duties that are
materially inconsistent with his position; (iii) any reduction in Base Salary or
Target Annual Bonus; (iv) a relocation of the Company's principal executive
offices to a location more than thirty five (35) miles from its current location
which has the effect
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of increasing the Executive's commute; (v) any breach by the Company of any
material provision of this Agreement or the Stockholders Agreement entered into
by and among the Company, Xxxxxxx, XX XX Coinvestment, L.P. and the Executive,
as may be amended from time to time (the "Stockholders Agreement") or (vii) upon
a Change in Control where (A) Carlyle exercises its bring-along rights in
accordance with Section 2 of the Stockholders Agreement, and (B) the Executive
votes against the proposed transaction in his capacity as a stockholder of the
Company.
(v) "Release" means a written release, in form and substance
reasonably satisfactory to the Company and the Executive, whereby Executive
waives and releases the Company and its affiliates and related parties from any
and all claims that Executive may have against the Company and its affiliates
relating to Executive's employment or the termination thereof and whereby the
Company agrees to waive and release Executive from any and all claims that the
Company may have against Executive relating to Executive's employment or
termination thereof (except for fraud, misappropriation of the Company's or its
affiliate's assets or any other alleged criminal wrongdoing or malfeasance of a
gross nature).
6. Confidentiality of Trade Secrets and Business Information.Section
6.01
(a) Except in connection with the faithful performance of the
Executive's duties hereunder or pursuant to Section 6(c), the Executive shall,
in perpetuity, maintain in confidence and shall not directly, indirectly or
otherwise, use, disseminate, disclose or publish, or use for his benefit or the
benefit of any person, firm, corporation or other entity any confidential or
proprietary information or trade secrets of or relating to the Company
(including, without limitation, intellectual property in the form of patents,
trademarks and copyrights and applications therefor, ideas, inventions, works,
discoveries, improvements, information, documents, formulae, practices,
processes, methods, developments, source code, modifications, technology,
techniques, data, programs, other know-how or materials, owned, developed or
possessed by the Company, whether in tangible or intangible form, information
with respect to the Company's operations, processes, products, inventions,
business practices, finances, principals, vendors, suppliers, customers,
potential customers, marketing methods, costs, prices, contractual
relationships, regulatory status, prospects and compensation paid to employees
or other terms of employment), or deliver to any person, firm, corporation or
other entity any document, record, notebook, computer program or similar
repository of or containing any such confidential or proprietary information or
trade secrets. The parties hereby stipulate and agree that as between them the
foregoing matters are important, material and confidential proprietary
information and trade secrets and affect the successful conduct of the
businesses of the Company (and any successor or assignee of the Company).
(b) Upon termination of the Executive's employment with the Company
for any reason, the Executive will promptly deliver to the Company all
correspondence, drawings, manuals, letters, notes, notebooks, reports, programs,
plans, proposals, financial documents, or any other documents concerning the
Company's customers, business plans, marketing strategies, products or
processes.
(c) The Executive may respond to a lawful and valid subpoena or other
legal process but shall give the Company prompt notice thereof, shall promptly
make available to the
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Company and its counsel the documents and other information sought and shall
assist, if appropriate, such counsel at Company's expense in resisting or
otherwise responding to such process.
(d) As used in this Section 6, the term "Company" shall include the
Company and its direct or indirect parents, if any, and subsidiaries.
(e) Nothing in this Agreement shall prohibit the Executive from (i)
disclosing information and documents when required by law, subpoena or court
order (subject to the requirements of Section 6(c) above), (ii) disclosing
information and documents to his attorney or tax adviser for the purpose of
securing legal or tax advice, (iii) disclosing the post-employment restrictions
in this Agreement in confidence to any potential new employer, or (iv)
retaining, at any time, his personal correspondence, his personal rolodex and
documents related to his own personal benefits, entitlements and obligations.
(f) All rights to discoveries, inventions, improvements and
innovations (including all data and records pertaining thereto) related to the
business of the Company, whether or not patentable, copyrightable, registrable
as a trademark, or reduced to writing, that the Executive may discover, invent
or originate during the Term, either alone or with others and whether or not
during working hours or by the use of the facilities of the Company
("Inventions"), shall be the exclusive property of the Company. The Executive
shall promptly disclose all Inventions to the Company, shall execute at the
request of the Company any assignments or other documents the Company may deem
reasonably necessary to protect or perfect its rights therein, and shall assist
the Company, upon reasonable request and at the Company's expense, in obtaining,
defending and enforcing the Company's rights therein. The Executive hereby
appoints the Company as his attorney-in-fact to execute on his behalf any
assignments or other documents reasonably deemed necessary by the Company to
protect or perfect its rights to any Inventions.
7. Noncompetition.
(a) In consideration for the compensation payable to the Executive
under this Agreement, the Executive agrees that Executive will not, during the
Non-Compete Period, directly or indirectly engage in, have any equity interest
in, manage or operate, provide services for, consult with or be employed by any
person, firm, corporation, partnership or business (whether as director,
officer, employee, agent, representative, partner, security holder, consultant
or otherwise) that engages in any business which competes with any Competitive
Business (as defined below) anywhere in the World; provided, however, that the
Executive shall be permitted to acquire a passive stock interest in such a
business provided the stock acquired is publicly traded and is not more than two
percent (2%) of the outstanding interest in such business. For purposes of this
Section 7, the "Non-Compete Period" shall mean the period beginning on the
Effective Date and ending (i) if Executive is terminated by the Company pursuant
to Sections 5(c) or 5(e) or by Executive pursuant to Section 5(d), on the later
of (A) four (4) years following the Effective Date, and (B) two (2) years
following the Executive's termination of employment, and (ii) if Executive is
terminated pursuant to Section 5(b), two (2) years following the Executive's
termination of employment.
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(b) During the Non-Compete Period, the Executive shall not recruit or
otherwise solicit or induce any employee, consultant, independent contractor,
customer, subscriber or supplier of the Company (i) to terminate its employment
or arrangement with the Company, or (ii) to otherwise change its relationship
with the Company.
(c) In the event the terms of this Section 7 shall be determined by
any court of competent jurisdiction to be unenforceable by reason of its
extending for too great a period of time or over too great a geographical area
or by reason of its being too extensive in any other respect, it will be
interpreted to extend only over the maximum period of time for which it may be
enforceable, over the maximum geographical area as to which it may be
enforceable, or to the maximum extent in all other respects as to which it may
be enforceable, all as determined by such court in such action.
(d) As used in this Section 7, (i) the term "Company" shall include
the Company and its parent and subsidiaries, and (ii) the term "Competitive
Business" shall mean any business that competes with the business conducted by
the Company as of the date of the Executive's termination of employment with the
Company.
(e) During his employment and for the 12-month period following
termination of his employment with the Company, (a) the Executive agrees not to
disparage in any material respect the Company, any of its products or practices,
or any of its directors, officers, agents, representatives, stockholders or
affiliates, either orally or in writing, and (b) the Company agrees not to
disparage in any material respect the Executive.
8. Enforcement. The Executive acknowledges and agrees that: (i) the
purpose of the covenants set forth in Sections 6 and 7 above are to protect the
goodwill, trade secrets and other confidential information of the Company; (ii)
because of the nature of the business in which the Company is engaged and
because of the nature of the Confidential Information to which the Executive has
access, it would be impractical and excessively difficult to determine the
actual damages of the Company in the event the Executive breached any such
covenants; and (iii) remedies at law (such as monetary damages) for any breach
of the Executive's obligations under Sections 6 and 7 would be inadequate. The
Executive therefore agrees and consents that if Executive commits any breach of
a covenant under Sections 6 or 7, the Company shall have the right (in addition
to, and not in lieu of, any other right or remedy that may be available to it)
to temporary and permanent injunctive relief from a court of competent
jurisdiction.
9. Resolution of Disputes; Legal Fees. Any disputes arising under or
in connection with this Agreement, other than Sections 6 and 7 above, shall
first be addressed by third-party mediation and, if such mediation fails to
resolve such dispute within sixty days, by binding arbitration, to be held in
Hartford county, Connecticut. The arbitration shall be conducted according to
the rules and procedures of the American Arbitration Association governing
employment disputes. Judgment upon the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof. The Company shall pay the
costs of the arbitrator or the mediator.
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10. Certain Additional Payments. In the event that the severance and
other benefits provided for in this Agreement or otherwise payable to the
Executive in connection with a Change in Control that occurs following the
Effective Date and not in connection with the transactions contemplated by the
Merger Agreement constitute "parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code") and will be
subject to the excise tax imposed by Section 4999 of the Code, then the
Executive shall receive (a) a payment from the Company sufficient to pay such
excise tax, and (b) an additional payment from the Company sufficient to pay the
excise tax and federal and state income taxes arising from the payments made by
the Company to the Executive pursuant to this sentence. Unless the Company and
the Executive otherwise agree in writing, the determination of the Executive's
excise tax liability and the amount required to be paid under this Section shall
be made in writing by an independent account firm selected by the Company and
the Executive (the "Accountants"). In the event that the excise tax incurred by
Executive is determined by the Internal Revenue Service to be greater or lesser
than the amount so determined by the Accountants, the Company and Executive
agree to promptly make such additional payment, including interest and any tax
penalties, to the other party as the Accountants reasonably determine is
appropriate to ensure that the net economic effect to the Executive under this
Section, on an after-tax basis, is as if the Code Section 4999 excise tax did
not apply to Executive. For purposes of making the calculations required by this
Section, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on interpretations of the Code for
which there is a "substantial authority" tax reporting position. The Company and
the Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section.
11. The Executive's Representations. The Executive hereby represents
and warrants that the Executive has the right to enter into this Agreement with
the Company and to grant the rights contained in this Agreement, and the
provisions of this Agreement do not violate any other contracts or agreements
that the Executive has entered into with any other individual or entity. The
Executive acknowledges that before signing this Agreement, Executive was given
the opportunity to read it, evaluate it and discuss it with Executive's personal
advisors and attorney and with representatives of the Company. The Executive
further acknowledges that the Company has not provided the Executive with any
legal advice regarding this Agreement.
12. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when delivered
(a) personally, (b) by facsimile with evidence of completed transmission, or (c)
delivered by overnight courier to the Party concerned at the address indicated
below or to such changed address as such Party may subsequently give such notice
of:
If to the Company:
Sunshine Acquisition Corporation
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c/o The Carlyle Group
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx XX
Fax No.: (000) 000-0000
and a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx
If to the Executive:
Xxxxxxx X. Xxxxx
00 Xxxx Xxxxx Xx.
Xxxx, XX 00000
Fax: (000) 000-0000
13. Assignment and Successors. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns. None
of the Executive's rights or obligations may be assigned or transferred by the
Executive, other than the Executive's rights to payments hereunder, which may be
transferred only by will or operation of law.
14. Governing Law; Amendment. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Connecticut, without
reference to principles of conflict of laws. This Agreement may not be amended
or modified except by a written agreement executed by the Executive and the
Company or their respective successors and legal representatives.
15. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
16. Tax Withholding. Notwithstanding any other provision of this
Agreement, the Company or SS&C may withhold from amounts payable under this
Agreement all federal, state, local and foreign taxes that are required to be
withheld by applicable laws or regulations.
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17. Costs Associated with Agreement. The Company shall reimburse the
Executive for the costs incurred by the Executive for financial counseling and
attorneys' fees associated with negotiation and preparation of this Agreement,
the Stockholders Agreement and other related documents.
18. No Waiver. The Executive's or the Company's failure to insist upon
strict compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
19. No Mitigation/Offset. The Executive shall not be obligated to
mitigate the amount of any payments due under this Agreement and no payments or
benefits under this Agreement shall be subject to reduction, offset or
forfeiture for any reason.
20. Headings. The section headings contained in this Agreement are for
convenience only and in no manner shall be construed as part of this Agreement.
21. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and shall supersede all
prior agreements (including, without limitation, the employment agreement
between SS&C and the Executive, dated March 28, 1996), whether written or oral,
with respect thereto.
22. Duration of Terms. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment, the
Term or this Agreement to the extent necessary to give effect to such rights and
obligations.
23. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Executive has hereunto set Executive's hand
and, pursuant to the authorization of the Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
SUNSHINE ACQUISITION CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx, XX
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Its:
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XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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