Affiliated Computer Services, Inc. 2828 North Haskell Avenue Dallas, Texas 75204
EXHIBIT 10.2
Affiliated Computer Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
November 26, 2006
Xxxxxx X. Xxxxxxx
c/o Affiliated Computer Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
c/o Affiliated Computer Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Dear Xxxxxx:
This will confirm the agreement (the “Agreement”) that has been reached with you in connection
with your separation from employment from Affiliated Computer Services, Inc. (the “Company”) and
its subsidiaries and affiliates.
1. Effective Date: Effective as the date set forth above (the “Effective Date”), and
subject to paragraph 2 below, you have resigned from all positions with the Company and its
subsidiaries and affiliates, including as Executive Vice President and Chief Financial Officer,
other than an employee of the Company, as provided in paragraph 2 below. A copy of your letter of
resignation dated November 26, 2006 is attached hereto as Exhibit A. You agree to execute any
additional documents necessary to effect such resignations.
2. Ongoing Services: From the Effective Date until June 30, 2007 (the “Termination
Date”) (such period being the “Transition Period”), you shall continue as an employee of the
Company. During the Transition Period, you shall report to the Chairman or Chief Executive Officer
of the Company as determined by the Chairman, and you shall provide to the Company such
transitional services as may reasonably be designated from time to time. Such services shall be
provided either from your home or the Company’s principal offices on a full time basis or such
other basis as is mutually agreed between you and the Company.
3. Pay and Benefits: You will receive base salary at a rate of $34,300 per month
during the Transition Period, provided that you sign and deliver the ADEA Release in the form
attached hereto as Exhibit B (the “ADEA Release”) and such ADEA Release becomes effective in
accordance with its terms. During the Transition Period, (a) you shall continue to participate in
all employee benefit plans and programs made generally available to employees of the Company,
except that you shall not be entitled to participate in the Company’s bonus and other non-
tax-qualified incentive compensation plans or programs, (b) you shall continue to participate in
the Company’s executive medical program (the “Executive Medical Program”) and (c) you shall
continue to be eligible for business expense reimbursement in accordance with standard Company
policy. In the event that you do not sign and deliver the ADEA Release or you revoke your consent
to the ADEA Release, the immediately preceding sentence shall remain in full force and effect
except that your compensation during the Transition Period will be reduced from a rate of $34,300
per month to a rate of $10,000 per month. Your eligibility to
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participate in the Company’s benefit plans and programs will terminate as of the Termination
Date except that, in consideration for your agreement to the covenants set forth in paragraphs 5
and 6, you shall be entitled to continue to participate in the Executive Medical Program and the
Company’s executive long term disability program (the “LTD Program”) as in effect from time to time
for its senior executives through December 31, 2009; provided, however, that if the Executive
Medical Program and/or the LTD Program is terminated or amended to the detriment of the
participants in the plan (including you) or your continued participation in such programs is not
permitted under the terms thereof, the Company shall provide, at the Company’s expense, health and
disability insurance benefits equal to those provided under the Executive Medical Program and the
LTD Program, as the case may, through December 31, 2009.
4. Stock Options: Notwithstanding anything to the contrary set forth in the Company’s
1997 Stock Incentive Plan or in any other plan and/or award agreements pursuant to which you were
granted options or other derivative securities to acquire common stock of the Company (“Options”):
(a) each Option that is unvested as of the Effective Date (“Unvested Options”) shall terminate
immediately upon such date and you shall have no further rights with respect to such Unvested
Options, except that where indicated on Exhibit C hereto, the Options so indicated shall vest on
the respective dates set forth on Exhibit C provided that you have not materially breached the
provisions of Sections 2, 6, 7, 9 and 10 as of such dates.
(b) each Option that is vested as of the Effective Date or that becomes vested in accordance
with Section 4(a) above (“Vested Options”), shall remain outstanding in accordance with its terms
except that (i) the exercise price of each such Vested Option shall be increased to the
amount determined for financial reporting purposes uniformly applied for all Company options in
connection with the review being performed by the Company in conjunction with the audit of the
Company’s financial statements for the fiscal year ended June 30, 2006, (ii) each such Vested
Option shall terminate either on the date that is 90 days following the Termination Date or on the
first anniversary of the Termination Date, as indicated on Exhibit C hereto, and following such
date you shall have no further rights with respect to such Vested Options (provided, however, that
in the event there exists a blackout period pursuant to which you are not able to exercise your
Options in the last month of such period (whether by reason of the new exercise price not having
been determined in accordance with clause (i) above, or otherwise), the exercise period shall
automatically be extended for 30 days following the end of such blackout period), (iii) no more
than eighty percent (80%) of the Vested Options may be exercised prior to May 31, 2007, (iv) the
Vested Options shall not be subject to forfeiture, and you shall in no manner be divested of the
Vested Options, following the Effective Date for any reason (including but not limited to any
subsequent termination by the Company or any determination of the Company with respect to your
termination for “cause” under common law, or under the terms of the 1997 Stock Incentive Plan or
any other plan, program, arrangement or agreement) and (v) the Vested Options may not be exercised
until the new exercise price has been determined in accordance with clause (i) above.
You represent and agree that Exhibit C hereto sets forth a complete and accurate list of all
of your Options (including Unvested Options and Vested Options).
Xxxxxx X. Xxxxxxx
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5. General Release and Waiver:
(a) In consideration of the Company’s obligations hereunder and acceptance of your
resignation, you, your heirs, successors, and assigns, hereby knowingly and voluntarily release and
forever discharge the Company and its subsidiaries and affiliates, together with all of their
respective current and former officers, directors, consultants, agents, attorneys, representatives
and employees, and each of their predecessors, successors and assigns (collectively, the
“Releasees”), from any and all debts, demands, actions, causes of actions, accounts, covenants,
contracts, agreements, claims, damages, omissions, promises, and any and all claims and liabilities
whatsoever, of every name and nature, known or unknown, suspected or unsuspected, both in law and
equity (“Claims”), which you ever had, now have, or may hereafter claim to have against the
Releasees by reason of any matter, cause or thing whatsoever arising from the beginning of time to
the time you sign this Agreement (the “General Release”). This General Release of Claims shall
apply to any Claim of any type, including, without limitation, any and all Claims of any type that
you may have arising under the common law, under Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Americans With Disabilities Act, the Family and Medical Leave Act,
the Employee Retirement Income Security Act (“ERISA”), the Xxxxxxxx-Xxxxx Act of 2002, the Texas
Commission on Human Rights Act, or the Texas Pay Day Law, each as amended, and any other Federal,
state or local statutes, regulations, ordinances or common law (but shall not apply to any Claims
you may have arising under the Age Discrimination in Employment Act, as amended), or under any
policy, agreement, contract, understanding or promise, written or oral, formal or informal, between
any of the Releasees and you, and shall further apply, without limitation, to any and all Claims in
connection with, related to or arising out of your employment, or the termination of your
employment, with the Company; provided, however, that this General Release shall
not apply to or impair (i) Claims for vested benefits pursuant to any Company employee benefit plan
in which you were a participant before the Termination Date; (ii) any Claims for unemployment
insurance benefits or workers’ compensation benefits applicable to the period through the
Termination Date; (iii) any Claims that may arise under this Agreement (including without
limitation, Claims under any D&O or similar insurance, or under the Company’s Bylaws, Certificate
of Incorporation and/or other governing documents, or under the Executive Medical Plan or LTD Plan)
or (iv) any Claims for business expense reimbursement.
(b) For the purpose of implementing a full and complete release, you understand and agree that
this Agreement is intended to include all claims, if any, which you may have and which you do not
now know or suspect to exist in your favor against the Company or any of the Releasees and that
this Agreement extinguishes those claims.
(c) You represent and warrant that you have not filed any complaints or charges with any court
or administrative agency against the Company or any of the Releasees, which have not been
dismissed, closed, withdrawn or otherwise terminated on or before the date of this Agreement. You
further represent and agree that you have not assigned nor transferred or attempted to assign or
transfer, nor will you attempt to assign or transfer, to any person or entity not a party to this
Agreement any of the Claims you are releasing in this Agreement. Furthermore, by signing this
General Release, you represent and agree that you will not be
Xxxxxx X. Xxxxxxx
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entitled to any personal recovery in any action or proceeding that may be commenced on your
behalf arising out of the matters released hereby.
6. Restrictive Covenants: You agree that: (i) in the course of your employment with
the Company you have had, and until the Termination Date may continue to have, access to
confidential and proprietary information (“Confidential Information”) relating to the Company, its
subsidiaries and affiliates, and their respective businesses, clients, finances, operations,
strategic or other plans, employees, trade practices, trade secrets, know how or other matters that
are not publicly known outside the Company, which are integral to the operations and success of the
Company, and that such Confidential Information has been disclosed to you in confidence and only
for the use of the Company; (ii) the direct and indirect disclosure of any such Confidential
Information would place the Company at a competitive disadvantage and would do damage, monetary or
otherwise, to the Company’s business; (iii) the Confidential Information constitutes a trade secret
of the Company; and (iv) the engaging by you in any of the activities prohibited by this paragraph
6 may constitute improper misappropriation and/or use of such information and trade secrets.
Accordingly, you agree as follows:
(a) Confidential Information. Following the Effective Date, during the
Transition Period and at all times thereafter (a) you will keep confidential and will not directly
or indirectly, communicate, divulge, disclose, make known or furnish to any other person, business,
firm, partnership, limited partnership, limited liability partnership, limited liability company,
corporation or other entity any Confidential Information, other than in the proper performance of
the transitional/consulting services during the Transition Period and under the direction of the
Company and unless and until such Confidential Information shall become general public knowledge
through no fault of your own, and (b) you will not make use of such Confidential Information on
your own behalf, or on behalf of any third party. You further understand and agree that you shall
not copy, in whole or in part, any such Confidential Information, and that you will return to the
Company any and all copies, duplicates, reproductions or excerpts of such Confidential Information,
and any such information stored electronically on tapes, computer disks or in any other manner
within your possession, custody or control. The provisions of this paragraph 6 are in addition to
any other written confidentiality or non-disclosure agreements that you may have with the Company
or any of the Releasees, and are not meant to and do not excuse any additional obligations that you
may have under such agreements. Notwithstanding the provisions of this paragraph 6, or of
paragraph 7, you shall not be restricted from sharing with your counsel, or retaining, copying or
excerpting, any information or documentation, whether or not constituting Confidential Information
or Property, for the purpose of assisting you in your defense of any inquiry or proceeding
concerning the Company’s historical stock option practices or related matters.
(b) Non-Competition. For the period commencing on the Effective Date and continuing
until December 31, 2009, you shall not directly or indirectly, whether as an officer, director,
employee, consultant, owner, investor, partner, associate, employee, stockholder or otherwise, be
engaged in or have any financial interest in or affiliation with, or render any services to or for
any person, business, firm, partnership, limited partnership, limited liability
Xxxxxx X. Xxxxxxx
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partnership, limited liability company, corporation or other entity which is either directly,
indirectly or through an affiliated or related entity, engaged in the business in any Competing
Area (a “Competitive Business”) of providing business process and information technology
outsourcing solutions to commercial and government clients or any similar business. For purposes
of this Agreement, “Competing Area” shall mean any city, locality or region of the United States,
or any other place in the world, where the Company or any of its subsidiaries or affiliates had
operations during the six (6) month period prior to the Effective Date, or in which, during the six
(6) month period prior to the Effective Date, the Company or any of its subsidiaries or affiliates
had made substantial plans with the intention of establishing operations in such city, locality or
region. Notwithstanding anything to the contrary contained herein, (i) the “beneficial ownership”
by you, either individually or as a member of a “group,” as such terms are used in Rule 13d of the
General Rules and Regulations under the Securities Exchange Act of 1934, as amended, of not more
than three percent (3%) of the voting stock of any publicly held corporation shall not alone
constitute a violation of this Agreement, and (ii) your investment, participation, consulting,
employment or directorship in a private equity fund or other business enterprise involving venture
capital which makes, may make or has made investments in a Competitive Business shall not
constitute a violation of this Agreement, provided that you are not engaged, and do not participate
in, such Competitive Business as an employee, officer, consultant or director thereof or otherwise.
You expressly understand and agree that you are receiving adequate and sufficient consideration in
exchange for your agreeing to the restrictions set forth in this paragraph 6(b).
(c) Non-Solicitation. For the period commencing on the Effective Date and continuing
until December 31, 2009, you agree that you will not, directly or indirectly, for your benefit or
for the benefit of any other person, firm, partnership, corporation or other entity (each, a
“Person”), other than with respect to any of the actions which you take in good faith pursuant to
your continuing employment relationship with the Company during the Transition Period, do any of
the following:
| (i) | solicit, influence, induce or encourage or attempt to solicit, influence, induce or encourage any Person known to you to be (or to have been within the then immediately preceding twelve (12) month period) a customer, client, supplier or consultant of the Company or any of its subsidiaries or affiliates, to divert their business to any Competitive Business or otherwise terminate, alter or reduce his, her or its relationship with the Company or any of its subsidiaries or affiliates for any purpose or no purpose; | ||
| (ii) | solicit, influence, induce or encourage or attempt to solicit, influence, induce or encourage any known prospective customer or client of the Company or any of its subsidiaries or affiliates which has been the subject of a written bid, offer or proposal which was known by you by the Company or any of its subsidiaries or affiliates, within the then immediately preceding one (1) year period, in connection with the operation of a Competitive Business; |
Xxxxxx X. Xxxxxxx
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| (iii) | solicit or recruit any individual known to you to be an employee of the Company or any of its subsidiaries or affiliates for the purpose of enticing such individual to leave the employ of the Company or any of its subsidiaries or affiliates, or hire or retain any employee or individual who is an independent contractor of the Company to work for or perform services for any Competitive Business; or | ||
| (iv) | otherwise attempt to limit or interfere with any business agreement or relationship existing between the Company or any of its subsidiaries or affiliates and a third party, other than at the direction of the Company. |
(d) Covenants are Reasonable and Necessary. You agree that due to the uniqueness of
your skills and abilities and the uniqueness of the Confidential Information you possess, the
covenants set forth in this paragraph 6 are reasonable and necessary for the protection and
continuity of the goodwill and business of the Company and its subsidiaries and affiliates. You
further agree that, due to the proprietary nature of the business of the Company and its
subsidiaries and affiliates, the restrictions set forth in this paragraph 6 are reasonable as to
duration and scope.
(e) Remedies and Injunctive Relief. You acknowledge that the Company would suffer
irreparable injury for which monetary damages would not serve as adequate compensation if you were
to breach any of the provisions of this paragraph 6. Therefore, in the event of such a breach, or
threatened breach, you agree that the Company shall be entitled, in addition to any of the rights
and remedies that it may have at law and equity, to immediate injunctive relief against you,
without the need to post any bond. Notwithstanding anything to the contrary contained herein,
including paragraph 16 herein (concerning arbitration), the injunction may be entered by any court
of competent jurisdiction, enjoining and restraining you from engaging in or continuing such breach
or threatened breach. The existence of any claim or cause of action, which you may have or assert
against the Company, shall not serve as a defense or bar to the enforcement of the covenants made
in this paragraph 6. Further, nothing contained herein shall be deemed to preclude the Company
from obtaining any other remedy as a result of your breach or threatened breach hereof, including
recovery of actual monetary damages it may suffer by reason of any such breach or threatened
breach.
7. Return of Property: All Confidential Information and all documents, records,
plans, data, content, reports, lists, papers, articles, notes or other materials, whether
electronic, paper or otherwise, and all software, equipment, and other physical property, and all
copies of the foregoing, whether or not embodying Confidential Information, that have come into
your possession or been produced by you in connection with your employment (“Property”), have been
and remain the sole property of the Company or its subsidiaries or affiliates, as applicable. You
agree that you will return all such Property to the Company on the Termination Date or upon the
Company’s earlier request.
8. [Intentionally Omitted].
Xxxxxx X. Xxxxxxx
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9. Truthful Testimony: Notwithstanding anything else in this Agreement, nothing in
this Agreement is intended to or shall preclude you from providing truthful testimony in response
to a valid subpoena, court order, regulatory request or other judicial, administrative or legal
process or otherwise as required by law, in which event you shall notify the Company in writing as
promptly as practicable after receiving any such request of the anticipated testimony and at least
ten (10) days prior to providing such testimony (or, if such notice is not possible under the
circumstances, with as much prior notice as is possible), nor will any such truthful testimony be
asserted as a violation of this Agreement.
10. Cooperation: Notwithstanding anything else in this Agreement, you agree that,
following the Termination Date, you will cooperate fully with the Company and its subsidiaries and
affiliates concerning requests for information about the business of the Company or its
subsidiaries or affiliates or your involvement and participation therein; the defense, prosecution
or investigation of any claims or actions now in existence or which may be brought in the future
against or on behalf of the Company or its subsidiaries or affiliates which relate to events or
occurrences that transpired while you were employed by the Company; and in connection with any
investigation or review by any federal, state or local regulatory, quasi-regulatory or
self-governing authority (including, without limitation, the Securities and Exchange Commission) as
any such investigation or review relates to events or occurrences that transpired while you were
employed by the Company. Your full cooperation shall include, but not be limited to, being
available to meet and speak with officers, directors, or employees of the Company and/or its
counsel or other representatives at reasonable times and locations, executing accurate and truthful
documents, and taking such other actions as may reasonably be requested of you by the Company
and/or its counsel or other representatives to effectuate the foregoing. In requesting such
cooperation, the Company will consider other commitments that you may have at the time of the
request. The Company will reimburse you for any reasonable, out-of-pocket travel, hotel and meal,
or similar expenses incurred in connection with your performance of obligations pursuant to this
paragraph 10 for which you have obtained prior, written approval from the Company. Any failure by
you to cooperate based upon an assertion of your right not to be a witness against yourself shall
not be considered a violation of this paragraph 10.
11. No Admission of Liability: You acknowledge that the Company is not entering into
this Agreement because it believes you have any cognizable legal claim. The execution, delivery
and performance of this Agreement by the Company and by you shall not be construed as an admission
of liability of any kind on the part of, or as evidence of any unlawful or improper conduct of any
kind by, the Company or any of the Releasees or by you, and any and all such liability and conduct
is expressly denied by the parties hereto.
12. Consultation with Attorney; Knowing and Voluntary Waiver: The Company advises you
to consult with an attorney of your choosing prior to signing this Agreement. You understand and
agree that you have the right and have been given the opportunity to review this Agreement and,
specifically, the General Release in paragraph 5 above, with an attorney. You also understand and
agree that the Company is under no obligation to offer you the payments and benefits set forth in
paragraphs 3 and 4 above and that you are under no obligation to consent to the General Release set
forth in paragraph 5 above. You
Xxxxxx X. Xxxxxxx
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acknowledge and agree that the payments and benefits set forth in paragraphs 3 and 4 above
constitute sufficient consideration to require you to comply with your obligations under this
Agreement, including but not limited to the General Release set forth in paragraph 5. You
represent that you have read this Agreement, including the General Release set forth in paragraph
5, that you understand its terms, and that you enter into this Agreement freely, voluntarily, and
without coercion.
13. Entire Agreement; Modification: The terms described in this Agreement set forth
the entire agreement and understanding between you and the Company and merges and supersedes all
prior agreements, arrangements and understandings, written or oral, between you and the Company
concerning the subject matter hereof (including without limitation that certain Severance
Agreement, dated as of March 1, 2004, by and between you and the Company), except as explicitly
provided herein. You acknowledge and agree that you are not relying on any representations or
promises by any representative of the Company concerning the meaning or any aspect of this
Agreement. This Agreement may not be altered or modified other than in writing signed by you and
an authorized representative of the Company.
14.
Severability; It is the desire and intent of the parties hereto that the
provisions of this Agreement shall be enforced to the fullest extent permissible under applicable
law. In the event that any one or more of the provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of
the provisions contained in this Agreement shall be held to be excessively broad as to duration,
scope, activity or subject, such provisions shall be construed by limiting or reducing them so as
to be enforceable to the maximum extent compatible with applicable law.
15. Waiver: No waiver by either party of any breach by the other party of any
condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of any other provision or condition at the time or at any prior or subsequent time. This
Agreement and the provisions contained in it shall not be construed or interpreted for or against
either party because that party drafted or caused that party’s legal representative to draft any of
its provisions.
16. Arbitration: Except for any action by the Company or any of its subsidiaries or
affiliates seeking injunctive relief in connection with a breach of this Agreement by you as set
forth in paragraph 6(e) above, any dispute, claim or controversy arising under or in connection
with this Agreement, or the breach thereof, or otherwise relating in any way to your ongoing
services during the Transition Period, and any dispute as to the arbitrability under this
provision, shall be resolved exclusively by final and binding arbitration administered by the JAMS
arbitration service and in accordance with its Employment Arbitration Rules and Procedures then in
effect; provided, however, that nothing herein shall require arbitration of any
claim or charge which, by law, cannot be the subject of a compulsory arbitration agreement. Any
arbitration proceeding brought under this Agreement shall be conducted before a single arbitrator
and shall be conducted in Dallas, Texas. The written decision of the arbitrator shall be final and
binding upon the parties and in such form that judgment may be entered in, enforced by, or appealed
from, any court having jurisdiction over the parties. Any arbitration proceedings, decision or
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award rendered hereunder, and the validity, effect and interpretation of this arbitration
provision, shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq, or the Texas
Arbitration Act.
17. Indemnification; Attorneys Fees: Notwithstanding anything in this Agreement to
the contrary, you shall continue to be covered, to the full extent provided by applicable law and
as applicable under all relevant provisions, by the indemnification provisions set forth in the
Company’s Bylaws and Certificate of Incorporation, each as in effect on the date hereof, and by any
directors and officers insurance policies held by the Company. All attorneys fees incurred by you
in connection with the subject matter of this Agreement shall be advanced and paid in full by the
Company.
18. Governing Law: This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without reference to its choice of law rules.
19. Counterpart Signatures: This Agreement may be executed in 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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If the above sets forth our agreement as you understand it and consent to it, please so
signify by signing the enclosed copy of this letter and return it to me at the address above.
| Very truly yours, | ||||||
| Affiliated Computer Services, Inc. | ||||||
| /s/ Xxxxxxx X. Xxxxxxxxx, Xx. | ||||||
| By: | Xxxxxxx X. Xxxxxxxxx, Xx. | |||||
| Title: | Executive Vice President | |||||
Agreed to and Accepted:
|
||||
/s/ Xxxxxx X. Xxxxxxx |
||||
Dated: November 26, 2006 |
| Approved: | /s/ X. Xxxxxxxxxx Xxxxxxx | |||||
| X. Xxxxxxxxxx Xxxxxxx, | ||||||
| Chairman, Compensation Committee | ||||||
| Affiliated Computer Services, Inc. |
EXHIBIT A
November 26, 2006
Board of Directors
Affiliated Computer Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Affiliated Computer Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Gentlemen:
I, Xxxxxx X. Xxxxxxx, hereby resign from all my positions as an officer with Affiliated Computer
Services, Inc. (the “Company”) and its subsidiaries and affiliates, including as the Company’s
Executive Vice President and Chief Financial Officer, effective immediately, but I will remain an
employee of the Company through June 30, 2007.
Sincerely,
Xxxxxx X. Xxxxxxx
EXHIBIT B
ADEA RELEASE
ADEA RELEASE
For good and valuable consideration, you hereby agree to the terms of this additional release
(the “ADEA Release”).
1. You, your heirs, successors, and assigns, hereby knowingly and voluntarily release and
forever discharge the Company and its subsidiaries and affiliates, together with all of their
respective current and former officers, directors, consultants, agents, attorneys, representatives
and employees, and each of their predecessors, successors and assigns (collectively, the
“Releasees”), from any and all debts, demands, actions, causes of actions, accounts, covenants,
contracts, agreements, claims, damages, omissions, promises, and any and all claims and liabilities
whatsoever, known or unknown, suspected or unsuspected, both in law and equity, arising under the
Age Discrimination in Employment Act, as amended, which you ever had, now have, or may hereafter
claim to have against the Releasees by reason of any matter, cause or thing whatsoever arising on
or before the date this Additional Release is executed by you; provided, however,
that this ADEA Release shall not apply to or impair (i) claims for vested benefits pursuant to any
other Company employee benefit plan, as defined in ERISA, in which you were a participant before
the Effective Date; (ii) any claims for unemployment insurance benefits or workers’ compensation
benefits applicable to the period through the Effective Date; or (iii) any claims that may arise
from any violation of the Agreement.
2. You acknowledge and represent that the Company has advised you of your right to review this
ADEA Release with an attorney of your choice and that you have been given twenty-one (21) days to
consider this ADEA Release, although you may sign and return it sooner if you so desire. You
represent that you have read this ADEA Release, that you understand its terms and that you enter
into this ADEA Release freely, voluntarily, and without coercion. You further acknowledge and
represent that you have been advised by the Company that you have seven (7) days from the date of
execution to revoke your consent to this ADEA Release by delivering (by hand or overnight courier)
written notice of revocation to me at the Company, at the address listed in the Agreement. If no
such revocation occurs, this ADEA Release shall become effective on the eighth (8th) day
following the date you sign it. In the event that you revoke your consent, this ADEA Release shall
be null and void and shall not become effective, and your compensation during the Transition Period
will be reduced to the rate of $10,000 per month, pro rated as applicable.
3. This ADEA Release may not be altered or modified other than in a writing signed by you and
an authorized representative of the Company. This ADEA Release shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, without reference to its choice of
law rules. In the event that any part of this ADEA Release shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Dated:
EXHIBIT C
| Potential Additional | Original | Option | ||||||||||||||||||
| Shares Vested on | Vesting Following | Shares Forfeited | Exercise | Expiration | ||||||||||||||||
| Outstanding | Number | Effective Date | Effective Date | on Effective Date | Price | Date | ||||||||||||||
| 7/11/2000 | 30,000 | Fully Vested | N/A | N/A | $ | 16.44 | 9/28/07 | |||||||||||||
| 3/21/2001 | 100,000 | Fully Vested | N/A | N/A | $ | 29.53 | 9/28/07 | |||||||||||||
| 7/23/2002 | 50,000 | 40,000 shares | 10,000 shares eligible to vest on 7/23/07 | N/A | $ | 35.75 | 9/28/07 | |||||||||||||
| 8/11/2003 | 75,000 | 45,000 shares | 15,000 shares eligible to vest on 8/11/2007 | 15,000 shares | $ | 44.10 | 6/30/08 | |||||||||||||
| 7/30/2004 | 50,000 | 20,000 shares | 10,000 shares eligible to vest on 7/30/2007 | 20,000 shares | $ | 51.90 | 6/30/08 | |||||||||||||
| 3/18/2005 | 150,000 | 30,000 shares | 30,000 shares eligible to vest on 3/18/2007 | 90,000 shares | $ | 50.25 | 6/30/08 | |||||||||||||
