EMPLOYMENT AGREEMENT
This Agreement is made as of the 31st day of December, 1997
between SS&C Technologies, Inc., a Delaware corporation with its principal
offices at Corporate Place, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
00000 (the "Company"), and Xxxxxx X. Xxxxxx, an individual residing at 0000
Xxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxxx 00000 (the "Employee").
RECITALS
The Company desires to employ the Employee and the Employee
desires to provide such services upon the terms and conditions hereinafter
set forth.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto, each intending to be legally
bound hereby, agree as follows:
1. Employment. The Company hereby employs the Employee as a Senior
Vice President, and the Employee accepts such employment for the term of
employment specified in Section 3 below (the "Employment Term"). During the
Employment Term, the Employee shall have the duties, responsibilities and
authority which normally attend such position in a corporation similar in
size and character to the Company.
2. Performance. The Employee agrees to devote his best efforts and
all of his business time to the performance of his duties hereunder during
the Employment Term.
3. Employment Term. The Employment Term shall begin on the date of
this Agreement and continue until the fourth anniversary of such date,
unless earlier terminated pursuant to Section 8.
4. Compensation.
(a) Salary. During the Employment Term, the Company shall
pay the Employee an annual base salary, payable in accordance with normal
payroll practice, subject to withholding and other applicable taxes, at the
annualized rate of $252,000 per year. The Employee's salary shall be
subject to review on an annual basis by the Compensation Committee of the
Board of Directors of the Company; provided, however, that in no event
shall the Employee's base salary be decreased.
(b) Bonus. The Employee shall be eligible to participate
in such bonus plan as may be approved from time to time by the Compensation
Committee of the Board of Directors of the Company; provided, however, that
the Employee shall receive a bonus of up to $200,000 per annum (beginning
with the bonus due for services rendered in 1998) based upon performance
targets to be agreed upon each year by the Company and the Employee.
(c) Option. The Company agrees to grant the Employee an
option (the "Option") that qualifies (to the extent allowable by law) as an
incentive stock option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, on the date hereof to purchase 325,000
shares of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), at an exercise price equal to the closing sale price of the Common
Stock on the Nasdaq National Market on the date hereof. The Option, the
form of which is attached hereto as Annex A, shall be granted under the
Company's 1994 Stock Option Plan. The Option shall be cumulatively
exercisable (i) with respect to 25% of the shares underlying the Option, on
the first anniversary of the date hereof, and (ii) with respect to the
remaining 75% of the shares underlying the Option, in 36 equal monthly
installments on the same day of the month as the date hereof commencing on
the 13th month following the date hereof.
(d) Additional Benefits. In addition to the other
compensation payable to the Employee hereunder during the Employment Term
the Company shall provide the Employee with such other benefits as may be
approved by the Company's Board of Directors, and will also permit the
Employee to participate in any and all group life insurance plans, medical
and dental health benefit plans, disability plans and the like and all
other incentive plans maintained by or on behalf of the Company.
5. Expenses. The Employee shall be reimbursed by the Company for
all reasonable expenses incurred by him in connection with the performance
of his duties hereunder.
6. Non-Competition and Non-Solicitation.
(a) The Employee recognizes that his willingness to enter
into the restrictive covenants contained in this Section 6 was a critical
condition precedent to the Company's willingness to enter into and perform
under this Agreement and the Agreement and Plan of Merger, dated the date
hereof, among the Company, Securities Software Acquisition Corp., Xxxxxx
Xxxxx Systems, Inc. ("Xxxxxx") and the stockholders of Xxxxxx. The Employee
also acknowledges that the restrictions contained in this Section 6 will
not materially or unreasonably interfere with the Employee's ability to
earn a living.
(b) The Employee agrees that during the Non-Competition
Period (defined below) he will not in any capacity, either separately,
jointly, or in association with others, directly or indirectly, as an
officer, director, consultant, agent, employee, owner, partner, joint
venturer, distributor, dealer, representative, stockholder, investor,
lender or otherwise, engage or have a financial interest (excepting only
the ownership of not more than 2% of the outstanding securities of any
class listed on an exchange or regularly traded in the over-the-counter
market) in any business located anywhere in the Restricted Area (as herein
defined) which (i) competes directly with the Company or (ii) provides
financial software products or services that compete directly with products
or services of the Company. "Restricted Area" means North America, Asia and
Europe. The "Non-Competition Period" is (a) the period during which the
Employee is employed by the Company plus (b) a period of two years
thereafter.
(c) The Employee further agrees that during the
Non-Competition Period he will not in any capacity, either separately,
jointly or in association with others, directly or indirectly, solicit,
divert or take away, attempt to take away or otherwise contact any of the
Company's clients, customers, accounts, distributors, dealers or
representatives as shown by the Company's records, that were clients,
customers, distributors, accounts, dealers or representatives of the
Company at any time during the one year immediately preceding the date of
termination of the Employee's employment by the Company if such
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solicitation or contact is for the specific purpose of selling products or
services that compete with any products or services that the Company had
available for sale to its clients, customers, accounts, distributors,
dealers or representatives or prospects during the one year immediately
preceding the end of the Non- Competition Period. The Employee further
agrees that during the Non-Competition Period he will not in any capacity,
either separately, jointly or in association with others, directly or
indirectly, recruit, solicit or hire any employee or consultant of the
Company or induce or attempt to induce any employee or consultant of the
Company to terminate his or her employment or consultancy with, or
otherwise cease his or her relationship with, the Company.
(d) If a court determines that the foregoing restrictions
are too broad or otherwise unreasonable under applicable law, including
with respect to time or space, the court is hereby requested and authorized
by the parties hereto to revise the foregoing restrictions to include the
maximum restrictions allowed under applicable law. The Employee expressly
agrees that breach of the foregoing would result in irreparable injuries to
the Company, that the remedy at law for any such breach will be inadequate
and that upon breach of this provision, the Company, in addition to all
other available remedies, shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction without the
necessity of proving the actual damage to the Company. The parties hereto
intend that these non-competition and non- solicitation provisions shall be
deemed to be a series of separate covenants, one for each and every county
of each and every state of the United States of America and each and every
political subdivision of each and every country outside the United States
of America where this provision is intended to be effective. For purposes
of this Section 6 and Section 7, the "Company" refers to the Company and
any subsidiaries of the Company.
7. Secret Processes and Confidential Information.
(a) For the Employment Term and thereafter, (i) the
Employee will not divulge, directly or indirectly, other than in the
regular and proper course of business of the Company or as required by law,
any confidential knowledge or information with respect to the operation or
finances of the Company, including without limitation, inventions,
products, machinery, processes, methods, techniques, compositions,
projects, developments, plans, financial data, personnel data, computer
programs and customer and supplier lists (collectively, "Confidential
Information"), and (ii) the Employee will not use, directly or indirectly,
any Confidential Information for the benefit of anyone other than the
Company; provided, however, that the Employee has no obligation, express or
implied, to refrain from using or disclosing to others any such knowledge
or information which is or hereafter shall become available to the public
other than through disclosure by the Employee. The Employee agrees that all
files, letters, memoranda, reports, records, data, sketches, drawings,
program listings or other written, photographic, or other tangible material
containing Confidential Information, whether created by the Employee or
others, which shall come into his custody or possession, shall be and are
the exclusive property of the Company to be used by the Employee only in
the performance of his duties for the Company.
(b) All new processes, techniques, know-how, inventions,
improvements, discoveries, methods, plans, products, works of authorship,
patents and devices developed, made or invented by the Employee, alone or
with others, whether patentable or not, while an employee of the Company
(collectively, the "Developments"), shall become and be the sole property
of the Company unless released in writing by the Company. The Employee
agrees to assign and does hereby assign to the Company (or any person or
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entity designated by the Company) all his right, title and interest in and
to all Developments and all related patents, patent applications,
copyrights and copyright applications. In addition, the Employee agrees to
cooperate fully with the Company, both during and after his employment with
the Company, with respect to the procurement, maintenance and enforcement
of copyrights and patents (both in the United States and foreign countries)
relating to Developments. The Employee shall sign all papers, including,
without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights,
and powers of attorney, which the Company reasonably may deem necessary or
desirable in order to protect its rights and interests in any Development.
(c) Notwithstanding the foregoing, if the Employee is
required to disclose or divulge Confidential Information pursuant to any
subpoena or other judicial process he will promptly so notify the Company,
and if so requested by the Company, will assist the Company in seeking a
protective order with respect thereto. If the Company cannot or chooses not
to obtain such a protective order, the Employee will divulge only such
Confidential Information as he is advised by his counsel is required to be
disclosed, and will use his best efforts to ensure that the balance of such
Confidential Information will be kept confidential.
8. Termination.
(a) Termination at End of Term. Unless affirmatively
extended by written agreement of the Company and the Employee, the
employment of the Employee hereunder shall terminate at the end of the
Employment Term.
(b) Termination by the Company With Cause. The Company
shall have the right at any time to terminate the Employee's employment
hereunder by written notice upon the occurrence of any of the following
(any such termination being referred to as a termination for "Cause"):
(i) the commission by the Employee of any deliberate and
premeditated act, or any gross negligence in the performance of
his duties, that materially and adversely affects the business,
financial condition or results of operations of the Company;
(ii) Employee's habitual drunkenness, use of illegal substances or
drugs or the use, possession, distribution or being under the
influence of alcohol or illegal substances or drugs in the
workplace (the only workplace exception is that the Employee may
consume alcohol reasonably and responsibly, if he so chooses, at
legitimate business events and functions where alcohol is legally
available);
(iii) the conviction by the Employee of a felony involving
dishonesty or moral turpitude;
(iv) the wilful failure or refusal of the Employee to perform his
duties hereunder, which failure or refusal continues for 30 days
after written notice thereof from the Company to the Employee; or
(v) the breach by the Employee of any terms of this Agreement,
which breach continues for 30 days subsequent to written notice
from the Company to the Employee of the breach.
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(c) Termination by Company for Death or Disability. The
Company shall have the right at any time to terminate the Employee's
employment hereunder by 30 days' written notice upon the Employee's
inability to perform his duties hereunder by reason of any mental, physical
or other disability for a period of at least six consecutive months
(referred to herein as a "disability"), as determined by an independent
physician. The Employee's employment hereunder shall also terminate upon
the death of the Employee.
(d) Termination by Company without Cause. The Company
shall have the right at any time by 45 days' written notice to Employee to
terminate the Employee's employment for any other reason without Cause.
9. Effect of Termination of Employment.
(a) With Cause. If the Employee's employment is
terminated with Cause, all benefits shall cease at the time of such
termination; provided, however, that the Employee shall be entitled to
continue to participate in the Company's medical benefit plans, at his own
expense, to the extent required by law.
(b) Death or Disability. If the Employee's employment is
terminated by the death or disability of the Employee (pursuant to Section
8(c)), all benefits shall cease at the time of such death or disability;
provided, however, that the Employee or, in the event of the death of the
Employee, the Employee's estate, shall be entitled to continue to
participate in the Company's medical benefit plans, at his expense or the
expense of his estate, to the extent required by law.
(c) Without Cause. If the Employee's employment is
terminated by the Company without Cause (pursuant to Section 8(d)), then
the Employee shall be entitled to the following benefits in complete
discharge of the Company's obligations hereunder:
(i) the Employee's salary specified in Section 4(a) shall
continue to be paid in monthly installments for the duration of
the Employment Term, and the Employee shall receive a lump sum
payment of $250,000 within ten days of the date of termination;
and
(ii) the Employee's additional benefits specified in
Section 4(d) shall terminate at the time of such termination;
provided, however, that the Employee shall be entitled to
participate in the Company's medical benefit plans, at the
Company's expense, for the duration of the Employment Term.
(d) Constructive Termination. If the Employee terminates
its employment with the Company because the Employee has been assigned
tasks, responsibilities or duties that would be inconsistent with such
Employee's title or this Agreement (and the Company has failed to cure such
assigned tasks, responsibilities or duties within 30 days of written notice
by the Employee), or because the Company breaches any material term of this
Agreement, then the Employee shall be entitled to terminate its employment,
and to receive the compensation specified in Section 9(c)(i) and (ii)
hereof.
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10. Insurance. The Company may purchase insurance on the life
of the Employee, and if it does so, the Employee shall cooperate fully by
performing all the requirements of the life insurer which are necessary
conditions precedent to the issuance of the life insurance policy issued by
it. Notwithstanding the foregoing, if at the time of termination for any
reason (other than death), the Company is maintaining a life insurance
policy on the Employee which has a cash surrender value, then to the extent
permitted under such policy the Employee may purchase such policy from the
Company by paying to the Company the cash surrender value thereof.
11. Notice. Any notices required or permitted hereunder shall be
in writing and shall be deemed to have been given when personally delivered
or when mailed, certified or registered mail, postage prepaid, to the
addresses set forth above or to such other addresses as the parties may
hereafter give notice provided herein.
12. General.
(a) Prior Agreements. This Agreement supersedes and
replaces all prior agreements between the Company and the Employee, whether
written or oral, relating to his employment by the Company.
(b) Governing Law. The terms of this Agreement shall be
governed by the substantive laws (and not the law of conflicts) of the
State of Delaware.
(c) Assignability. The Employee may not assign his
interest in or delegate his duties under this Agreement. The covenants and
obligations of the Employee hereunder shall redound to the benefit of the
Company's successors and assigns.
(d) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Company, its successors and assigns.
(e) Entire Agreement; Modification. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and may not be modified or amended in any way except
in writing by the parties hereto.
(f) Duration. Notwithstanding the term of employment
hereunder, this Agreement shall continue for so long as any obligations
remain under this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have hereunto executed this Agreement the day and year first written
above.
SS&C TECHNOLOGIES, INC.
By:_________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
EMPLOYEE
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Xxxxxx X. Xxxxxx
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