Amendment 2010-1 to Employment Agreement
Exhibit 10.37
Amendment 2010-1 to Employment Agreement
THIS AMENDMENT 2010-1 TO EMPLOYMENT AGREEMENT (the “Addendum”) entered into this
17th day of March, 2010, by and between Xxx Xxxxxx (“Executive”) and SunGard
Public Sector Inc. (formerly named SunGard HTE Inc., the “Company”).
WHEREAS, Executive is currently employed by the Company and entered into an Employment
Agreement dated as of November 15, 2007 (the “Employment Agreement”) with the Company,
pursuant to which Executive is entitled to certain benefits concerning his employment.
WHEREAS, the parties wish to enter into this Amendment to amend his Employment Agreement to
provide enhanced severance benefits in the event of a Change of Control (as defined in the
Employment Agreement) or a Sale of the Public Sector Business (as defined in the Employment
Agreement).
NOW, THEREFORE, intending to be legally bound and in consideration of the mutual covenants and
conditions herein contained, the parties hereby agree that the Employment Agreement is amended as
follows:
1. Section 2.2 is amended by adding a new Section 2.2(c) to the end to read as follows:
(c) Notwithstanding the provisions of Section 2.2(a) and 2.2(b), in the event of a
termination of Executive as described in Section 2.1 during the Employment Term and upon or
after a Change of Control or a Sale of the Public Sector Business, if Executive executes and
does not revoke a Release, Executive shall be entitled to receive the following severance
benefits, in lieu of the payment described in Section 2.2(a) and in lieu of the severance
benefits described in Section 2.2(b):
(i) Executive shall receive a lump sum cash payment equal to two times the
sum of Executive’s annual Base Salary plus Executive’s Target Incentive Bonus in effect
immediately before the Termination Date (as defined in Section 3). For this purpose, the
“Target Incentive Bonus” means Executive’s target annual incentive bonus amount
(measured at the fourth quartile target, identified “goal” target or other similar target as
determined by the Company at the date of termination, without taking into account any
incentive override for above goal performance, or any project-specific or other non-standard
incentives) in effect under the Company’s Executive Incentive Plan for the year of
termination.
(ii) Executive shall receive a pro rata Target Incentive Bonus for the year
in which Executive’s Termination Date occurs. The pro rata amount shall be determined as
the Target Incentive Bonus multiplied by the number of days in which Executive was employed
by the Company during the year of termination, including the Termination Date, divided by
365.
(iii) The Company shall pay Executive a lump sum cash payment equal to the
cost (calculated as described below) that Executive would incur if Executive continued
medical, dental and vision coverage for Executive, and, where applicable, his or her spouse
and dependents, for the two-year period following the
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Termination Date. For this purpose, the monthly cost shall be determined as 100% of the applicable monthly premium for the cost
of medical, dental and vision coverage for Executive, less the monthly premium charge that
is paid by active Company employees for similar coverage as in effect at Executive’s
termination date. The cash payment shall be increased by a tax gross up payment equal to
Executive’s income and FICA tax imposed on the payment under this subsection (iii).
Executive may elect COBRA continuation coverage according to the terms of the Company’s
applicable benefit plans.
(iv) Executive shall receive any other amounts earned, accrued or owing but
not yet paid under Section 1 above and any other benefits in accordance with the terms of
any applicable plans and programs of the Company.
(v) Payment of the lump sum benefits described above shall be made on the 60th day
after Executive’s Termination Date, subject to Executive’s execution of an effective
Release.
2. Section 2.2(b)(v) of the Employment Agreement is amended to read as follows:
(v) Payment of the lump sum benefits described above shall be made on the 60th day
after Executive’s Termination Date, subject to Executive’s execution of an effective
Release.
3. Section 3(c) of the Employment Agreement is amended to read as follows:
(c) “Change of Control” shall mean “the occurrence of (a) any consolidation or
merger of SunGard Capital Corp. (“Capital Corp.”) (or any other parent company (a
“Parent Company”)) of SunGard that owns each of the Availability Services Business
segment, financial systems business segment, higher education systems business segment and
public sector business with or into any other person, or any other corporate
reorganization, transaction or transfer of securities of Capital Corp (or such other Parent
Company) by its stockholders, or series of related transactions (including the acquisition
of capital stock of Capital Corp. or such other Parent Company), whether or not Capital
Corp. (or such other Parent Company) is a party thereto, in which the stockholders of
Capital Corp. immediately prior to such consolidation, merger, reorganization or
transaction, own, directly or indirectly, capital stock either (i) representing directly, or
indirectly through one or more entities, less than fifty percent (50%) of the economic
interests in or voting power of Capital Corp. (or such other Parent Company) or other
surviving entity immediately after such consolidation, merger, reorganization or transaction
or (ii) that does not directly, or indirectly through one or more entities, have the power
to elect a majority of the entire board of directors of Capital Corp. (or such other Parent
Company) or other surviving entity immediately after such consolidation, merger,
reorganization or transaction, (b) any transaction or series of related transactions,
whether or not Capital Corp. (or such other Parent Company) is a party thereto, after giving
effect to which in excess of fifty percent (50%) of the voting power of Capital
Corp. (or such other Parent Company) is owned directly, or indirectly
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through one or more
entities, by any person and its “affiliates” or “associates” (as such terms are defined in
the Rules promulgated under the Exchange Act of 1934, as amended (the “Exchange Act
Rules”)) or any “group” (as defined in the Exchange Act Rules), other than, directly or
indirectly, Qualified Institutional Investors (as defined in the Stockholders Agreement,
which is incorporated by reference herein) (and in the case of a “group,” excluding a
percentage of such “group” equal to the percentage of the voting power of such group
controlled by any Qualified Institutional Investors), excluding, in any case referred to in
clause (a) or (b) any Initial Public Offering (as defined in the Stockholders Agreement) or
any bona fide primary or secondary public offering following the occurrence of an Initial
Public Offering; or (c) a sale, lease or other disposition of all or substantially all of
the assets of Capital Corp. or such other Parent Company, in each case on a consolidated
basis with its subsidiaries (including the stock of SunGard), excluding, in any case
referred to in clause (c), any sale, lease or other disposition to an entity of which the
stockholders of Capital Corp. immediately prior to the sale, lease or other disposition own,
directly or indirectly, through one or more entities, capital stock either representing
directly, or indirectly through one or more entities, 50% or more of the economic interests
or voting power. For the avoidance of doubt, a spin-off of one or more of the SunGard
businesses, a Sale of the Public Sector Business, a sale of any other SunGard business or a
comparable transaction shall not, in any case, constitute a Change of Control.
4. Section 3(g) of the Employment Agreement is amended to read as follows:
(g) “Sale of the Public Sector Business” shall mean a sale, exchange or
other disposition or transfer of all or substantially all of the business or assets of the
Public Sector Business to a purchaser that is unrelated to SunGard or any of the Investors;
provided that a Sale of the Public Sector Business shall not also constitute a Change of
Control. For the avoidance of doubt, a spin-off of the Public Sector Business shall not be
considered a Sale of the Public Sector Business.
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5. Section 3 of the Employment Agreement is amended by adding the following definition
to the end:
(j) “Investors” shall mean the private equity funds sponsored by
Silver Lake Partners, Xxxx Capital, The Blackstone Group, Xxxxxxx, Sachs & Co., Kohlberg
Kravis Xxxxxxx, Providence Equity Partners and Texas Pacific Group that became stockholders
of Capital Corp. and SunGard Capital Corp. II in August 2005.
6. In all respects not modified by this Amendment, the Employment Agreement is hereby
ratified and confirmed.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this
Addendum as of March 17, 2010.
| SunGard Public Sector Inc. |
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| By: | /s/ Xxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxx Xxxxx | |||
| Title: | Chief Executive Officer | |||
| Executive |
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| /s/ Xxx Xxxxxx | ||||
| Xxx Xxxxxx | ||||
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