RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT (this "Agreement") is made as of the
2nd day of January, 2002 by and between XXXXXXX X. XXXX ("Executive") and
SYSTEMS & COMPUTER TECHNOLOGY CORPORATION (the "Company").
WHEREAS, Executive and the Company have agreed mutually that
Executive will retire from the employment of the Company and cease to serve as
its President and Chief Executive Officer and as the Chairman of its Board of
Directors (the "Board"); and
WHEREAS, the Company has agreed to pay Executive certain
amounts and to provide him with certain rights and benefits, subject to the
execution of this Agreement.
NOW THEREFORE, in consideration of these premises and the
mutual promises contained herein, and intending to be legally bound hereby, the
parties agree as follows:
SECTION 1. Retirement. Executive hereby retires from employment with the Company
on January 2, 2002 (the "Retirement Date") and hereby resigns as the Company's
President and Chief Executive Officer, as an employee of the Company, as
Chairman of the Board, as a member of the Board and any committee thereof, and
as an employee, officer, director or board committee member of any subsidiary or
affiliate of the Company, all effective as of the Retirement Date.
SECTION 2. Consideration. If Executive executes and delivers this Agreement to
the Company and does not exercise his right to rescind this Agreement as
described below in Section 10, he (or his estate, in the event of his death
prior to the due date of any payment or the provision of any benefit) will
become entitled to the rights, benefits and payments described in this
Section 2.
2.1. Lump Sum Severance Payment. The Company will make a single sum
severance payment to Executive in an amount equal to $1,364,750 on January 10,
2002 or, if later, on the eighth day following the execution and delivery of
this Agreement to the Company without rescission.
2.2. Accrued But Unused Vacation. Executive acknowledges and affirms
that he has no entitlement to any accrued but unused vacation.
2.3. Continuation of Welfare Benefits.
2.3.1. Group Health Continuation. For each of the first 18 months
following the Retirement Date, the Company will pay Executive (no later than the
last business day of each month) an amount equal to the applicable premium for
continuation coverage for Executive (and, if applicable, his spouse and covered
dependents) under the Company's group health plan, as determined under 29 U.S.C.
ss. 1164, such that on an after-tax basis Executive has sufficient funds to make
the premium payments to the Company. For the six months following the expiration
of the 18 month period described in the preceding sentence, the Company will pay
Executive (no later than the last business day of each month) an amount
sufficient to purchase an individual HIPAA conversion policy (as made available
on a guaranteed issue basis in Executive's state of residence) and an additional
amount which, after payment of all taxes in connection with that additional
amount, results in Executive's being in the same after-tax position as if such
HIPAA conversion coverage had been provided on a wholly tax-free basis.
Executive will be required to take any necessary steps to elect COBRA
continuation coverage and obtain HIPAA conversion coverage at the end of the
COBRA continuation period; provided, however, that upon request of Executive,
the Company will provide reasonable assistance to Executive in this process.
2.3.2. Other Group Benefits. Until the second anniversary of the
Retirement Date and subject to any limitations contained in the applicable
insurance policy, the Company will continue the coverage of Executive (and, if
applicable, his spouse and covered dependents) under the following group
insurance plans or arrangements (or such successor group insurance plans or
arrangements to the following group insurance plans or arrangements as the
Company may sponsor from time to time for the benefit of its employees
(i) Medical Plan (Cigna PPO 90)
(ii) Dental Plan (SCT Dental Plan)
(iii) Group-Term Life Insurance Plan
(iv) Accidental Death and Dismemberment Plan
(v) Employee Assistance Program
2.3.3. Individual Insurance Benefits. The Company will continue to
pay the premiums due under Provident Life and Accident Insurance Company Policy
# 6011686 (the "Individual LTD Policy") and National Life of Vermont Policy #
NL1966159 (the "Individual Term Life Policy"), as now in effect, for coverage
through the second anniversary of the Retirement Date. The Company will continue
to pay the premiums due under Principal Mutual Life Insurance Policy # 4381682,
Principal Mutual Life Insurance Policy #4381932 and Manufacturers Life Insurance
Company Policy #58205220 (collectively, the "Split Dollar Policies"), as now in
effect, for coverage through the fifth anniversary of the Retirement Date.
2.4. Transfer of Insurance Policies. As soon as practicable following
the Retirement Date, the Company will relinquish all rights under and transfer
to Executive ownership of the Split Dollar Policies. As soon as practicable
following the second anniversary of the Retirement Date, the Company will
relinquish all rights under and transfer to Executive ownership of the
Individual LTD Policy and the Individual Term Life Policy.
2.5. Government Market Transaction Bonus. But for the termination of
his employment, Executive would have become entitled to a bonus payment in
connection with the sale of the Company's Global Government Solutions business.
In lieu of that bonus payment, the Company will reduce the outstanding principal
due under Executive's promissory note to the Company dated May 21, 2001 (the
"Note") by $78,400 and immediately release to Executive 37,333 of the Company's
common shares that are securing the Note.
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2.6. Outsourcing Transaction Bonus.
2.6.1. Payment of Bonus. If prior to December 31, 2002, there
occurs a Transaction (as defined below in Section 2.6.3), Executive will be
entitled to receive a cash bonus award equal to 0.304% of the Transaction Price
(as defined below in Section 2.6.3). Any such cash bonus will be paid in cash as
soon as practicable following payment of the Transaction Price; provided,
however, that in the case of a Transaction Price payable in multiple
installments, the bonus payable under this section will be paid in proportionate
installments, with each such installment payable at the same time as the
corresponding installment of the Transaction Price, with interest at the same
rate (if any) as is paid on the deferred installment to the Company or its
shareholders.
2.6.2. Offset Against Note. If any bonus becomes payable under
this Section 2.6 before the Note is paid in full, the obligation of the Company
to pay that bonus will be offset against the obligation of Executive to pay
principal or interest then outstanding under that Note. In addition, a number of
the Company's common shares securing the Note (determined by multiplying 2,667
by the fraction that any bonus payable under this Section 2.6 bears to the total
principal and interest then outstanding under the Note) will be released to
Executive.
2.6.3. Definitions. For purposes of this Agreement:
(i) "Transaction" means a transaction or series or combination
of transactions whereby, directly or indirectly, control of the Company's
outsourcing business is transferred for consideration to Affiliated Computer
Systems, Inc., KPMG, Unisys or any of their affiliates. A transfer of control of
the entire Company or any part thereof, however structured, to Affiliated
Computer Systems, Inc., KPMG, Unisys or any of their affiliates will also
constitute a "Transaction" if substantially all the assets of the outsourcing
business, or control of the outsourcing business, is transferred in connection
with that transaction. For this purpose, "control" means ownership of
substantially all the assets of the outsourcing business or direct or indirect
ownership of securities possessing more than 50% of the combined voting power of
the outstanding voting securities of an entity that owns substantially all the
assets of the outsourcing business.
(ii) "Transaction Price" means, in connection with any
Transaction, the gross value of all cash, securities (including, but not limited
to common stock, convertible securities, options, warrants and stock
appreciation rights) and other property paid directly or indirectly to the
Company or its stockholders solely in consideration for the outsourcing
business, and the value of any net debt. For purposes hereof, the term "net
debt" shall mean the amount of long and short term debt for borrowed money and
capitalized leases related to the outsourcing business which either remain an
obligation of the outsourcing business at the closing of the Transaction or are
assumed, refinanced, retired or repaid in connection with the Transaction, less
the amount of any cash related to the outsourcing business which either remains
an asset of that business at the closing of the Transaction or is otherwise
transferred to the buyer in connection with the Transaction. In the event a
Transaction takes the form of a sale of all or substantially all of the
outsourcing business' assets, Transaction Price shall also include the value of
any current assets not purchased less the value of any current liabilities not
assumed. The value of any securities paid to the Company or its shareholders
shall be determined as follows: (a) the value of securities that are freely
traded in an established public market will be determined on the basis of the
average closing market price of such securities on the 20 trading days
immediately preceding the consummation of the Transaction; and (b) the value of
securities that are not freely tradable or have no established public market,
and the value of consideration that consists of other property, shall be the
fair market value thereof as determined by the parties. The value of any
deferred or contingent payments shall be determined when the same are received.
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2.7. Treatment of Outstanding Stock Options. Notwithstanding any
contrary term contained in any equity incentive plan of the Company or in any
stock option agreement between Executive and the Company, each option to
purchase securities of the Company held by the Executive on the Retirement Date
will become fully vested and immediately exercisable and will remain exercisable
for the lesser of its remaining term, or the two year period beginning on the
Retirement Date.
2.8. Car Lease. The Company will continue to make the monthly lease
payments due under the lease agreement for the 2002 Mercedes now used by
Executive for the remainder of the term of that agreement, as now in effect. In
addition, upon request of Executive and subject to the terms of the lease
agreement, the Company will assign to Executive its right to purchase the
automobile at the end of the lease term.
2.9. Computers. The Company will give to Executive the computers
previously provided to him for business use at his office and his homes;
provided, however, that any property of the Company that is stored on those
computers will be removed by Executive and returned to the Company in accordance
with Section 9 of this Agreement.
2.10. Voicemail and E-Mail. Until June 30, 2002, Executive may continue
to access remotely the business voicemail and e-mail accounts assigned to him on
the Company's systems.
2.11. Reimbursement of Legal and Outplacement Expenses. The Company
will pay or reimburse Executive for up to $50,000 of the following expenses
incurred prior to the second anniversary of the Retirement Date: legal fees and
disbursements associated with the negotiation and drafting of this Agreement;
executive outplacement services; temporary office space; secretarial and
administrative support services; and tax and financial planning services.
SECTION 3. Acknowledgement. Executive acknowledges that, except as provided
herein specifically: (i) he has no entitlement from the Company or any of its
subsidiaries or affiliates under any employment, change in control, severance or
any similar arrangement, and (ii) the Company does not and will not have any
liability or obligation to him. Executive further acknowledges that, in the
absence of this Agreement, the payments, rights and benefits specified in
Section 2 would not otherwise be due to him.
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SECTION 4. Release by Executive. Executive hereby fully and forever releases and
discharges Company and its parents, affiliates and subsidiaries, including all
predecessors and successors, assigns, officers, directors, trustees, employees,
agents and attorneys, past and present (each, an "Affiliate"), from any and all
claims, demands, liens, agreements, contracts, covenants, actions, suits, causes
of action, obligations, controversies, debts, costs, expenses, damages,
judgments, orders and liabilities, of whatever kind or nature, direct or
indirect, in law, equity or otherwise, whether known or unknown, arising out of
his employment by the Company or the termination thereof, including, but not
limited to, any claims for relief or causes of action under the Age
Discrimination in Employment Act, 29 U.S.C. ss. 621 et seq., or any other
federal, state or local statute, ordinance or regulation regarding
discrimination in employment and any claims, demands or actions based upon
alleged wrongful or retaliatory discharge or breach of contract under any state
or federal law. Executive expressly represents that he has not filed a lawsuit
or initiated any other administrative proceeding against the Company or any
Affiliate, and that he has not assigned any claim against the Company or any
Affiliate to any other person or entity. The foregoing will not be deemed to
release the Company from claims solely to enforce this Agreement or Executive's
rights under any employee benefit plan or program of the Company in which
Executive participated and under which he is due a benefit. In addition, the
Company confirms that, following the Retirement Date, Executive will continue to
have the same rights to indemnification for acts performed as an employee,
officer or director of the Company, or of any of its subsidiaries or affiliates,
as he had immediately prior to the Retirement Date. Therefore, this Section 4
will also not be deemed to release any claim solely for indemnification under
the Company's By-Laws, under any indemnification agreement between the Company
and Executive or under any similar arrangement. Finally, this Section 4 will not
prevent Executive from filing a charge with the Equal Employment Opportunity
Commission (or similar state agency) or participating in any investigation
conducted by the Equal Employment Opportunity Commission (or similar state
agency); provided, however, that any claims by Executive for personal relief in
connection with such a charge or investigation (such as reinstatement or
monetary damages) would be barred.
SECTION 5. Release by the Company. The Company hereby fully and forever releases
and discharges Executive from any and all claims, demands, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, damages, judgments, orders and
liabilities, of whatever kind or nature, direct or indirect, in law, equity or
otherwise, whether known or unknown, arising out of, or during, Executive's
employment by, or service as a member of the Board for, the Company or the
terminations thereof. The foregoing will not be deemed to release Executive from
his obligations under the Note.
SECTION 6. Restrictive Covenants. As consideration for the payments, rights and
benefits that Executive will receive pursuant to this Agreement, Executive
agrees to be bound by this Section 6.
6.1. Non-Compete. Executive will not, directly or indirectly, do any of
the following during the Restricted Period (as defined below in Section 6.2):
6.1.1. engage or participate in any business activity
substantially similar to an activity from which the Company or any of its
subsidiaries or affiliates derived material revenue in the calendar year
preceding the Retirement Date (a "Competing Business");
6.1.2. become interested in (as owner, stockholder, lender,
partner, co-venturer, director, officer, employee, agent or consultant) any
person, firm, corporation, association or other entity engaged in any Competing
Business. Notwithstanding the foregoing, Executive may hold up to 4.9% of the
outstanding securities of any class of any publicly-traded securities of any
company;
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6.1.3. solicit or call on, either directly or indirectly, (i) for
purposes of selling goods or services competitive with goods or services sold by
the Company, any customer with whom the Company shall have dealt or any
prospective customer that the Company shall have identified and solicited at any
time during Executive's employment by the Company; or (ii) for the purposes of
purchasing goods or products for resale competitive with goods or products
purchased by the Company for resale, any supplier with whom the Company shall
have dealt at any time during Executive's employment by the Company;
6.1.4. influence or attempt to influence any supplier, customer or
potential customer of the Company to terminate or modify any written or oral
agreement or course of dealing with the Company;
6.1.5. influence or attempt to influence any person to terminate
or modify any employment, consulting, agency, distributorship or other
arrangement with the Company; or
6.1.6. employ or retain, or arrange to have any other person or
entity employ or retain, any employee, consultant, agent or distributor of the
Company or any of its subsidiaries or affiliates, or any person or entity who,
within the 12 months preceding the application of this section, was employed or
engaged by the Company or any of its subsidiaries or affiliates as an employee,
consultant, agent or distributor.
6.2. Restricted Period. For purposes of this Agreement, the "Restricted
Period" generally means the two-year period beginning on the Retirement Date;
provided, however, that with respect to the application of Sections 6.1 to any
Competing Business providing (or attempting to provide) goods or services to
higher education institutions, Restricted Period means the three-year period
beginning on the Retirement Date.
6.3. Acknowledgments. Executive acknowledges that the restrictions
contained in this Section 6 are reasonable and necessary to protect the
legitimate interests of the Company and its subsidiaries and affiliates and that
the duration and geographic scope of Section 6.1 are reasonable given
Executive's former position within the Company and the substantial consideration
payable under this Agreement. Executive further acknowledges that this Section 6
is included herein in order to induce the Company to enter into this Agreement
and that the Company would not have entered into this Agreement or in the
absence of these provisions.
6.4. Enforcement.
6.4.1. Specific Enforcement. Executive acknowledges that any
breach by him, willfully or otherwise, of this Section 6 will cause continuing
and irreparable injury to the Company for which monetary damages would not be an
adequate remedy. Executive will not, in any action or proceeding to enforce any
of the provisions of this Agreement, assert the claim or defense that such an
adequate remedy at law exists. In the event of any such breach by Executive, the
Company will have the right to enforce this Section 6 by seeking injunctive or
other relief in any court and this Agreement will not in any way limit remedies
of law or in equity otherwise available to the Company; provided, however, that
the Company will not institute any such action prior to giving Executive written
notice of any alleged violation of the provisions of this Section 6 and the
passage of ten days following the delivery of that notice without cure by
Executive.
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6.4.2. Restitution. If Executive breaches any of this Section 6,
the Company will have the right and remedy to require Executive to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result of
such breach. This right and remedy will be in addition to, and not in lieu of,
any other rights and remedies available to the Company under law or in equity.
6.4.3. Extension of Restricted Period. If Executive breaches this
Section 6, the Restricted Period will be extended by an amount of time equal to
the period that Executive was in breach.
6.4.4. Judicial Modification. If any court determines that this
Section 6.1 (or any part thereof) is unenforceable because of its duration or
geographic scope, that court will have the power to modify that section and, in
its modified form, that section will then be enforceable.
6.4.5. Restrictions Enforceable in All Jurisdictions. If any court
holds this Section 6 (or any part hereof) is unenforceable by reason of its
breadth or scope or otherwise, it is the intention of the parties hereto that
such determination not bar or in any way affect the right of the Company to the
relief provided above in the courts of any other jurisdiction within the
geographic scope of this section.
6.5. Disclosure of Protective Provisions. Executive agrees to disclose
the existence and terms of Section 6.1 to any employer for whom Executive works
during the two year period following the Retirement Date.
SECTION 7. Non-Disparagement. The Company (meaning, solely for this purpose,
Company's directors and executive officers and other individuals authorized to
make official communications on Company's behalf) will not disparage Executive
or Executive's performance or otherwise take any action that could reasonably be
expected to adversely affect Executive's personal or professional reputation.
Similarly, Executive will not disparage the Company or any of its directors,
officers, agents or employees or otherwise take any action that could reasonably
be expected to adversely affect the reputation of the Company or the personal or
professional reputation of any of the Company's directors, officers, agents or
employees.
SECTION 8. Cooperation. Executive further agrees that, subject to reimbursement
of his reasonable expenses, he will cooperate fully with the Company and its
counsel with respect to any matter (including litigation, investigations, or
governmental proceedings) which relates to matters with which Executive was
involved during his employment with Company. Executive will render such
cooperation in a timely manner on reasonable notice from the Company.
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SECTION 9. Company Property.
9.1. Return of Company Property. Within ten days of the Retirement
Date, Executive will return to the Company all documents, materials and other
property of the Company in his possession or control, whether or not created by
him, including (without limitation) any contracts, memoranda, reports,
agreements, correspondence, notes, research, plans, photographs, books, data,
computer software, files and discs, and all copies thereof.
9.2. Confidentiality of Proprietary Information. Executive recognizes
and acknowledges that the proprietary, business and technical information and
trade secrets of the Company and its subsidiaries and affiliates (the
"Proprietary Information") are valuable, special and unique assets of the
Company and its subsidiaries and affiliates. Therefore, Executive will maintain
the confidentiality of the Proprietary Information and will not directly or
indirectly divulge to any third-party or use for his own benefit or for any
other purpose any of the Proprietary Information without the prior written
consent of the Company, except as may be required by law or in any judicial or
administrative proceeding.
SECTION 10. RESCISSION RIGHT. EXECUTIVE EXPRESSLY ACKNOWLEDGES AND RECITES THAT
(I) HE HAS READ AND UNDERSTANDS THIS AGREEMENT IN ITS ENTIRETY, (II) HE
UNDERSTANDS THE TERMS OF THIS AGREEMENT HAS ENTERED INTO THIS AGREEMENT
KNOWINGLY AND VOLUNTARILY, WITHOUT ANY DURESS OR COERCION; (III) HE HAS BEEN
ADVISED ORALLY AND IS HEREBY ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY WITH
RESPECT TO THIS AGREEMENT BEFORE SIGNING IT; (IV) HE WAS PROVIDED TWENTY-ONE
(21) CALENDAR DAYS AFTER RECEIPT OF THIS AGREEMENT TO CONSIDER ITS TERMS BEFORE
SIGNING IT; AND (V) HE IS PROVIDED SEVEN (7) CALENDAR DAYS FROM THE DATE OF
SIGNING TO TERMINATE AND REVOKE THIS AGREEMENT, IN WHICH CASE THIS AGREEMENT
WILL BE UNENFORCEABLE, NULL AND VOID. EXECUTIVE MAY REVOKE THIS AGREEMENT DURING
THOSE SEVEN (7) DAYS BY PROVIDING WRITTEN NOTICE OF REVOCATION TO THE COMPANY.
SECTION 11. Miscellaneous.
11.1. Payments Subject to Tax Withholding. All payments and transfers
of property described in this Agreement will be made net of applicable tax
withholding, in accordance with the ordinary payroll practices of the Company
then in effect.
11.2. No Admission of Liability. This Agreement is not to be construed
as an admission of any violation of any federal, state or local statute,
ordinance or regulation or of any duty owed by the Company to Executive or by
Executive of any duty owed to the Company. There have been no such violations,
and the Company and Executive specifically deny any such violations.
11.3. No Reinstatement. Executive agrees that he will not apply for
reinstatement with the Company or seek in any way to be reinstated, re-employed
or hired by the Company in the future.
11.4. Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the Company and Executive and their respective
successors, executors, administrators and heirs. Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise. The Company may assign this Agreement to any successor to all or
substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets, or otherwise.
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11.5. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. However, if any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
will not affect any other provision, and this Agreement will be reformed,
construed and enforced as though the invalid, illegal or unenforceable provision
had never been herein contained.
11.6. Entire Agreement; Amendments. Except as otherwise provided
herein, this Agreement contains the entire agreement and understanding of the
parties hereto relating to the subject matter hereof. Therefore, this Agreement
merges and supersedes all prior and contemporaneous discussions, agreements and
understandings of every nature relating to Executive's employment, compensation,
severance, termination or any related matter. This Agreement may not be changed
or modified, except by an Agreement in writing signed by both Executive and the
Company.
11.7. Governing Law. This Agreement will be governed by, and enforced
in accordance with, the laws of the Commonwealth of Pennsylvania, without regard
to the application of the principles of conflicts of laws.
11.8. Counterparts and Facsimiles. This Agreement may be executed,
including execution by facsimile signature, in one or more counterparts, each of
which will be deemed an original, and all of which together will be deemed to be
one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Executive has executed this
Agreement, in each case as of the date first above written.
SYSTEMS & COMPUTER TECHNOLOGY
CORPORATION
By: /s/ Xxxx Xxxxxxx
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Name & Title: Xxxx Xxxxxxx, XX VP
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XXXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxx
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