AGREEMENT
Exhibit 10.1
AGREEMENT
THIS AGREEMENT (the “Agreement”), by and between S1 Corporation (the “Company”) and Xxxxxx
Xxxxxx (“You” or “Your”) (collectively, the “Parties”), is entered into and effective as of
December 24, 2008 (the “Effective Date”).
WHEREAS, the Parties desire to enter into this Agreement to express the terms and conditions
in the event of Your termination of employment from the Company (or any of its affiliates) as
described herein;
NOW, THEREFORE, in consideration of the mutual agreements in this Agreement, the Parties agree
as follows:
1. Termination of Prior Agreement. Upon the execution of this Agreement, that certain
Employment Agreement dated as of December 18, 2006 by and between the Company and You (the “Prior
Agreement”) shall be terminated and of no further force or effect.
2. At-Will Employment/Compensation. This Agreement does not create a contract for
employment or a contract for benefits. Your employment with the Company shall be and remain at all
times an at-will relationship. This means that at either Your option or the Company’s option, Your
employment may be terminated at any time, with or without Cause, and with or without notice. While
You are employed by the Company (or any of its affiliates) (i) the Company shall pay You an annual
base salary at the rate of $415,000 per year (which base salary will be reviewed at least annually
and may be increased at the discretion of the Company), and (ii) You shall be eligible to receive
an annual on-target cash bonus of up to $260,000 for each calendar year (a “Bonus Calendar Year”)
occurring while You are employed by the Company (or any of its affiliates) (pro-rated for any
period that is less than 12 months), based on the attainment of specific Company and individual
performance targets during such Bonus Calendar Year as may be assigned by the Company annually.
Such annual bonus for a given Bonus Calendar Year shall be paid no later than March 15th
of the calendar year immediately following such Bonus Calendar Year.
3. Compensation Upon Termination. Subject to the terms and conditions of this
Agreement:
(a) Death. If Your employment with the Company (or any of its affiliates) is
terminated as a result of Your death, the Company shall pay Your estate, or as may be directed by
the legal representatives of Your estate, (i) Your base salary due through the date of termination,
and (ii) within thirty (30) days following Your date of termination, a pro rata portion of the
annual bonus that would have been payable to You for the calendar year of termination if Your
employment had not terminated (calculated based upon actual results through Your date of
termination and based upon budget for the remainder of the period and pro rated for the portion of
the year during which You were employed).
(b) Disability. If Your employment with the Company (or any of its affiliates) is
terminated as a result of You being substantially unable to perform the material duties of Your
then current position with the Company (or any of its affiliates) by reason of illness, physical or
mental disability or other similar incapacity, which inability shall continue for three consecutive
months (provided, that until such termination, You shall continue to receive Your then current
compensation and benefits, reduced by any benefits payable to You or under any disability insurance
policy or plan applicable You), the Company shall pay You (i) Your base salary due through the date
of termination, and (ii) within thirty (30) days following Your date of termination, a pro rata
portion of the annual bonus that would have been payable to You for the calendar year of
termination if Your employment had not terminated (calculated based upon actual results through
Your date of termination and based upon budget for the remainder of the period and pro rated for
the portion of the year during which You were employed); provided, that payments so made to
You with respect to any period that You are substantially unable to perform the material duties of
Your then current position with the Company (or any of its affiliates) by reason of illness,
physical or mental illness or other similar incapacity shall be reduced by the sum of the amounts,
if any, payable to You by reason of such disability, at or prior to the time of any such payment,
under any disability insurance policy or benefit plan and which amounts have not previously been
applied to reduce any such payment.
(c) Termination by the Company for Cause or by You without Good Reason. If the
Company (or any of its affiliates) terminates Your employment for Cause or You terminate Your
employment without Good Reason, the Company shall pay You Your base salary due through the date of termination
and shall have no further obligations to You. In the event the Company intends to terminate You
for Cause, You shall have a reasonable opportunity, together with Your counsel, to be heard before
the Board of Directors of the Company before such termination.
(d) Termination by the Company without Cause or by You with Good Reason. If (i) the
Company (or any of its affiliates) terminates your employment without Cause, or (ii) You terminate
Your employment for Good Reason, then the Company shall:
(A) pay You (i) in equal installments as of the 1st and 15th day of each
month during the 12-month period commencing on Your date of termination (the “Severance Period”),
an aggregate amount equal to Your then current base salary, (ii) within thirty (30) days following
Your date of termination, a pro rata portion of the annual bonus that would have been payable to
You for the calendar year of termination if Your employment had not terminated (calculated based
upon actual results through Your date of termination and based upon budget for the remainder of the
period and pro rated for the portion of the year during which You were employed), and (iii) within
thirty (30) days following Your date of termination, an aggregate amount equal to the average
annual bonus actually paid to You for the immediately prior three calendar years;
(B) reimburse You for any COBRA premiums You pay for You and any of Your dependents during the
Severance Period, if and to the extent You and/or Your dependents are entitled to COBRA
continuation coverage under the Company’s major medical group plan in which You and/or Your
dependents participated immediately prior to the date of termination, provided, however, that
notwithstanding anything in this subsection to the contrary, all other terms and provisions of the
Company major medical group plan governing Your rights and Your dependent’s rights under COBRA
shall apply; and
(C) shall cause all outstanding shares of restricted stock and options then held by You to
purchase stock of the Company to be: (A) fully vested and exercisable if such termination occurs
within two years after a Change in Control (or before a Change in Control has occurred, but after
the Company has commenced negotiations of a transaction that results in a Change in Control) or (B)
if (A) does not apply, vested and exercisable to the same extent that such options and restricted
stock would have been vested and exercisable if You had continued to be employed by the Company
during the 24 months immediately following the date of termination.
4. Change in Control. If a Change in Control occurs while You are employed by the
Company and You hold one or more outstanding options to purchase stock or shares of restricted
stock of the Company that do not, by the terms of such options or restricted stock, become fully
vested and exercisable as a result of the Change in Control, with respect to the shares as to which
each such option and restricted stock grant is not vested and exercisable as of the date of the
Change in Control (the “Unvested Shares”), the Company shall cause each such option and restricted
stock grant to become vested and exercisable as follows: (1) as of the date of the Change in
Control (the “Change Date”), such option and restricted stock grant shall become vested and
exercisable to the extent of (A) two-thirds of the Unvested Shares multiplied by (B) a fraction,
the numerator of which is the number of full calendar months between (i) the date on which the most
recent incremental increase in the number of shares as to which such option and restricted stock
grant is vested and exercisable occurred pursuant to the terms of such grant as a result of Your
continued employment or service (the “Most Recent Vesting Date”) and (ii) the Change Date, and the
denominator of which is the number of full calendar months between the Most Recent Vesting Date and
the date on which such option and restricted stock grant would have become fully vested and
exercisable as a result of Your continued employment by the Company, assuming such employment
continued (the “Remaining Vesting Term”); (2) as of the end of each full calendar month commencing
on or after the date of the Change in Control, so long as the continuous employment of You by the
Company has not ended, such option and restricted stock grant shall become vested and exercisable
to the extent of two-thirds of the Unvested Shares divided by the number of full calendar months in
the Remaining Vesting Term, and (3) as to the remainder of the Unvested Shares, the terms of such
option and restricted stock grant as in effect before the Change in Control shall continue to
apply.
5. Release Obligations. The Company’s obligation to pay You the separation payments
set forth in Section 3(d) shall be conditioned upon Your execution, compliance with, and
non-revocation of, a valid, binding and irrevocable Separation & Release Agreement in a form
prepared by the Company in its sole and absolute discretion, which includes, but is not limited to,
Your release of the Company and its officers, directors, employees,
stockholders and affiliates from any and all liability and claims of any kind and Your
confirmation of the Company’s right to continued performance by You of Your obligations under the
Covenants Agreement (defined below) during the period following the termination of Your employment.
6. Withholding. All payments made pursuant to this Agreement will be subject to
applicable withholdings, including taxes and Social Security.
7. Definitions.
(a) “Cause” means (i) the conviction of a felony or a crime involving moral turpitude
(excluding a traffic violation not involving any period of incarceration) or the willful commission
of any other act or omission involving dishonesty or fraud with respect to, and materially
adversely affecting the business affairs of, the Company or any of its subsidiaries or any of their
customers or suppliers, (ii) conduct tending to bring the Company or any of its subsidiaries into
substantial public disgrace or disrepute that causes substantial and material injury to the
business and operations of the Company or such subsidiary, (iii) substantial and repeated failure
to perform duties of the office held by You as reasonably directed by the Company (other than any
such failure resulting from Your incapacity due to injury or illness), and such failure is not
cured within 30 days after You receive written notice thereof from the Company that specifically
identifies the manner in which the Company believes You have not substantially performed Your
duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its
subsidiaries that causes substantial and material injury to the business and operations of the
Company or such subsidiary or (v) any material breach of the Covenants Agreement. For purposes of
this provision, no act or failure to act on Your part shall be considered “willful” unless it is
done, or omitted to be done, by You in bad faith or without reasonable belief that Your action or
omission was in the best interests of the Company. Any act or failure to act based upon authority
given pursuant to a resolution duly adopted by the Board of Directors of the Company or based upon
advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done,
by You in good faith and in the best interests of the Company;
(b) “Change in Control” means the earliest to occur of the following: (i) any person
(other than a corporation (a “Holding Company”) all of the common stock of which is owned,
immediately after the transaction, by persons who owned more than 50 percent of the voting shares
of the Company immediately before the transaction) becomes the beneficial owner of 50 percent or
more of the total number of voting shares of the Company; (ii) any person (other than the persons
named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to
the election or removal of two or more directors of the Company, for more than 50 percent of the
total number of voting shares of the Company; (iii) any person (other than a Holding Company) has
commenced a tender or exchange offer, or entered into an agreement or received an option, to
acquire beneficial ownership of more than 50 percent of the total number of voting shares of the
Company; (iv) there is a sale or other transfer of all or substantially all of the assets of the
Company other than to a Holding Company or a corporation controlled by the Company, or (v) as the
result of, or in connection with, any cash tender or exchange offer, merger, or other business
combination, sale of assets or contested election, or any combination of the foregoing
transactions, the persons who were directors of the Company before such transaction shall cease to
constitute at least a majority of the Board of any successor corporation. In the event that the
Company (or any successor entity) becomes a subsidiary of a Holding Company, references to the
Company in the preceding sentence shall be deemed to be references to the Holding Company.
Notwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under
clauses (ii) or (iii) above if within 30 days of such action, the Board of Directors of the Company
(by a two-thirds affirmative vote of the directors in office before such action occurred) makes a
determination that such action does not and is not likely to constitute a change in control of the
Company. For purposes of this definition, a “person” includes an individual, corporation,
partnership, trust, association, joint venture, pool, syndicate, unincorporated organization,
joint-stock company, or similar organization or group acting in concert. A person for these
purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended;
(c) “Code” means the Internal Revenue Code of 1986, as amended;
(d) “Controlled Group” means the Company and any other entity the employees of which
would be required to be aggregated with the employees of the Company pursuant to Code §414(b), (c),
(m), or (o);
(e) “Good Reason” shall exist if (i) the Company, without Your written consent (a)
materially reduces the scope of Your duties (including, without limitation, any merger,
consolidation, reorganization, sale of stock or assets or other transaction that results in You
reporting to anyone in a position having less authority than the person to whom You reported
immediately before such transaction, or any failure of the parent corporation of any controlled
group of corporations that includes the Company, if the Company is not such parent corporation, to
offer You a position with such parent corporation involving the same or substantially equivalent
duties as Your then current position with the Company), or (b) requires You to relocate to a place
more than 50 miles from Norcross, Georgia to perform Your duties; (ii) You provide written notice
to the Company of such action and provide the Company with 30 days to remedy such action (the “Cure
Period”); (iii) the Company fails to remedy such action within the Cure Period; and (iv) You elect
to resign within 30 days of the expiration of the Cure Period;
(f) “Separation from Service” means, with respect to You, a “separation from service”
(within the meaning of Code §409A(a)(2)(A)(i) and regulations issued thereunder) of You from all
members of the Controlled Group; and
(g) “Specified Employee” means a “key employee” (within the meaning of Code §416(i)
without regard to Code §416(i)(5) thereof) of any member of the Controlled Group which has stock
which has publicly traded on an established securities market or otherwise. You shall be treated
as being a Specified Employee as of any date occurring during the period beginning April 1 of a
given calendar year and ending on the next following March 31 if You meet the definition of a
Specified Employee in the preceding sentence at any time during the calendar year immediately
preceding such given calendar year.
8. Deferral of Compensation. Notwithstanding any provision of this Agreement to the
contrary, to the extent that (i) any amount(s) would be payable to You under Section 3(a), (b), (c)
or (d) above by reason of Your termination of employment, and (ii) such amount(s) constitute a
“deferral of compensation” within the meaning of Treasury regulations issued under Code §409A as
reasonably determined by the Company, then such amount(s) shall not be paid until You have incurred
a Separation from Service if such termination of employment does not constitute a Separation from
Service. Furthermore, to the extent that (i) any amount(s) would be payable to You within the
first six (6) months following Your Separation from Service on account of Your Separation from
Service, (ii) You are a Specified Employee as of the date of Your Separation from Service, and
(iii) such amount(s) constitute a “deferral of compensation” within the meaning of Treasury
regulations issued under Code §409A as reasonably determined by the Company, then such amount(s)
shall not be paid and shall instead be held and accumulated and paid as of the date which is six
(6) months and one (1) day after the date of Your Separation from Service. Any amounts paid which
are excepted from being a “deferral of compensation” shall not be subject to the foregoing
restrictions. For all purposes of this Agreement, the right to a series of installment payments
shall be treated as a right to a series of separate payments for purposes of Code §409A.
9. Limitation on Parachute Payments. Notwithstanding any other provision of this
Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered
into by You with the Company or any subsidiary or affiliate, except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes application of this
Section (an “Other Agreement”), and notwithstanding any formal or informal plan or other
arrangement for the direct or indirect provision of compensation to You (including groups or
classes of participants or beneficiaries of which You are a member), whether or not such
compensation is deferred, is in cash, or is in the form of a benefit to or for You (a “Benefit
Arrangement”), if You are a “disqualified individual,” as defined in Section 280G(c) of the Code,
no payment or benefit shall be made or provided to You or become vested, exercisable or payable, as
applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit,
taking into account all other payments, rights, or benefits to or for You, or becoming vested,
exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all
Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to
which You are or would be entitled under this Agreement to be considered a “parachute payment”
within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”)
and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts
received by You under this Agreement, all Other Agreements, and all Benefit Arrangements would be
less than the maximum after-tax amount that could be received by You without causing any such
payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the
event that the receipt of any such payment, right to exercise, vesting, or other benefit under this
Agreement, in conjunction with all
other rights, payments, or benefits to or for You under any Other Agreement or any Benefit
Arrangement would cause You to be considered to have received a Parachute Payment under this
Agreement that would have the effect of decreasing the after-tax amount received by You as
described in clause (ii) of the preceding sentence, then You shall have the right, in Your sole
discretion, to designate those rights, payments or benefits (or the vesting or exercisability
thereof) under this Agreement, any Other Agreements and any Benefit Arrangements that should be
reduced or eliminated so as to avoid having the right, payment or benefit to You (or the vesting or
exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All
determinations required to be made under this Section, including whether and when a reduction in
rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount
of such reduction and the assumptions to be utilized in arriving at such determination, shall be
made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably
acceptable to the Company as may be designated by You in writing (the “Accounting Firm”) which
shall provide detailed supporting calculations both to the Company and You within 15 business days
of the receipt of notice from You or the Company. In the event that the Accounting Firm is serving
as accountant or auditor for the Company or any individual, entity or group effecting a change in
the ownership or effective control of the Company (within the meaning of Section 280G of the Code),
You shall appoint another nationally recognized accounting firm that is reasonably acceptable to
the Company to make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the
Company and You.
10. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties concerning the subject matter of this Agreement and supersedes any prior communications,
agreements or understandings, whether oral or written, between You and the Company relating to
severance payments of any type or nature, including without limitation, the Prior Agreement. Other
than the terms of this Agreement, no other representation, promise or agreement has been made with
You to cause You to sign this Agreement.
11. Confidentiality, Non-Disclosure and Non-Solicitation Agreement. By execution of
this Agreement, the Parties acknowledge the continuing validity and effectiveness of the
Confidentiality, Non-Disclosure and Non-Solicitation Agreement (the “Covenants Agreement”) entered
into concurrently with the execution of the Prior Agreement.
12. Governing Law, Jurisdiction and Venue. The laws of the State of Georgia will
govern this Agreement. If Georgia’s conflict of law rules would apply another state’s laws, the
Parties agree that Georgia law will still govern. You agree that any claim arising out of or
relating to this Agreement will be brought in a state or federal court of competent jurisdiction in
Georgia. You consent to the personal jurisdiction of the state and/or federal courts located in
Georgia. You waive (i) any objection to jurisdiction or venue, or (ii) any defense claiming lack
of jurisdiction or improper venue, in any action brought in such courts.
13. Waiver. The Company’s failure to enforce any provision of this Agreement will not
act as a waiver of that or any other provision. The Company’s waiver of any breach of this
Agreement will not act as a waiver of any other breach.
14. Severability. The provisions of this Agreement are severable. If any provision
is determined to be invalid, illegal, or unenforceable, in whole or in part, the remaining
provisions and any partially enforceable provisions will remain in full force and effect.
15. Amendments. This Agreement may not be amended or modified except in writing
signed by both Parties.
16. Successors and Assigns. This Agreement will be assignable to, and will inure to
the benefit of, the Company’s successors and assigns, including, without limitation, successors
through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets,
and will be binding upon You and Your heirs and assigns.
[Signatures Appear on Following Page]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
| S1 CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | SVP, Chief Legal Officer and Secretary | |||
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx | ||||
