EMPLOYMENT AGREEMENT
Exhibit 10.35
This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into, by and between SunGard
Data Systems (along with its parents and affiliates, the “Company”) and Xxxxx Xxxxxxx
(“Executive”) as of December 29, 2009 (the “Effective Date”).
WHEREAS, the parties desire to enter into an agreement to reflect Executive’s position and
role in the Company’s business and to provide for Executive’s employment by the Company, upon the
terms and conditions set forth herein.
WHEREAS, Executive has agreed to certain confidentiality, non-competition and non-solicitation
covenants contained hereunder, in consideration of the benefits provided to Executive under this
Agreement.
WHEREAS, certain capitalized terms shall have the meanings given those terms in Section 3 of
this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Employment. The Company hereby agrees to continue to employ Executive,
and Executive hereby accepts such continued employment and agrees to perform Executive’s duties and
responsibilities, in accordance with the terms, conditions and provisions hereinafter set forth.
1.1 Employment Term. This Agreement shall be effective as of the Effective
Date, and shall continue until December 31, 2011, unless the Agreement is terminated sooner in
accordance with Section 2 below. In addition, the term of the Agreement shall automatically renew
for periods of one year unless the Company gives written notice to the Executive, at least 60 days
prior to the end of the initial term or at least 60 days prior to the end of any one-year renewal
period, that the Agreement shall be terminated. The period commencing on the Effective Date and
ending on the date on which the term of Executive’s employment under the Agreement shall terminate
is hereinafter referred to as the “Employment Term.” The failure of the Company to renew
this Agreement shall not be considered a termination of Executive’s employment under this
Agreement.
1.2 Extent of Service. During the Employment Term, Executive agrees to use
Executive’s full and best efforts to carry out Executive’s duties and responsibilities as defined
by Executive’s supervisor with the highest degree of loyalty and the highest standards of care and,
consistent with the other provisions of this Agreement, Executive agrees to devote substantially
all of Executive’s business time, attention and energy thereto. The foregoing shall not be
construed as preventing Executive from making investments in other businesses or enterprises,
provided that Executive agrees not to become engaged in any other business activity which, in the
reasonable judgment of the Executive’s supervisor, is likely to interfere with Executive’s ability
to discharge Executive’s duties and responsibilities to the Company. The Executive will not serve
on the board of directors of an entity unrelated to the Company without the consent of the
Executive’s supervisor and the Chief Compliance Officer as detailed in the SunGard Global Business
Conduct and Compliance Program.
1.3 Base Salary. During the Employment Term, for all the services rendered
by Executive hereunder, the Company shall pay Executive a base salary (“Base Salary”), at
the annual rate in effect on the date of this Agreement, payable in installments at such times as
the Company customarily pays its other employees. Base Salary may be decreased as part of an
overall Company reduction of compensation.
1.4 Retirement, Welfare and Other Benefit Plans and Programs. During the
Employment Term, Executive shall be entitled to participate in all employee retirement and welfare
benefit plans and programs made available to the Company’s executives as a group, as such
retirement and welfare plans may be in effect from time to time and subject to the eligibility
requirements of such plans. During the Employment Term, Executive shall be entitled to vacation
and sick leave in accordance with the Company’s vacation, holiday and other pay for time not worked
policies. Nothing in this Agreement or otherwise shall prevent the Company from amending or
terminating any retirement, welfare or other employee benefit plans, programs, policies or
perquisites from time to time as the Company deems appropriate.
1.5 Reimbursement of Expenses. During the Employment Term, Executive shall
be provided with reimbursement of reasonable expenses related to Executive’s employment by the
Company on a basis no less favorable than that which may be authorized from time to time for
executives as a group.
1.6 Incentive Compensation. During the Employment Term, Executive may be
entitled to participate in all short-term and long-term incentive programs established by the
Company for its executives, at such levels as the Executive’s supervisor determines. Executive’s
incentive compensation shall be subject to the terms of the applicable plans and shall be
determined based on Executive’s individual performance and Company performance as determined by the
Executive’s supervisor and no minimum incentive is guaranteed.
2. Termination. Executive’s employment shall terminate upon the occurrence
of any of the following events:
2.1 Termination Without Cause. The Company may terminate Executive’s
employment with the Company at any time without Cause (as defined in Section 3) (in which case the
Employment Term shall be deemed to have ended) upon not less than 60 days’ prior written notice to
Executive pursuant to Section 11.
2.2 Benefits Payable Upon Termination Without Cause.
(a) In the event of a termination of Executive as described in Section 2.1 during
the Employment Term, if Executive executes and does not revoke a Release (as defined in Section 3),
Executive shall be entitled to receive the following severance benefits:
(i) Executive shall receive a lump sum cash payment equal to 75% (seventy-five
percent) of Executive’s annual Base Salary.
(ii) To the extent Executive has a Target Incentive Bonus for the year of
termination, 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
nine (9) month period following the Termination time. 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
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coverage as in effect at Executive’s termination date. 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.
(b) Payment of the lump sum benefits described in subsection (a) above shall be made
within 60 days after Executive’s Termination Date, subject to Executive’s delivery of an effective
Release.
2.3 Retirement or Other Voluntary Termination. Executive may voluntarily
terminate employment for any reason, including voluntary retirement, upon 60 days’ prior written
notice pursuant to Section 11. In such event, after the effective date of such termination, no
further payments shall be due under this Agreement. However, Executive shall receive any amounts
earned, accrued or owing but not yet paid under Section 1 above and shall be entitled to any
benefits due in accordance with the terms of any applicable benefit plans and programs of the
Company.
2.4 Disability. The Company may terminate Executive’s employment if
Executive has been unable to perform the essential functions of Executive’s position with the
Company, with or without reasonable accommodation, by reason of physical or mental incapacity for a
period of six consecutive months (“Disability”). Executive agrees, in the event of a
dispute under this Section 2.4 relating to Executive’s Disability, to submit to a physical
examination by a licensed physician selected by the Executive’s supervisor. If Executive’s
employment terminates on account of Disability, no further payments shall be due under this
Agreement. However, Executive shall be entitled to (i) any amounts earned, accrued or owing but
not yet paid under Section 1 above and any benefits due in accordance with the terms of any
applicable benefit plans and programs of the Company and (ii) a pro rated bonus for the year in
which Executive’s Disability occurs, which bonus shall be calculated and paid according to Section
2.2(a)(ii) above.
2.5 Death. If Executive dies while employed by the Company, the Company
shall pay to Executive’s executor, legal representative, administrator or designated beneficiary,
as applicable, (i) any amounts earned, accrued or owing but not yet paid under Section 1 above and
any benefits accrued or earned under the Company’s benefit plans and programs according to the
terms of such plans and (ii) a pro rated bonus for the year in which Executive’s death occurs,
which bonus shall be calculated and paid according to Section 2.2(a)(ii) above. Otherwise, the
Company shall have no further liability or obligation under this Agreement to Executive’s
executors, legal representatives, administrators, heirs or assigns.
2.6 Cause. The Company or the Executive’s supervisor may terminate
Executive’s employment at any time for Cause upon written notice to Executive, in which event all
payments under this Agreement shall cease, except for Base Salary to the extent already accrued.
Executive shall be entitled to any benefits accrued or earned before Executive’s termination in
accordance with the terms of any applicable benefit plans and programs of the Company; provided
that Executive shall not be entitled to receive any unpaid short-term or long-term cash incentive
payments or unvested options.
3. Definitions. For purposes of this Agreement, the following terms shall
have the meanings specified in this Section 3:
(a) “Affiliate” shall mean any direct or indirect subsidiary or parent of
SunGard Data Systems Inc., and any other entity that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with SunGard Data Systems
Inc.
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(b) “Cause” shall mean any of the following grounds for termination of
Executive’s employment:
(i) Executive is convicted of (or pleads guilty or nolo contendre to) a felony;
(ii) Executive neglects, refuses or fails to perform his or her material duties to
the Company (other than a failure resulting from Executive’s incapacity due to physical or mental
illness), which failure has continued for a period of at least 30 days after a written notice of
demand for substantial performance, signed by a duly authorized officer of the Company, has been
delivered to Executive specifying the manner in which Executive has failed substantially to perform
unless such remedial action would not have been meaningful under the circumstances;
(iii) Executive commits an act of dishonesty or breach of trust or otherwise engages
in misconduct in the performance of Executive’s duties;
(iv) Executive engages in public conduct that is harmful to the reputation of the
Company;
(v) Executive breaches any written non-competition, non-disclosure or
non-solicitation agreement, or any other agreement in effect with the Company or SunGard, including
without limitation the provisions of Section 5 of this Agreement; or
(vi) Executive breaches the Company’s written code of business conduct and ethics,
including the Global Business Conduct and Compliance Program.
(c) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(d) “Release” means a release substantially in the form of Exhibit
A attached to this Agreement, which may be subsequently modified only based on recommendations
of the Company’s counsel to reflect changes in applicable law after the date of this Agreement.
(e) “Termination Date” shall mean the effective date of the termination of
Executive’s employment relationship with the Company pursuant to this Agreement.
4. Notice of Termination. Any termination of Executive’s employment shall
be communicated by a written notice of termination to the other party hereto given in accordance
with Section 11. The notice of termination shall (i) indicate the specific termination provision
in this Agreement relied upon, (ii) briefly summarize the facts and circumstances deemed to provide
a basis for a termination of employment if for Cause, and (iii) specify the Termination Date in
accordance with the requirements of this Agreement.
5. Restrictive Covenants.
5.1 Non-Disclosure. At all times during the Employment Term and continuing
at all times after Executive’s Termination Date, and except as required by applicable law or in a
judicial or administrative proceeding, Executive shall not disclose to anyone outside the Company,
or use for the benefit of anyone other than the Company, any confidential or proprietary
information relating to business of the Company, whether acquired by Executive before, during or
after employment with the Company. Executive acknowledges that the proprietary and confidential
information of the Company includes, by way of example: (a) the identity of customers and
prospects, their specific requirements, and
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the names, addresses and telephone numbers of individual contacts; (b) prices, renewal dates
and other detailed terms of customer and supplier contracts and proposals; (c) pricing policies,
information about costs, profits and sales, methods of delivering software and services, marketing
and sales strategies, and software and service development strategies; (d) source code, object
code, specifications, user manuals, technical manuals and other documentation for software
products; (e) screen designs, report designs and other designs, concepts and visual expressions for
software products; (f) employment and payroll records; (g) forecasts, budgets, acquisition models
and other non public financial information; and (h) expansion plans, business or development plans,
management policies, information about possible acquisitions or divestitures, potential new
products, markets or market extensions, and other business and acquisition strategies and policies.
The provisions of this Section 5.1 shall survive any termination or expiration of this Agreement.
5.2 Works and Ideas. Executive shall promptly communicate to the Company,
in writing, all marketing strategies, product ideas, software designs and concepts, software
enhancement and improvement ideas, and other ideas and inventions (collectively, “Works and
Ideas”) pertaining to the business of the Company in any material respect, whether or not
patentable or copyrightable, that are made, written, developed or conceived by Executive, alone or
with others, at any time (during or after business hours) while Executive is employed by the
Company (including at any time prior to the date of this Agreement) or during the three months
after Executive’s Termination Date. Executive acknowledges that all of those Works and Ideas will
be the exclusive property of the Company, and hereby assigns and agrees to assign all of
Executive’s right, title and interest in those Works and Ideas to the Company. Executive shall
sign all documents that the Company reasonably requests to confirm its ownership of those Works and
Ideas, and shall reasonably cooperate with the Company, at the Company’s expense, to allow the
Company to take full advantage of those Works and Ideas.
5.3 Non-Competition and Non-Solicitation. During the Employment Term and
within one year after Executive’s termination of employment with the Company for any reason,
whether or not payments are being made under this Agreement, Executive shall not, directly or
indirectly, (a) render any material services for any organization, or engage in any business, that
competes in any material respect with the business of the Company, or (b) solicit or contact, for
the purpose or with the effect of competing or interfering with the business of the Company (i) any
customer or acquisition target under contract with the Company at any time during the last two
years of Executive’s employment with the Company, (ii) any prospective customer or acquisition
target that received or requested a proposal, offer or letter of intent from the Company at any
time during the last two years of Executive’s employment with the Company, (iii) any affiliate of
any such customer or prospect, (iv) any of the individual contacts at customers or acquisition
targets established by the Company, Executive or others at the Company during the period of
Executive’s employment with the Company, or (v) any individual who is an employee or independent
contractor of the Company at the time of the solicitation or contact or who was an employee or
independent contractor of the Company within three months before such time unless Executive
receives prior written permission from the Executive’s supervisor.
6. Equitable Relief.
(a) Executive acknowledges and agrees that the restrictions contained in Section 5
are reasonable and necessary to protect and preserve the legitimate interests, properties, goodwill
and business of the Company, that the Company would not have entered into this Agreement in the
absence of such restrictions and that irreparable injury will be suffered by the Company should
Executive breach any of the provisions of that Section. Executive represents and acknowledges that
(i) Executive has been advised by the Company to consult Executive’s own legal counsel in respect
of this Agreement, and (ii) Executive has had full opportunity, prior to execution of this
Agreement, to review thoroughly this Agreement with Executive’s counsel.
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(b) Executive further acknowledges and agrees that a breach of any of the
restrictions in Section 5 cannot be adequately compensated by monetary damages. Executive agrees
that the Company shall be entitled to preliminary and permanent injunctive relief, without the
necessity of proving actual damages, as well as an equitable accounting of all earnings, profits
and other benefits arising from any violation of Section 5 hereof, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may be entitled. In the event
that any of the provisions of Section 5 should ever be adjudicated to exceed the time, geographic,
service, or other limitations permitted by applicable law in any jurisdiction, it is the intention
of the parties that the provision shall be amended to the extent of the maximum time, geographic,
service, or other limitations permitted by applicable law, that such amendment shall apply only
within the jurisdiction of the court that made such adjudication and that the provision otherwise
be enforced to the maximum extent permitted by law.
(c) Notwithstanding anything in this Agreement to the contrary, if Executive
breaches any of Executive’s obligations under Section 5, the Company shall thereafter be obligated
only for the compensation and other benefits provided in any Company benefit plans, policies or
practices then applicable to Executive in accordance with the terms thereof, and all payments under
Section 2 of this Agreement shall cease.
(d) Executive irrevocably and unconditionally (i) agrees that any suit, action or
other legal proceeding arising out of Section 5, including without limitation, any action commenced
by the Company for preliminary and permanent injunctive relief and other equitable relief, may be
brought in a United States District Court for Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Xxxxxxx
County, Pennsylvania, (ii) consents to the non-exclusive jurisdiction of any such court in any such
suit, action or proceeding, and (iii) waives any objection which Executive may have to the laying
of venue of any such suit, action or proceeding in any such court. Executive also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or other papers in a
manner permitted by the notice provisions of Section 11 hereof.
7. Dispute Resolution. In the event of any dispute relating to Executive’s
employment, the termination thereof, or this Agreement, other than a dispute in which the primary
relief sought is an equitable remedy such as an injunction, the parties shall be required to have
the dispute, controversy or claim settled by alternative dispute resolution conducted by JAMS (or,
if JAMS is not available, another mutually agreeable alternative dispute resolution organization),
in the city of Executive’s principal place of employment. Any award entered by JAMS (or such other
organization) shall be final, binding and nonappealable, and judgment may be entered thereon by
either party in accordance with applicable law in any court of competent jurisdiction. This
Section 7 shall be specifically enforceable. JAMS (or such other organization) shall have no
authority to modify any provision of this Agreement. In the event of a dispute, each party shall
be responsible for its own expenses (including attorneys’ fees) relating to the conduct of the
arbitration, and the parties shall share equally the fees of JAMS. THE PARTIES IRREVOCABLY WAIVE
ANY RIGHT TO TRIAL BY JURY AS TO ALL CLAIMS HEREUNDER.
8. Non-Exclusivity of Rights; Resignation from Boards.
(a) Nothing in this Agreement shall prevent or limit Executive’s continuing or
future participation in or rights under any benefit, bonus, incentive or other plan or program
provided by the Company and for which Executive may qualify; provided, however, that if Executive
becomes entitled to and receives the payments described in Section 2.2(a) of this Agreement,
Executive hereby waives Executive’s right to receive payments under any severance plan or similar
program applicable to employees of the Company.
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(b) If Executive’s employment with the Company terminates for any reason, Executive
shall immediately resign from all boards of directors of the Company, any Affiliates and any other
entities for which Executive serves as a representative of the Company.
9. Survivorship. The respective rights and obligations of the parties under
this Agreement (including without limitation Sections 5, 6 and 7) shall survive any termination of
Executive’s employment or termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
10. Mitigation. Executive shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other employment or otherwise, and
there shall be no offset against amounts due Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that Executive may obtain.
11. Notices. All notices and other communications required or permitted
under this Agreement or necessary or convenient in connection herewith shall be in writing and
shall be deemed to have been given when hand delivered or mailed by registered or certified mail,
as follows (provided that notice of change of address shall be deemed given only when received):
If to the Company and SunGard, to:
SunGard Data Systems Inc.
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: General Counsel
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: General Counsel
If to Executive, to:
Xxxxx Xxxxxxx
or to such other names or addresses as the Company or Executive, as the case may be, shall
designate by notice to each other person entitled to receive notices in the manner specified in
this Section.
12. Contents of Agreement; Amendment and Assignment.
(a) This Agreement sets forth the entire understanding between the parties hereto
with respect to the subject matter hereof and supersedes any and all documents otherwise relating
the subject matter hereof, and cannot be changed, modified, extended or terminated except upon
written amendment approved by the Executive’s supervisor and executed on behalf of the Company by a
duly authorized officer of the Company and by Executive.
(b) All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, executors, administrators,
legal representatives, successors and assigns of the parties hereto, except that the duties and
responsibilities of Executive under this Agreement are of a personal nature and shall not be
assignable or delegatable in whole or in part by Executive. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business or assets of the Company, within 15 days of
such succession, expressly to assume and agree to perform this Agreement in
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the same manner and to the same extent as the Company would be required to perform if no such
succession had taken place.
13. Severability. If any provision of this Agreement or application thereof
to anyone or under any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other provision or
application of this Agreement which can be given effect without the invalid or unenforceable
provision or application and shall not invalidate or render unenforceable such provision or
application in any other jurisdiction. If any provision is held void, invalid or unenforceable
with respect to particular circumstances, it shall nevertheless remain in full force and effect in
all other circumstances.
14. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
this Agreement is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy given under this Agreement or now
or hereafter existing at law or in equity. No delay or omission by a party in exercising any
right, remedy or power under this Agreement or existing at law or in equity shall be construed as a
waiver thereof, and any such right, remedy or power may be exercised by such party from time to
time and as often as may be deemed expedient or necessary by such party in its sole discretion.
15. Beneficiaries/References. Executive shall be entitled, to the extent
permitted under any applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable under this Agreement following Executive’s death by giving the
Company written notice thereof. In the event of Executive’s death or a judicial determination of
Executive’s incompetence, reference in this Agreement to Executive shall be deemed, where
appropriate, to refer to Executive’s beneficiary, estate or other legal representative.
16. Miscellaneous. All section headings used in this Agreement are for
convenience only. This Agreement may be executed in counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or
account for any of the other counterparts.
17. Withholding Taxes. All payments under this Agreement shall be made
subject to applicable tax withholding, and the Company shall withhold from any payments under this
Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any
law or governmental rule or regulation. Except as specifically provided otherwise in this
Agreement, Executive shall be responsible for all taxes applicable to amounts payable under this
Agreement.
18. Section 409A of the Code; Section 162(m) of the Code.
(a) This Agreement is intended to comply with Section 409A of the Code and its
corresponding regulations, to the extent applicable. The payment of severance benefits under the
Agreement are intended to be exempt from section 409A under the “short term deferral” exemption, to
the extent applicable. Notwithstanding anything in this Agreement to the contrary, payments may
only be made under this Agreement upon an event and in a manner permitted by Section 409A of the
Code, to the extent applicable. As used in the Agreement, the term “termination of employment”
shall mean Executive’s separation from service with the Company within the meaning of Section 409A
of the Code and the regulations promulgated thereunder. In no event may Executive, directly or
indirectly, designate the calendar year of a payment. For purposes of Section 409A, the right to
a series of payments under the Agreement shall be treated as a right to a series of separate
payments.
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(b) Notwithstanding anything in this Agreement to the contrary, if the stock of the
Company becomes publicly traded, if Executive is considered a “specified employee” under section
409A and if payment of any amounts under this Agreement is required to be delayed for a period of
six months after separation from service in order to avoid taxation under section 409A of the Code,
payment of such amounts shall be delayed as required by section 409A, and the accumulated amounts
shall be paid in a lump sum payment within five business days after the end of the six-month
period. If Executive dies during the postponement period prior to the payment of benefits, the
amounts withheld on account of section 409A shall be paid to the personal representative of
Executive’s estate within 60 days after the date of Executive’s death.
(c) Executive agrees that if the stock of the Company becomes publicly traded,
Executive will make any amendments to the Agreement that the Company deems necessary to allow
performance-based compensation to qualify for the “qualified performance-based compensation”
exception to section 162(m) of the Code.
19. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the Commonwealth of Pennsylvania without giving effect to any conflict of laws
provisions.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this
Agreement as of the Effective Date.
| SUNGARD DATA SYSTEMS INC. |
||||
| Date: 12/29/09 | By: | /s/ Xxxxxxxx Xxxxxx | ||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | SVP-Legal and General Counsel | |||
| Date: 12/29/09 | /s/ Xxxxx Xxxxxxx | |||
| Executive | ||||
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EXHIBIT A
EXECUTIVE RELEASE TO BE PROVIDED TO THE COMPANY
EXECUTIVE RELEASE TO BE PROVIDED TO THE COMPANY
Separation of Employment Agreement and General Release
THIS SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made
as of this ___day of , ___, by and between (“Executive”) and SunGard
(the “Company”).
WHEREAS, Executive is employed by the Company as ;
WHEREAS, Executive and the Company entered into an Employment Agreement, dated ,
200_, (the “Employment Agreement”) which provides for certain benefits in the event that
Executive’s employment is terminated on account of a reason set forth in the Employment Agreement;
WHEREAS, Executive’s employment with the Company will terminate effective
(the “Termination Date”); and
WHEREAS, in connection with the termination of Executive’s employment, the parties have agreed
to a separation package and the resolution of any and all disputes between them.
NOW, THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as follows:
1. Executive, for and in consideration of the commitments of the Company as set forth in
paragraph 6 of this Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND
FOREVER DISCHARGE the Company, its stockholders, affiliates, subsidiaries and parents, their
respective officers, directors, investors, employees, and agents, and their respective successors
and assigns, heirs, executors, and administrators (collectively, “Releasees”) from all
causes of action, suits, debts, claims and demands whatsoever in law or in equity, which Executive
ever had, now has, or hereafter may have, whether known or unknown, or which Executive’s heirs,
executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the
beginning of time to the date of this Agreement, to the extent arising from or relating in any way
to Executive’s employment relationship with the Company, the terms and conditions of that
employment relationship, and/or the termination of that employment relationship, including, but not
limited to, any claims arising under the Age Discrimination in Employment Act (“ADEA”), the Older
Workers Benefit Protection Act (“OWBPA”), Title VII of The Civil Rights Act of 1964, the Americans
with Disabilities Act, the Family and Medical Leave Act of 1993, the Employee Retirement Income
Security Act of 1974, as amended, any applicable state fair employment practice laws, and any other
claims under any federal, state or local common law, statutory, or regulatory provision, now or
hereafter recognized, and any claims for attorneys’ fees and costs; provided, however, the
foregoing shall in no event apply to (i) enforcement by Executive of Executive’s rights under this
Agreement, (ii) Executive’s rights as a stockholder in the Company or any of its affiliates, (iii)
Executive’s rights to indemnifications under any separate contract or insurance policy, (iv)
Executive’s right to seek unemployment insurance benefits, (v) Executive’s right to seek workers’
compensation benefits, or (vi) any claims that, as a matter of applicable law, are not waivable.
This Agreement is effective without regard to the legal nature of the claims raised and without
regard to whether any such claims are based upon tort, equity, implied or express contract or
discrimination of any sort.
A-1
2. Executive specifically releases the Releasees from any claims that Executive might have
under the ADEA and any rights under the OWBPA; provided however, Executive is not waiving or
releasing any rights Executive may have to challenge the knowing and voluntary nature of the
release of ADEA claims pursuant to the OWBPA. Nothing in this Agreement shall be construed to
prohibit Executive from filing a charge with or participating in any investigation or proceeding
conducted by the EEOC or a comparable state or local agency. Notwithstanding the foregoing,
Executive agrees to waive his or her right to recovery monetary damages in any charge, complaint or
lawsuit filed by Executive or by anyone else on his or her behalf.
3. In consideration of Executive’s agreement to comply with the covenants described in Section
5 of the Employment Agreement, the Company agrees as set forth in paragraph 6 herein.
4. Executive further agrees and recognizes that Executive has permanently and irrevocably
severed Executive’s employment relationship with the Company, that Executive shall not seek
employment with the Company or any affiliated entity at any time in the future, and that neither
the Company nor any affiliate has any obligation to employ Executive in the future.
5. Executive agrees that Executive will not disparage or subvert the Company or the Releasees,
or make any statement reflecting negatively on the Company or the Releasees, including, but not
limited to, any matters relating to the operation or management of the Company, Executive’s
employment and the termination of Executive’s employment, irrespective of the truthfulness or
falsity of such statement.
6. In consideration for Executive’s agreement as set forth herein, the Company agrees to pay
and provide Executive with the severance benefits described in Section 2.2 of Executive’s
Employment Agreement. Executive agrees that he or she is not entitled to any payments, benefits,
severance payments or other compensation beyond that expressly provided in Section 2.2 of
Executive’s Employment Agreement.
7. Executive understands and agrees that the payments, benefits and agreements provided in
this Agreement are being provided to Executive in consideration for Executive’s acceptance and
execution of, and in reliance upon Executive’s representations in, this Agreement. Executive
acknowledges that if Executive had not executed this Agreement containing a release of all claims
against the Company and the Releasees, Executive would only have been entitled to the payments
provided in the Company’s standard severance pay plan for employees.
8. Executive acknowledges and agrees that the Company previously has satisfied any and all
obligations owed to Executive under any employment agreement or offer letter Executive has with the
Company or a Releasee and, further, that this Agreement supersedes any and all prior agreements or
understandings, whether written or oral, between the parties, excluding only Executive’s
post-termination obligations under Executive’s Employment Agreement, any obligations relating to
the securities of the Company or any of its affiliates and the Company’s obligations under Section
2.2 of Executive’s Employment Agreement, all of which shall remain in full force and effect to the
extent not inconsistent with this Agreement, and further, that, except as set forth expressly
herein, no promises or representations have been made to him in connection with the termination of
Executive’s Employment Agreement or the terms of this Agreement.
9. Except as may be necessary to obtain approval or authorization to fulfill its obligations
hereunder or as required by applicable law, (a) Executive agrees not to disclose the terms of this
Agreement to anyone, except Executive’s spouse, attorney and, as necessary, tax/financial advisor,
and (b) the Company agrees that the terms of this Agreement will not be disclosed. It is expressly
understood
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that any violation of the confidentiality obligation imposed hereunder constitutes a material
breach of this Agreement.
10. Executive represents that Executive does not presently have in Executive’s possession any
records and business documents, whether on computer or hard copy, and other materials (including
but not limited to computer disks and tapes, computer programs and software, office keys,
correspondence, files, customer lists, technical information, customer information, pricing
information, business strategies and plans, sales records and all copies thereof) (collectively,
the “Corporate Records”) provided by the Company and/or its predecessors, parents,
subsidiaries or affiliates or obtained as a result of Executive’s employment with the Company
and/or its predecessors, parents, subsidiaries or affiliates, or created by Executive while
employed by or rendering services to the Company and/or its predecessors, parents, subsidiaries or
affiliates. Executive acknowledges that all such Corporate Records are the property of the
Company. In addition, Executive shall promptly return in good condition any and all Company owned
equipment or property, including, but not limited to, automobiles, personal data assistants,
facsimile machines, copy machines, pagers, credit cards, cellular telephone equipment, business
cards, laptops and computers. As of the Termination Date, the Company will make arrangements to
remove, terminate or transfer any and all business communication lines including network access,
cellular phone, fax line and other business numbers.
11. Executive expressly waives all rights afforded by any statute which expressly limits the
effect of a release with respect to unknown claims. Executive acknowledges the significance of
this release of unknown claims and the waiver of statutory protection against a release of unknown
claims which provides that a general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release, which if known by it
must have materially affected its settlement with the debtor.
12. Nothing in this Agreement shall prohibit or restrict Executive from: (i) making any
disclosure of information required by law; (ii) providing information to, or testifying or
otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law
enforcement agency or legislative body, any self-regulatory organization, or the Company’s
designated legal, compliance or human resources officers; (iii) filing, testifying, participating
in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or
municipal law relating to fraud, or any rule or regulation of the Securities and Exchange
Commission or any self-regulatory organization or (iv) challenging the knowing and voluntary nature
of the release of ADEA claims pursuant to the OWBPA.
13. The parties agree and acknowledge that the agreements by the Company described herein, and
the settlement and termination of any asserted or unasserted claims against the Releasees, are not
and shall not be construed to be an admission of any violation of any federal, state or local
statute or regulation, or of any duty owed by any of the Releasees to Executive.
14. Executive agrees and recognizes that should Executive breach any of the obligations or
covenants set forth in this Agreement, the Company will have no further obligation to provide
Executive with the consideration set forth herein, and will have the right to seek repayment of all
consideration paid up to the time of any such breach. Further, Executive acknowledges in the event
of a breach of this Agreement, Releasees may seek any and all appropriate relief for any such
breach, including equitable relief and/or money damages, attorney’s fees and costs.
15. This Agreement and the obligations of the parties hereunder shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
16. Executive certifies and acknowledges as follows:
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(a) That Executive has read the terms of this Agreement, and that Executive understands its
terms and effects, including the fact that Executive has agreed to RELEASE AND FOREVER DISCHARGE
the Company and each of the Releasees from any legal action arising out of Executive’s employment
relationship with the Company and the termination of that employment relationship;
(b) That Executive has signed this Agreement voluntarily and knowingly in exchange for the
consideration described herein, which Executive acknowledges is adequate and satisfactory to him
and which Executive acknowledges is in addition to any other benefits to which Executive is
otherwise entitled;
(c) That Executive has been and is hereby advised in writing to consult with an attorney prior
to signing this Agreement;
(d) That Executive does not waive rights or claims that may arise after the date this
Agreement is executed;
(e) That the Company has provided Executive with a period of [twenty-one (21)] or
[forty-five (45)] days within which to consider this Agreement, and that Executive has signed on
the date indicated below after concluding that this Separation of Employment Agreement and General
Release is satisfactory to Executive; and
[Note: The applicable time period will depend on whether the termination is part of a
reduction in force (45 days) or not (21 days). In addition, if the termination is in connection
with a reduction in force, certain disclosures will need to be made to Executive to comply with the
requirements of the ADEA if Executive is at least age 40.]
(f) Executive acknowledges that this Agreement may be revoked by Executive within seven (7)
days after execution, and it shall not become effective until the expiration of such seven (7) day
revocation period. In the event of a timely revocation by Executive, this Agreement will be deemed
null and void and the Company will have no obligations hereunder.
Intending to be legally bound hereby, Executive and the Company executed the foregoing
Separation of Employment Agreement and General Release this day of , ___.
| Witness: | |||||
| [Executive] | |||||
| SUNGARD | |||||
| By: | Witness: | ||||
| Name: | |||||
| Title: | |||||
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