TERMINATION AGREEMENT AND RELEASE
This Termination Agreement and
General Release (hereinafter, the “Agreement”) is made and entered into this
25th day of June, 2010, by and between Xxxxxxxx X. Xxxxxxx (hereinafter referred
to as “Xxxxxxx”), and Automatic Data Processing, Inc. (hereinafter referred to
as the “Company”).
In exchange for the mutual promises
contained herein, Xxxxxxx and the Company, intending to be bound hereby,
covenant and agree as follows:
1. Xxxxxxx’x employment with the
Company will terminate effective June 30, 2010. Effective June 30, 2010, Xxxxxxx
shall cease to be an executive officer of the Company.
2. The Company agrees to the
following:
(a) The Company will pay Xxxxxxx
xxxxxxxxx in the total gross amount of $450,000.00. This severance amount will
be paid out in eleven (11) monthly installments (the “Monthly Installments”) of
$37,500.00 each between January 2, 2011 and December 2, 2011 and in one (1)
final monthly installment of $37,500.00 on January 2, 2012. The Monthly
Installments will be made on the Company’s regular pay dates. The Company shall
withhold from any payment made pursuant to the Agreement federal, state and
local taxes and social security taxes, as well as any other standard deductions.
If Xxxxxxx becomes re-employed with the Company before January 2, 2012, Xxxxxxx
will not be entitled to any further payments under this paragraph 2(a).
(b) The Company will pay Xxxxxxx
for all accrued and unused vacation as of June 30, 2010.
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(c) The Company will reimburse Xxxxxxx for
outstanding expenses properly incurred prior to June 30, 2010 that are submitted
to the Company no later than August 1, 2010. All such expenses will be
reimbursed in accordance with the Company’s existing policy.
(d) The Company will pay Xxxxxxx a
bonus for FY’10 based on performance (the “FY’10 Bonus”). The FY’10 Bonus will be paid
by September 1, 2010.
(e) The Company will continue the automobile
lease (the “Leased Vehicle”) provided to Xxxxxxx through September 30, 2011 on
all the same terms and conditions of the existing lease (the “Lease Program”).
Notwithstanding the foregoing, the Lease Program shall not include replacement
of the Leased Vehicle.
(f) A 12-month outplacement
assistance program selected by the Company will be made available to Xxxxxxx at the Company’s
expense.
(g) Xxxxxxx will be allowed to continue his
participation in the ADP Deferred Compensation Program for FY’10 (the “DC
Program”). Xxxxxxx’x XX Program account will be paid out to him six months after
his last date of active employment in accordance with the terms of the DC
Program.
(h) Xxxxxxx’x welfare benefits
(medical, dental, vision, life, long-term disability, Flexible Spending Accounts
(“FSA”), Accidental Death & Dismemberment Insurance, Business Travel
Accident Insurance, Personal Accident Insurance and any other welfare benefits
the Company may provide) will terminate on June 30, 2010. Xxxxxxx will have the
right to continue health and FSA benefits as permitted by law under the
Consolidated Omnibus Budget Reconciliation Act and will be separately notified
of conversion privileges, if any, for Xxxxxxx’x welfare benefits.
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(i) Xxxxxxx agrees to abide by all of the
terms and conditions of agreements with the Company executed in connection with
all ADP stock options or restricted stock previously granted to Xxxxxxx (the
“Stock Agreements”), and that any Non-Competition Period, as defined in any such
Stock Agreements, shall not terminate until twelve months after January 2, 2012.
All ADP stock options previously granted to Xxxxxxx will continue to vest
through January 2, 2012. Xxxxxxx may exercise all vested ADP stock options
within 60 days of January 2, 2012. Notwithstanding the foregoing, all vested
stock options must be exercised prior to their original expiration date,
regardless of the exercise periods set forth herein. All vested stock
options that are not exercised within the time periods set forth above will be
cancelled.
(j) Xxxxxxx understands and acknowledges that
for a period of six (6) months following his last date of active employment he
will continue to be a “Restricted Person” as such term is used in the Company’s
Xxxxxxx Xxxxxxx Policy, and he will continue to abide by all rules and
limitations applicable thereunder to Restricted Persons.
(k) For purposes of the Automatic Data
Processing, Inc. Retirement and Savings Plan and/or the Automatic Data
Processing, Inc. Pension Retirement Plan (collectively referred to as the
“Plans”), Xxxxxxx will be considered a terminated employee as of June 30, 2010.
As such, contributions, vesting, matches and other service based benefits,
rights and features accorded to employees will terminate as of June 30, 2010.
All the terms and conditions of the Plans will be governed by the controlling
plan documents. The Plans have not been modified in any way by the Agreement.
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(l) Xxxxxxx’x participation in the Automatic
Data Processing, Inc. Amended and Restated Employees’ Savings-Stock Purchase
Plan (the “Purchase Plan”) ends as of June 30, 2010. Xxxxxxx acknowledges that
he will be issued stock only upon the completion of a Purchase Plan offering in
accordance with the terms of the Purchase Plan. The Purchase Plan has not been
modified in any way by the Agreement.
(m) Xxxxxxx was granted shares of ADP common
stock under the Company’s Time-Based Restricted Stock programs (“TBRS
Programs”). Provided he does not, prior to January 2, 2012, violate any
Restrictive Covenant (as defined in paragraph 2(o) below), Xxxxxxx will be
entitled to keep (i) any shares of Time-Based Restricted Stock subject to
restrictions lapsing prior to January 2, 2012 and (ii) the shares of Time-Based
Restricted Stock granted to him on April 30, 2008 subject to restrictions
lapsing on April 12, 2012, with the restrictions on the shares identified in
this clause (ii) to be lifted on January 1, 2012. If prior to January 2, 2012,
Xxxxxxx violates any Restrictive Covenant, he shall immediately forfeit without
consideration all such Time-Based Restricted Stock shares. Xxxxxxx’x
participation in all other TBRS Programs will be cancelled. Any shares with
restrictions lapsing after January 2, 2012 shall be returned to the Company on
June 30, 2010. All other terms and conditions of the TBRS Programs will remain
in effect. Any determination that a Restrictive Covenant has been violated shall
be made on a good faith basis.
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(n) Xxxxxxx was recommended for
target award(s) of shares of ADP common stock under the Company’s
Performance-Based Restricted Stock program (“PBRS Program”), to be awarded per
the terms of the PBRS Program, with restrictions lapsing six (6) months after
the date of any such award (each,
a “Lapse Date”), such terms to include, without limitation, the execution of a
Restrictive Covenant (as defined in paragraph 2(o) below). Xxxxxxx will be
entitled to keep any such PBRS Program shares that may be awarded to him
provided, (i) his last day of active employment with the Company is on or after
June 30 of the calendar year of the award; (ii) he is receiving severance
payments pursuant to paragraph 2(a) on the lapse date; and (iii) Xxxxxxx does
not, prior to the lapse date, violate any Restrictive Covenant. If prior to a
Lapse Date, Xxxxxxx violates any Restrictive Covenant, Xxxxxxx shall immediately
forfeit without consideration such PBRS Program shares. Xxxxxxx’x participation
in all other PBRS Programs with a Lapse Date after January 2, 2012 will be
cancelled. All other terms and conditions of the PBRS Program shall remain in
effect. Any determination that a Restrictive Covenant has been violated shall be
made on a good faith basis.
(o) Any use of the term “Restrictive
Covenant” in the Agreement shall mean any non-competition, non-solicitation,
non-disclosure or confidentiality obligations reflected in the provisions of any
agreement with the Company that Xxxxxxx has entered into, or any Company plan,
policy or arrangement that applies to Xxxxxxx.
(p) Xxxxxxx is a “Participant” as defined in
the Automatic Data Processing, Inc. Amended and Restated Supplemental Officers
Retirement Plan (“SORP”). Xxxxxxx’x benefits under the SORP shall be determined
in accordance with, and under the terms of, the SORP. Xxxxxxx’x final benefits
will be determined based on his last day worked of June 30, 2010. Among other
things, the SORP provides that if a Participant violates the non-competition
provisions of any agreement he has entered into with the Company within 24
months after his employment terminates, such Participant shall forever and
irrevocably forfeit all benefits otherwise due
him under the terms of the SORP. The SORP has not been modified in any way by
the Agreement. For purposes of the 24-month non-competition provision under the
SORP, Xxxxxxx shall be considered to have terminated employment with the Company
as of January 2, 2012.
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(q) Xxxxxxx’x heirs, representatives, assigns
or estate shall be entitled to any payments pursuant to paragraph 2 of the
Agreement in the event of Xxxxxxx’x death, for any period subsequent to
Xxxxxxx’x death, but shall not be entitled to keep the Leased Vehicle, which
must be immediately returned to the Company in the event of Xxxxxxx’x death.
3. Xxxxxxx agrees to the following:
(a) Xxxxxxx agrees that he will not, at any
time after the date hereof, use or disclose to any person, corporation,
partnership or other entity whatsoever, any confidential information, trade
secrets or proprietary information of the Company, its vendors, licensors,
marketing partners, clients or prospects learned by Xxxxxxx during his
employment and/or any of the names and addresses of clients and prospects of the
Company.
(b) Xxxxxxx agrees that all books, handbooks,
manuals, files, papers, memoranda, letters, facsimile or other printed,
electronic or audio communications that he has in his possession that were
created, written, authorized, signed, received, sent or transmitted during his
employment or that are in any way related to the Company or any of its business
activities remain the property of the Company and have not been removed from
and/or have been returned to the Company’s offices.
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(c) Xxxxxxx agrees that, on or
before June 30, 2010, he will return all property belonging to the Company, including but not
limited to any computer/laptop, computer equipment, computer software, telephone and/or pager that the Company
permitted him to use during his employment with the Company. Notwithstanding the
foregoing, the Company will transfer title to Xxxxxxx of (i) the telephone with
serial number IHDT56EU2; and (ii) the blackberry with serial number
PCB-16090-001_H. The Company has no further obligation toward maintenance and
support of the telephone or blackberry after June 30, 2010.
(d) From June 30, 2010 until January 27, 2012,
Xxxxxxx will not, directly or indirectly, hire, solicit or encourage to leave
the Company’s employ any employee of the Company or hire any former employee of
the Company within one year after the date such person ceased to be an employee
of the Company.
(e) Xxxxxxx agrees that a violation of the
foregoing covenants set forth in this paragraph 3 will cause irreparable injury
to the Company. Accordingly, the Company shall be entitled, in addition to any
other rights and remedies it may have at law or in equity (including, without
limitation, those specifically set forth in paragraphs 2(m), 2(n) and 2(p)
above), to an injunction enjoining and restraining Xxxxxxx from doing or
continuing to do any such act.
(f) Xxxxxxx agrees to cooperate with
the Company, and to provide all information and sign any corporate records and
instruments that the Company may hereafter reasonably request with respect to
any matter involving his present or former relationship with the Company, the
work he has performed, or present or former employees or clients of the Company.
The Company agrees to promptly reimburse Xxxxxxx for reasonable expenses (which
will include a reasonable daily rate for those dates Xxxxxxx‘s appearance in a
court or similar proceeding is required and for travel to and from such sites)
necessarily incurred by him, in connection with his cooperation pursuant to this
paragraph.
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(g) Xxxxxxx agrees that if he is served with a
subpoena or court order to testify (including but not limited to any such
subpoena covered by paragraph 7(d) below) with respect to any matter involving
his present or former relationship with the Company, the work he has performed,
or present or former employees or clients of the Company, he shall, within 5
days of receipt of such subpoena or court order, notify the “Company” , c/o
Automatic Data Processing, Inc., Xxx XXX Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
Attention: General Counsel.
4. The parties agree that if any
part or any provision of the Agreement is determined to be invalid or
unenforceable under applicable law by a court of competent jurisdiction, that
part shall be ineffective to the extent of such invalidity or unenforceability
only, without in any way affecting the remaining parts of said provision or the
remaining provisions of the Agreement.
5. Xxxxxxx agrees that any waiver on the part
of the Company as to compliance with any of the terms and conditions of the
Agreement shall not operate as a waiver of, or estoppel with respect to, any
prior, subsequent or other failure by Xxxxxxx to perform his obligations under
the Agreement.
6. Xxxxxxx acknowledges that this is the
entire agreement between the parties concerning the subject matter hereof.
Xxxxxxx acknowledges that there are no representations by the Company, oral or
written, not set forth in the Agreement upon which he relied in signing the
Agreement.
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7. Release:
(a) In consideration for the above,
Xxxxxxx (including any family members, agents, successors or assigns whose claim is based in
whole or part on a Claim, as defined below) agrees to forever release, acquit and discharge
Automatic Data Processing, Inc. and all its subsidiaries, affiliates, divisions
and its and their employees, officers, directors, agents, carriers, and
shareholders and its and their predecessors, successors and assigns
(“Releasees”) from and against all claims, actions and causes of action, of
every kind, nature and description without limitation, whether created by any
constitution, statute, common law, regulation, municipal ordinance, executive
order, contract, duty or obligation arising from any source which exist as of
the date Xxxxxxx signs the Agreement (“Claims”). This release includes all
Claims arising under all federal, state and local employment discrimination
statutes, ordinances or regulations including but not limited to, Title VII of
the Civil Rights Act of 1964, as amended, the Equal Pay Act, the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act, the
Rehabilitation Act, the Americans with Disabilities Act, as amended, the Family
and Medical Leave Act, the Labor Management Relations Act, the Sarbanes Oxley
Act, the Health Insurance Portability and Accountability Act, the Occupational
Safety and Health Act, and the Employee Retirement Income Security Act, and all
other sex, sexual orientation, marital status, religion, race, national origin,
veterans’, disability, age discrimination, whistleblower and anti-retaliation
laws, including but not limited to, the New Jersey Conscientious Employee
Protection Act, and the New Jersey Law Against Discrimination. Xxxxxxx expressly
waives all rights he may have under such laws, and under any amendments thereto,
any claims based on contract, tort, public policy, or any principle of law or
equity, and any claim for money, damages, attorneys fees, costs, and injunctive
or other relief.
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(b) Except as set forth herein,
Xxxxxxx acknowledges, represents and warrants that the Company owes him no other wages,
commissions, bonuses, vacation pay or other compensation or payments of any nature, other
than that specifically provided for in the Agreement. Xxxxxxx further
acknowledges that except as provided for herein, the Company shall not have any
obligation to him or to any other person or entity for any other monies or
benefits including, but not limited to, attorneys’ fees, car allowance, use of a
Company car, stock, stock options, restricted stock, stock purchase plan,
pension, medical, life, short-term disability, long-term disability or other
insurance, ERISA benefits, severance or any obligation set forth in any
agreement of employment or other agreement with the Company, whether such
agreement is express or implied.
(c) Xxxxxxx warrants that as of the date he
signs the Agreement he has not filed any Claim against Releasees. Xxxxxxx further warrants that at the time he signs the Agreement he is
unaware of any conduct by any Releasees that he believes may be
unlawful.
(d) This release of all Claims shall not be
construed to prohibit Xxxxxxx from cooperating with the Equal Employment
Opportunity Commission (“EEOC”) in an investigation by the EEOC of any matter,
or responding to any subpoena or other lawfully issued process in any such
investigation, except that Xxxxxxx waives any monetary recovery in any lawsuit
filed by the EEOC on behalf of Xxxxxxx or a class in which he would otherwise be
a member.
8. Notification of Rights:
(a) Xxxxxxx has twenty-one days from receipt
of the Agreement to consider it, and to return the signed Agreement to Xxxxxx
Xxxxxxxxx, Corporate Vice President, Human Resources, Automatic Data Processing,
Inc., Xxx XXX Xxxxxxxxx, X/X 000, Xxxxxxxx, Xxx Xxxxxx 00000. In order for
Xxxxxxx to fully understand his statutory rights and the legal effect of a
waiver by Xxxxxxx of those rights, he has the right to consult with an attorney.
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(b) If Xxxxxxx elects to sign the
Agreement it means that: (i) he has read the Agreement and understands it; (ii)
he has not received any inducements to sign the Agreement other than what is set
forth in the Agreement; (iii) he has had adequate opportunity to consult with an
attorney of his choosing; and (iv) he has signed the Agreement voluntarily and
knowingly.
(c) Xxxxxxx understands and agrees
that if he chooses to sign the Agreement before the expiration of the twenty-one
(21) day consideration period, he has waived the remainder of that period.
(d) Xxxxxxx understands and agrees
that if the Agreement is not signed and returned by June 30, 2010, he is no longer
eligible for the benefits set forth in the Agreement.
(e) After Xxxxxxx has signed the
Agreement, Xxxxxxx may revoke his acceptance of it within seven (7) days from
the date of his execution of the Agreement. Revocation must be made by
submitting a written revocation by hand delivery or certified mail, return
receipt requested, to Xxxxxx Xxxxxxxxx, Corporate Vice President, Human
Resources, Automatic Data Processing, Inc., Xxx XXX Xxxxxxxxx, X/X 000,
Xxxxxxxx, Xxx Xxxxxx 00000. If revocation of the Agreement is not made within
the seven (7) day revocation period, the Agreement will become final, binding
and irrevocable on both parties.
9. In consideration of the Company’s
undertakings and agreements to him set forth herein, Xxxxxxx agrees to
reacknowledge his acceptance of the Agreement and its terms and conditions,
without any changes, and before payment of any sums due him arising from the
Agreement, on July 1, 2010 by signing a Release and Reacknowledgement in the
form attached hereto as Exhibit A. Payments will not begin until after the seven
day revocation period in Exhibit A has lapsed without revocation of the Release
and Reacknowledgement.
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IN
WITNESS WHEREOF, and intending to be legally bound hereby, Xxxxxxxx X. Xxxxxxx and Automatic Data
Processing, Inc. have executed the foregoing Agreement.
XXXXXXXX X. XXXXXXX | |||
By: | /s/ Xxxxxxxx X. Xxxxxxx | ||
AUTOMATIC DATA PROCESSING, INC. | |||
By: | /s/ Xxxxxxx Xxxxxxx | ||
Xxxxxxx Xxxxxxx | |||
Vice President |
EXHIBIT A
Release and
Reacknowledgement Agreement (the “Agreement”)
The
undersigned, Xxxxxxxx X. Xxxxxxx, through and by his signature below, in
consideration of the undertakings and agreements set forth in that certain
Termination Agreement and Release between Xxxxxxxx X. Xxxxxxx and Automatic Data
Processing, Inc. dated June 25, 2010 (the “Termination Agreement”):
1.
Reacknowledges his acceptance and agreement to the Termination Agreement as of
the date set forth below, including but not limited to the release provision
under paragraph 7, which provides:
(a) | In consideration for the above, Xxxxxxx (including any family members, agents, successors or assigns whose claim is based in whole or part on a Claim, as defined below) agree to forever release, acquit and discharge Automatic Data Processing, Inc. and all its subsidiaries, affiliates, divisions and its and their employees, officers, directors, agents, carriers, and shareholders and its and their predecessors, successors and assigns (“Releasees”) from and against all claims, actions and causes of action, of every kind, nature and description without limitation, whether created by any constitution, statute, common law, regulation, municipal ordinance, executive order, contract, duty or obligation arising from any source which exist as of the date you sign this Letter Agreement (“Claims”). This release includes all Claims arising under all federal, state and local employment discrimination statutes, ordinances or regulations including but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Rehabilitation Act, the Americans with Disabilities Act, as amended, the Family and Medical Leave Act, the Labor Management Relations Act, the Sarbanes Oxley Act, the Health Insurance Portability and Accountability Act, the Occupational Safety and Health Act, and the Employee Retirement Income Security Act, and all other sex, sexual orientation, marital status, religion, race, national origin, veterans’, disability, age discrimination, whistleblower and anti-retaliation laws, including but not limited to, the New Jersey Conscientious Employee Protection Act, and the New Jersey Law Against Discrimination. Xxxxxxx expressly waives all rights he may have under such laws, and under any amendments thereto, any claims based on contract, tort, public policy, or any principle of law or equity, and any claim for money, damages, attorneys fees, costs, and injunctive or other relief. | ||
(b) | Except as set forth herein, Xxxxxxx acknowledges, represents and warrants that the Company owes him no other wages, commissions, bonuses, vacation pay or other compensation or payments of any nature, other than that specifically provided for in the Agreement. Xxxxxxx further acknowledges that except as provided for herein, the Company shall not have any obligation to him or to any other person or entity for any other monies or benefits including, but not limited to, attorneys’ fees, car allowance, use of a Company car, stock, stock options, restricted stock, stock purchase plan, pension, medical, life, short-term disability, long-term disability or other insurance, ERISA benefits, severance or any obligation set forth in any agreement of employment or other agreement with the Company, whether such agreement is express or implied. |
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(c) |
Xxxxxxx warrants that as of the date he signs the Agreement he has
not filed any Claim against Releasees. Xxxxxxx further warrants that
at the time he signs the Agreement he is unaware of any conduct by any
Releasees that he believes may be unlawful.
|
||
(d) |
This
release of all Claims shall not be construed to prohibit Xxxxxxx from
cooperating with the Equal Employment Opportunity Commission (“EEOC”) in
an investigation by the EEOC of any matter, or responding to any subpoena
or other lawfully issued process in any such investigation, except that
Xxxxxxx waives any monetary recovery in any lawsuit filed by the EEOC on
behalf of Xxxxxxx or a class in which he would otherwise be a
member.
|
Acknowledges and agrees that (a) he has been advised to consult with his
attorney before signing the Agreement; (b) he has been advised that he has 21
days from receipt of the Agreement to accept the terms and conditions set forth
herein; (c) he has read and understood the Agreement; (d) he has reviewed the
Agreement with his attorney or has elected not to do so; (e) after he signs the
Agreement, he will have seven (7) days to revoke his acceptance of it; (f) any
such revocation must be in writing and delivered or mailed by certified mail,
return receipt requested, to Xxxxxx Xxxxxxxxx, Corporate Vice President, Human
Resources, Automatic Data Processing, Inc., Xxx XXX Xxxxxxxxx, X/X 000,
Xxxxxxxx, Xxx Xxxxxx 00000; and (g) the Agreement is not effective or
enforceable until seven (7) days after he has signed it.
Accepted and
Agreed to on this
____ day of July __, 2010.
____ day of July __, 2010.
By | |
Xxxxxxxx X. Xxxxxxx |