Exhibit 10.1
DEFERRED CASH AWARD AGREEMENT
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DST SYSTEMS, INC. 2005 EQUITY INCENTIVE PLAN
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THIS AGREEMENT, is made and entered into this day of , 2006
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(the "Grant Date"), by and between DST SYSTEMS, INC. ("Company") and
("Employee").
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The parties agree as follows:
1. Award.
x. Xxxxx. Pursuant to Company's 2005 Equity Incentive Plan, as amended and
interpreted from time to time ("Plan"), and to the annual incentive award
program adopted thereunder ("Program"), Employee is hereby granted an award of
"Deferred Cash" (as defined in Paragraph 1(c) hereof) and the other rights set
forth in this Agreement ("Award").
b. Administration. The Award is administered by the Compensation Committee
of the Company's Board of Directors or other committee designated by the Board
(the "Committee") or Company officer to which the Committee delegates authority
as provided in the Plan. The Committee or its delegate may take any action the
Committee or delegate deems necessary or appropriate to administer this
Agreement and the Award in accordance and consistent with Internal Revenue Code
("Code") Section 409A and regulations and guidance issued thereunder.
c. Deferred Cash Amount. The amount of Dollars
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($ ), which is the deferred element of the annual incentive award
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earned under the Program for the 2005 performance period and is to be adjusted
pursuant to the terms of this Agreement, shall be referred to as the "Deferred
Cash".
2. Restrictions. During the "Initial Deferral Period" described in Paragraph
3(a) hereof and through any "Extended Deferral Date" (as defined in Paragraph
3(h) hereof), the Award shall not be transferable (by sale, assignment,
disposition, gift, exchange, pledge, hypothecation, or otherwise) other than as
provided in Paragraph 3(f) upon Employee's death. Any attempted disposition of
the Award, and the levy of any execution, attachment or similar process upon the
Award prior to payment of Deferred Cash, shall be null and void and without
effect.
3. Deferral, Payment and Forfeiture.
a. Deferral Period. The "Initial Deferral Period" shall be from the Grant
Date to the earlier of December 1, 2008 (the "Vesting Date") or the date (i) of
Employee's death, (ii) of Employee's "Disability" (as that term is defined in
Code Section 409A(a)(2)(C)), (iii) of Employee's separation from service with
Company as determined under Code Section 409A(a)(2)(A)(i) ("409A Separation") on
or after age 59 1/2 ("Retirement"), (iv) Employee reaches age 59 1/2 if such
date is on or subsequent to the date of a "Reduction in Force" (as defined in
Paragraph 3(h) hereof); or (v) either of the two termination of employment
circumstances set forth in Paragraph 3(d)(ii) hereof occurs subsequent to a
"Change in Control" (as defined in Paragraph 7 hereof). Each of the events set
forth in clauses (i) through (v) above is an "Early Vesting Event".
b. Payment. Subject to the forfeiture provisions in this Paragraph 3,
payment of Deferred Cash shall be made as of the last day of the "Deferral
Period" or as soon as administratively practical thereafter. The "Deferral
Period" is the Initial Deferral Period unless Employee has timely elected an
"Extended Deferral Date" (as defined in Paragraph 3(h)), in which case the
Deferral Period is from the Grant Date to the Extended Deferral Date.
Notwithstanding the foregoing, payment shall be delayed as required under Code
Section 409A(a)(2)(B)(i) and made on the six month anniversary of the last day
of the Deferral Period or as soon as administratively practical thereafter if
the Company's Chief Financial Officer ("CFO") determines that Employee is a
"specified employee" as defined in Code Section 409A.
c. Forfeiture. Subject to certain exceptions which are set forth in
Paragraph 3(d), the Deferred Cash and rights to the Award shall be immediately
forfeited to Company without payment by Company of any consideration to Employee
if, during the Initial Deferral Period, Employee for any other reason other than
an Early Vesting Event is not continuously employed (as described in Paragraph
3(g) hereof). Notwithstanding any other provision of this Agreement, termination
for "Cause" (as defined in Paragraph 3(h) hereof) or violation of Paragraph 5
hereof will cause forfeiture of the Deferred Cash and rights to the Award, and
Employee acknowledges and agrees that such forfeiture can occur prior or
subsequent to any Deferral Period and to payment of the Deferred Cash.
d. Exceptions to Forfeiture. Notwithstanding the forfeiture provisions of
Paragraph 3(c), this Paragraph 3(d) shall apply in the event of a "Business Unit
Divestiture" (as defined in Paragraph 3(h) hereof), a Change in Control or a
Reduction in Force.
i. Business Unit Divestiture. The occurrence of a Business Unit
Divestiture shall not cause vesting or forfeiture of the Award. In the
event of a Business Unit Divestiture, the Award, if not earlier forfeited,
shall vest on the Vesting Date, which shall trigger payment under Paragraph
3(b). Notwithstanding the foregoing, (a) Employee's death or Disability
prior to the Vesting Date shall trigger payment under Paragraph 3(b), and
(b) the Award shall be forfeited and no vesting or payment shall occur if
(i) Employee is terminated for Cause by the "Acquiring Entity" (as defined
in Paragraph 3(h) hereof) prior to the Vesting Date or (ii) prior to
reaching age 59 1/2, Employee voluntarily terminates employment with the
Acquiring Entity such that Employee is no longer continuously employed by
the Acquiring Entity as provided in Paragraph 3(g). If, prior to the
Vesting Date, there is a "Termination Without Cause" (as defined in
Paragraph 3(h) hereof) of Employee's employment with Acquiring Entity, the
Award shall not be forfeited and shall vest on the Vesting Date, triggering
payment under Paragraph 3(b). Employee shall promptly notify Company's
Award Plan Administrator subsequent to a Business Unit Divestiture if,
prior to the Vesting Date, Employee's employment with Acquiring Entity is
terminated for any reason, and, until payment is made or forfeiture occurs,
Employee shall keep the Award Plan Administrator apprised of Employee's
residence address.
ii. Change in Control. The occurrence of a Change in Control during
the Initial Deferral Period shall not cause vesting or forfeiture of the
Award. Employee's
"Termination Without Cause" or "Resignation for Good Reason" (each as
defined in Paragraph 3(h) hereof) subsequent to the Change in Control and
prior to the Vesting Date shall not cause forfeiture of the Award and shall
be deemed an Early Vesting Event causing the Award to vest and triggering
payment under Paragraph 3(b).
iii. Reduction in Force. The occurrence of a Reduction in Force shall
not cause vesting or forfeiture of the Award. In the event of Reduction in
Force, the Award shall vest on the Vesting Date, which shall trigger
payment under Paragraph 3(b); provided, however, that if, prior to the
Vesting Date, Employee's death or Disability occurs or Employee reaches age
59 1/2, vesting shall occur and payment of the Deferred Cash shall be made
under Paragraph 3(b). Until payment is made, Employee shall keep the Award
Plan Administrator apprised of Employee's residence address.
e. Deferred Cash Adjustment. The amount of Deferred Cash shall be adjusted
from time to time on or prior to the end of the Deferral Period as determined by
the CFO to account for increases or decreases in the value of hypothetical
investment of the Deferred Cash elected by Employee under the investment
election procedures determined by the CFO.
f. Payments to Third Party. Upon death of Employee followed by a valid
written request for payment, the Deferred Cash shall be paid to Employee's
beneficiary named in a written beneficiary designation filed with the Company's
Corporate Secretary or, if there is no such designated beneficiary, to
Employee's executor or administrator or other personal representative acceptable
to the Corporate Secretary. Any request to pay any person or persons other than
Employee shall be accompanied by such documentation as Company may reasonably
require, including without limitation, evidence satisfactory to Company of the
authority of such person or persons to receive the payment.
g. Continuity of Employment. For purposes of this Agreement, employment
includes employment by:
i. Company (or, for purposes of Paragraph 3(d)(i) the Acquiring
Entity);
ii. any corporation in an unbroken chain of corporations beginning
with Company (or Acquiring Entity if applicable) or in an unbroken chain of
corporations ending with Company (or Acquiring Entity if applicable) if, on
the Grant Date (or in the case of an Acquiring Entity on the date of the
Business Unit Divestiture), each corporation other than the last
corporation in the unbroken chain owns stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain or any entity in which Company (or
Acquiring Entity if applicable) has a direct or indirect equity interest of
at least fifty percent (50%) ("Subsidiary");
iii. any individual or entity that directly or through one or more
intermediaries controls or is controlled by or under common control with
Company (or Acquiring Entity if applicable) ("Affiliate"); or
iv. any entity in which Company directly or indirectly owns stock
possessing such minimum percentage of the total combined voting power of
all classes of stock or owns
such minimum percentage of the capital interests or profit interests as the
Committee from time to time determines for purposes of this Paragraph 3(g)
(also an "Affiliate").
Employee is not deemed to have terminated employment by, and the Award
shall not be forfeited solely as a result of, any change in Employee's duties or
position or Employee's temporary leave of absence approved by Company (or
Acquiring Entity if applicable). To be continuously employed for purposes of
this Agreement, Employee must be regularly and continuously employed by Company
(or Acquiring Entity if applicable) for more than twenty (20) hours per week and
more than five (5) months per year.
h. Paragraph 3 Definitions. For purposes of Paragraph 3, the following
terms have the meanings set forth below:
i. A "Business Unit Divestiture" is the consummation during the
Initial Deferral Period of a merger, reorganization, consolidation, or sale
of assets, or stock or other transaction that the Committee determines is a
business unit divestiture event, that involves a Subsidiary (as defined in
Paragraph 3(g)), joint venture, division or other business unit and results
in a group of employees of such business unit being employed by the
acquiring company ("Acquiring Entity") and, under Paragraph 3(g) hereof, no
longer being employed by Company.
ii. The "Extended Deferral Date" is (a) if applicable, each date
subsequent to Retirement that Employee shall receive the payment of
Deferred Cash in an installment under a timely Retirement installment
election made pursuant to the terms, conditions and procedures adopted by
the CFO; or (b) if Retirement installments are inapplicable, the earlier of
(i) the extended deferral date timely elected and fixed by Employee
pursuant to the terms, conditions, and procedures adopted by the CFO, or
(ii) the date of death, Disability, or a 409A Separation subsequent to the
Initial Deferral Period. Employee acknowledges and agrees that the Deferral
Period may terminate, and deferred amounts may be paid, in the event of a
409A Separation even if Employee remains employed by Company under
Paragraph 3(g). For instance, the Deferral Period may end, any right to
installments subsequent to Retirement may terminate, and payment may be
made under Paragraph 3(b) in the event of a Business Unit Divestiture,
Reduction in Force, or Employee's transfer to an entity owned less than 50%
owned by Company.
iii. A "Reduction in Force" means a 409A Separation with Company
during the Initial Deferral Period in which the Company terminates the
employment of at least ten (10) employees in connection with a single plan
of employment reduction.
iv. A "Resignation for Good Reason" means Employee's resignation
subsequent to a Change in Control on not less than thirty (30) days written
notice to the Company Secretary, effective at the end of such notice
period, and for any of the following reasons occurring without Employee's
consent:
(a) a change in the character of Employee's assigned duties or a
reduction in the level of Employee's work or responsibility;
(b) a reduction in base salary or incentive bonus as in effect
immediately prior to the Change in Control or in effect as a result of
an increase subsequent to the Change in Control;
(c) a failure by Company or its successor either to continue in
effect any benefit plans made generally available to Company
executives at Employee's geographic location prior to the Change in
Control or to provide other plans under which compensation and
benefits are available in which Employee continues to participate on a
basis at least equivalent to his participation in the Company plans
immediately prior to the Change in Control;
(d) a failure by Company to timely make to Employee payment of
any unfunded amounts due under any Company benefit plan as a result of
the Change in Control;
(e) the relocation of the principle office at which Employee
worked immediately prior to the Change in Control to a location
outside of the metropolitan area where such office was located but
only if relocation requires Employee to be based anywhere other than
such metropolitan area (except for required travel on Company business
to an extent substantially consistent with Employee's obligations
immediately prior to the Change in Control); or
(f) any breach of an employment agreement between Company or its
successor and Employee.
v. Termination Without Cause and for Cause. A "Termination Without
Cause" means a termination of Employee's employment under Paragraph 3(g)
that is not for Cause. Termination of employment for "Cause" includes
termination for any act of dishonesty, willful misconduct, gross
negligence, intentional or conscious abandonment or neglect of duty,
criminal activity, fraud or embezzlement, any unauthorized disclosure or
use of material confidential information or trade secrets, or violation of
any non-compete or non-disclosure agreement to which Employee is subject.
4. Taxes. Employee understands and agrees that Company may withhold from
payroll or other amounts Company owes or will owe Employee any applicable
withholding, payroll and other required tax amounts due on the Vesting Date, the
date of payment of Deferred Cash or any other applicable date. Employee agrees
to pay Company any such amounts within the deadline imposed by Company if
withholding is not effected by the Company for any reason. Employee understands
and agrees that certain tax withholding amounts may be due prior to payment of
the Deferred Cash. For instance, withholding amounts may be due upon (i) vesting
even though payment of Deferred Cash is delayed because an Extended Deferral
Date has been elected, (ii) the Grant Date if Employee is at least age 59 1/2 on
such date, (ii) Employee reaching age 59 1/2 during a Deferral Period, or (iii)
a Reduction in Force. Employee acknowledges and agrees that Company may deduct
amounts due hereunder from payroll or other amounts Company owes or will owe
Employee.
5. Violation of Non-compete, Nonuse and Nondisclosure Provisions. Employee
acknowledges that Employee's agreement to this Paragraph 5 is a key
consideration for the grant of the Award. Employee hereby agrees with the
Company as follows:
a. Non-Compete. During the period that Employee is employed by "Employer"
(as defined in Paragraph 5(h)), and thereafter during or any period for which
Employee is receiving, by agreement of Employee and Employer, any separation
payment(s) (whether made in lump sum or installments) or in which a Deferred
Cash vesting period continues to apply, Employee agrees that, without consent of
Employer, Employee will not engage directly or indirectly within any country
where Employee was employed by Employer, in any manner or capacity, as advisor,
consultant, principal, agent, partner, officer, director, employee or otherwise,
in any business or activity which is competitive with any business conducted by
the Company, a Subsidiary (as defined in Paragraph 3(g)) or Affiliate (as
defined in Paragraph 5(h)); provided, however, that the Committee may determine
as provided in Paragraph 6 hereof that such obligation shall not apply to any
period after termination of employment if such termination was on the date of a
Change in Control or within eighteen (18) months subsequent to such date.
b. Non-Solicitation. Employee further agrees that during the twelve month
(12) period subsequent to termination of employment with Employer, and
thereafter in any period in which a Deferred Cash vesting period continues to
apply, Employee will not solicit any employee of Company, a Subsidiary or
Affiliate to leave such employment to become employed by a competitor of
Company, a Subsidiary or Affiliate or solicit or contact any person, business or
entity which was a customer of Company, a Subsidiary or Affiliate at the time of
such termination of employment, or any prospective customers of Company, a
Subsidiary or Affiliate to which Company, a Subsidiary or Affiliate has made a
proposal to do business within the twelve month (12) period prior to the date of
termination of employment, for purposes of selling goods or services of the type
sold or rendered by Company, a Subsidiary or Affiliate at the time of
termination of employment.
c. Ownership of Confidential Information, Inventions and Works. All
"Confidential Information", "Inventions" and "Works" (each as defined in
Paragraph 5(h)) and documents and other materials containing Confidential
Information, Inventions and Works are the exclusive property of Employer.
Employee shall make full and prompt disclosure to Employer of all Inventions.
Employee assigns and agrees to assign to Employer all of Employee's right, title
and interest in Inventions. Employee acknowledges and agrees that all Works are
"works made for hire" under the United States copyright laws and that all
ownership rights vest exclusively in Employer from the time each Work is
created. Should a court of competent jurisdiction hold that a Work is not a
"work made for hire," Employee agrees to assign and hereby assigns to Employer
all of Employee's right, title and interest in the Work. In the event any
Invention or Work may be construed to be non-assignable, Employee hereby grants
to Employer a perpetual, royalty-free, non-exclusive license to make, use, sell,
have made, and/or sublicense such non-assignable Invention or Work. Employee
agrees to assist Employer to obtain and vest its title to all Inventions and
Works, and any patent or copyright applications or patents or copyrights in any
country, by executing all necessary or desirable documents, including
applications for patent or copyright and assignments thereof, during and after
employment, without charge to Employer, at the request and expense of Employer.
d. Recordkeeping and Return of Confidential Information, Inventions and
Works. Employee agrees to maintain regular records of all Inventions and Works
developed or written
while employed with Employer. Employee agrees to comply with any procedures
disseminated by Employer with respect to such recordkeeping. Employee agrees to
provide such records to Employer periodically and/or upon request by Employer.
Employee agrees to return to Employer all Confidential Information, Inventions
and Works in any tangible form, and copies thereof in the custody or possession
of Employee, and all originals and copies of analyses, compilations, studies or
documents pertaining to any Confidential Information, Inventions and Works, in
whatever form or medium, upon a request by Employer, or upon termination of
employment.
e. Nonuse and Nondisclosure. Employee shall not, either during or after
Employee's employment by Employer, disclose any Confidential Information,
Inventions or Works to any other person or entity outside of Employer, or use
any Confidential Information, Inventions or Works for any purpose without the
prior written approval of an officer of Employer, except to the extent required
to discharge Employee's duties assigned by Employer.
f. Subsequent Employer Notice. During the term of Employee's employment
with Employer, and for a period of one year thereafter or of any period in which
the non-compete or non-solicitation obligation set forth herein applies,
Employee agrees to identify to potential subsequent employer(s), partner(s) or
business associate(s) Employee's obligations under this Agreement prior to
committing to a position with the employer(s), partner(s), or business
associate(s). Employee agrees that Employer may, at its discretion, provide a
copy of Paragraph 5 of this Agreement to any of Employee's subsequent
employer(s), partner(s), or business associate(s), and may notify any or all of
them of Employee's obligations under this Agreement. For a period of one year
after the term of Employee's employment by Employer, Employee agrees to give
written notice to the Human Resources Department of Employer of the identity of
any subsequent employer(s), partner(s), or business associate(s) of Employee.
g. Remedies. Notwithstanding anything to the contrary herein, if Employee
violates any provisions of this Paragraph 5, whether prior to, on or after the
Deferral Period, then in addition to all other remedies available to Company,
the Award shall be immediately forfeited to Company, or, if payment of Deferred
Cash has been made, Employee shall promptly reimburse to Company the Deferred
Cash; provided, however, that no consideration shall be paid by Company to
Employee for the forfeiture of the Award or for the reimbursement. Employee
agrees that the provisions of Paragraph 5 hereof are necessary for protection of
the business of Company and that violation of such provisions is cause for
termination of employment and would cause irreparable injury to Company not
adequately remediable in damages. Employee agrees that any breach of its
obligations under Paragraph 5 hereof shall, in addition to any other relief to
which Company may be entitled, entitle the Company to temporary, preliminary and
final injunctive relief against further breach of such obligations, along with
attorneys' fees and other costs incurred by Company in connection with such
action.
h. Paragraph 5 Definitions. For purposes of Paragraph 5, the following
terms have the meanings set forth below:
i. "Employer" means any Company-related entity that has employed
Employee, whether it be Company, a Subsidiary (as defined in Paragraph
3(g)), or an Affiliate (as defined in Paragraph 3(g)) and also for purposes
of this Paragraph 5 including any entity in which Company has an direct or
indirect equity interest of at least twenty-five percent (25%)).
ii. "Confidential Information" means non-public information about
Company, Subsidiaries and Affiliates, including without limitation:
(a) inventions not disclosed to the public by Company, a
Subsidiary or Affiliate, products, designs, prototypes, data, models,
file formats, interface protocols, documentation, formulas,
improvements, discoveries, methods, computer hardware, firmware and
software, source code, object code, programming sequences, algorithms,
flow charts, test results, program formats and other works of
authorship relating to or used in the current or prospective business
or operations of Company, Subsidiaries and Affiliates, all of which is
Confidential Information, whether or not patentable or made on
Employer premises or during normal working hours; and
(b) business strategies, trade secrets, pending contracts,
unannounced services and products, financial projections, customer
lists, information about real estate Company, a Subsidiary or
Affiliate is interested in acquiring, and non-public information about
others obtained as a consequence of employment by Employer, including
without limitation information about customers and their services and
products, the account holders or shareholders of customers of Company,
Subsidiaries and Affiliates, and associates, suppliers or competitors
of Company, Subsidiaries and Affiliates.
iii. "Inventions" mean all discoveries, improvements, and inventions
relating to or used in the current or prospective business or operations of
Company, Subsidiaries and Affiliates, whether or not patentable, which are
created, made, conceived or reduced to practice by Employee or under
Employee's direction or jointly with others during Employee's employment by
Employer, whether or not during normal working hours or on the premises of
Employer.
iv. "Works" mean all original works fixed in a tangible medium of
expression by Employee or under Employee's direction or jointly with others
during Employee's employment by Employer, whether or not during normal
working hours or on the premises of Employer, and relating to or used in
the current or prospective business or operations of Employer.
i. Survival. Employee's obligations in this Paragraph 5 shall survive and
continue beyond the Deferral Period, beyond any forfeiture of the Award, and
beyond any termination or expiration of the Agreement for any reason.
6. Committee Action on Non-Compete Obligation in View of Change in Control.
Notwithstanding any provision of this Agreement to the contrary, if Company is
contemplating a transaction (whether or not Company is a party to it) or
monitoring an event that would cause Company to undergo a Change in Control, the
Committee (as constituted before such Change in Control) may determine that the
non-compete obligation set forth in Paragraph 5(a) hereof shall not apply to any
period after termination of employment if such termination was on the date of a
Change in Control or within eighteen (18) months subsequent to such date.
7. Change in Control.
a. Change in Control Events. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
i. the "Incumbent Directors" (as defined in Paragraph 7(b)hereof)
cease for any reason to constitute at least seventy-five percent (75%) of
the directors of Company then serving;
ii. any "person" (as such term is used in Paragraphs 13(d) and
14(d)(2) of the Exchange Act of 1934 ("Exchange Act")) other than Company
or any majority-owned Subsidiary (as defined in Paragraph 7(b) hereof) of
Company, or an employee benefit plan of the Company or of any
majority-owned Subsidiary of Company shall have become the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly, of securities of Company representing twenty percent (20%) or
more (calculated in accordance with Rule 13d-3) of the combined voting
power of Company's then outstanding voting securities; provided, however,
that a person's becoming such a beneficial owner shall not constitute a
Change in Control if such person is party to an agreement that limits the
ability of such person and its affiliates (as defined in Rule 12b-2 under
the Exchange Act) to obtain and exercise control over the management and
policies of Company;
iii. a "Reorganization Transaction" (as defined in Paragraph
7(b)hereof) is consummated, other than a Reorganization Transaction which
results in the "Voting Securities" (as defined in Paragraph 7(b) hereof) of
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least sixty percent (60%) of the
total voting power represented by the Voting Securities of such surviving
entity outstanding immediately after the Reorganization Transaction, if the
voting rights of each Voting Security relative to the other Voting
Securities were not altered in the Reorganization Transaction; or
iv. the stockholders of Company approve a plan of complete liquidation
of the Company, other than in connection with a Reorganization Transaction.
Notwithstanding the occurrence of any of the foregoing events, a Change in
Control shall not occur with respect to Employee if, in advance of such event,
Employee agrees in writing that such event shall not constitute a Change in
Control.
b. Definitions.
For purposes of the Paragraph 7(a), the following terms have the meanings
set forth below:
i. "Affiliate" means any Person that directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under
common control with, Company.
ii. "Incumbent Directors" means (a) an individual who was a member of
Company's Board of Directors (the "Board") on May 10, 2005, the "Effective
Date" of the
Plan; or (b) an individual whose election, or nomination for election by
Company's stockholders, was approved by a vote of at least seventy-five
percent (75%) of the members of the Board then still in office who were
members of the Board on such Effective Date; or (c) individuals whose
election, or nomination for election by Company's stockholders, was
approved by a vote of at least seventy-five percent (75%) of the members of
the Board then still in office who were elected in the manner described in
(ii)(a) or (ii)(b) above; provided that no director whose election was in
connection with a proposed transaction which, if consummated, would be a
Change in Control shall be an Incumbent Director.
iii. "Person" means any individual, sole proprietorship, corporation,
partnership, joint venture, limited liability company, association,
joint-stock company, trust, unincorporated organization, institution,
public benefit corporation, entity or government instrumentality, division,
agency, body or department.
iv. "Related Party" means (a) a majority-owned Subsidiary of Company;
or (b) an employee or group of employees of Company or of any
majority-owned Subsidiary of Company; or (c) an employee benefit plan of
Company or of any majority-owned Subsidiary of Company; or (d) a
corporation owned directly or indirectly by the stockholders of Company in
substantially the same proportion as their ownership of the voting power of
Voting Securities of Company.
v. "Reorganization Transaction" means a merger, reorganization,
consolidation, or similar transaction or a sale of all or substantially all
of Company's assets other than any such sale which would result in a
Related Party owning or acquiring more than fifty percent (50%) of the
assets owned by Company immediately prior to the sale.
vi. "Subsidiary" means an Affiliate controlled by Company directly, or
indirectly, through one or more intermediaries.
vii. "Voting Securities" of a corporation means securities of such
corporation that are entitled to vote generally in the election of
directors, but not including any other class of securities of such
corporation that may have voting power by reason of the occurrence of a
contingency
8. General.
a. No Employment Contract. Except to the extent the terms of any separate
written employment contract between Employee and Company may expressly provide
otherwise, Company shall be under no obligation to continue Employee's
employment with Company for any period of specific duration and may terminate
such employment at any time, for Cause or as a Termination Without Cause.
b. Compliance With Certain Laws and Regulations. If the Committee
determines that the consent or approval of any governmental regulatory body or
that any action with respect to the Award is necessary or desirable in
connection with the granting of the Award or the payment of the Deferred Cash,
Employee shall supply Company with such representations and information as
Company may request and shall otherwise cooperate with Company in obtaining any
such approval or taking such action.
c. Construction and No Waiver. Notwithstanding any provision of this
Agreement, the granting of the Award, the restrictions thereon, and the payment
of the Deferred Cash are subject to the provisions of the Plan and any
procedures promulgated thereunder by the Committee or its delegate. The failure
of Company in any instance to exercise any of its rights granted under this
Agreement shall not constitute a waiver of any other rights that may arise under
this Agreement.
d. Notices. Any notice required to be given or delivered to Company under
the terms of this Agreement shall be in writing and addressed to Company in care
of its Corporate Secretary at its corporate offices, and such notice shall be
deemed given only upon actual receipt by Company. Any notice required to be
given or delivered to Employee shall be in writing and addressed to Employee at
the address indicated below Employee's signature line on this Agreement or such
other address specified in a written notice given by Employee to Company, and
all such notices shall be deemed to have been given or delivered upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
e. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Delaware without reference to its principles of
conflicts of law.
f. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof, and supersedes all prior
agreements or understandings between the parties relating thereto.
g. Amendment. This Agreement may be amended in writing executed by both
parties. This Agreement may also be amended, without prior notice to Employee
and without Employee's consent, by the Committee in the event the Committee
deems it necessary or appropriate to make such amendments for purposes of
compliance with the American Jobs Creation Act of 2004 or regulations or
guidance issued pursuant thereto, including Code Section 409A.
h. Acknowledgement. The Award and this Agreement are subject to the terms
and conditions of the Plan. The Plan is incorporated in this Agreement by
reference and all capitalized terms used in this Agreement have the meaning set
forth in the Plan, unless this Agreement specifies a different meaning. By
signing this Agreement, Employee accepts this award and acknowledges that the
Award is subject to all the terms and provisions of the Plan and this Agreement.
Employee further agrees to accept as binding, conclusive and final all decisions
and interpretations by the Committee of the Plan or this Agreement regarding any
issues arising thereunder, including without limitation all decisions and
interpretations related to Code Section 409A and regulations and guidance issued
thereunder.
This Agreement will not be deemed to be binding or effective until fully
executed by both Employee and an authorized representative of Company as
reflected on both signature pages attached hereto.
IN WITNESS WHEREOF, Employee executed this Agreement as of the day and year
first above written.
EMPLOYEE
-----------------------------------------
(Employee signature)
Print name:
------------------------------
Print Address:
---------------------------
---------------------------
IN WITNESS WHEREOF, DST Systems, Inc. has caused this Agreement to be
executed on its behalf by and through its duly authorized officer as of the day
and year first above written.
DST SYSTEMS, INC.
By:
(Signature of authorized DST representative)
