SYSTEMS & COMPUTER TECHNOLOGY CORPORATION
TRANSACTION BONUS AGREEMENT
SECTION 1: RECITAL
THIS AGREEMENT ("Agreement") is made as of June 1, 2001 (the
"Effective Date") by and between SYSTEMS & COMPUTER TECHNOLOGY CORPORATION (the
"Company") and Xxxxxxx X. Xxxxxxxxxx ("Executive").
SECTION 2: DEFINITIONS
The following terms, as used herein, shall have the meaning
specified:
"Cause" means Cause as defined in the Executive's employment
agreement with the Company or, in the absence of such a contract or definition,
(i) the willful and continued failure by the Executive to substantially perform
the Executive's duties with the Company (other than any such failure resulting
from the Executive's incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a notice of termination for
Good Reason by the Executive pursuant to an employment agreement providing for
such Good Reason termination) after a written demand for substantial performance
is delivered to the Executive by the Company, which demand specifically
identifies the manner in which the Company believes that the Executive has not
substantially performed the Executive's duties, or (ii) the willful engaging by
the Executive in conduct which is demonstrably and materially injurious to the
Company or its subsidiaries, monetarily or otherwise.
"Change in Control" means any of the following to occur:
(i) The acquisition in one or more transactions by any
"Person" (as the term person is used for purposes of Sections 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")) of "Beneficial
Ownership" (as the term beneficial ownership is used for purposes of Rule 13d-3
promulgated under the 0000 Xxx) of fifty percent (50%) or more of the combined
voting power of the Company's then outstanding voting securities (the "Voting
Securities"); or
(ii) Approval by stockholders of the Company of (A) a
merger, reorganization or consolidation involving the Company if the
stockholders of the Company immediately before such merger, reorganization or
consolidation do not or will not own directly or indirectly immediately
following such merger, reorganization or consolidation, more than fifty percent
(50%) of the combined voting power of the outstanding Voting Securities of the
corporation resulting from or surviving such merger, reorganization or
consolidation in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, reorganization or
consolidation, or (B) (1) a complete liquidation or dissolution of the Company
or (2) an agreement for the sale or other disposition of all or substantially
all of the assets of the Company; or
(iii) Acceptance by stockholders of the Company of shares
in a share exchange if the stockholders of the Company immediately before such
share exchange do not or will not own directly or indirectly immediately
following such share exchange more than fifty percent (50%) of the combined
voting power of the outstanding Voting Securities of the corporation resulting
from or surviving such share exchange in substantially the same proportion as
the ownership of the Voting Securities outstanding immediately before such share
exchange.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Systems & Computer Technology Corporation and
its successors and shall include any subsidiaries of the Company, except where
the context indicates otherwise.
"Employee" means an employee of the Company.
"Good Reason" means, the occurrence (without Executive's
express written consent) of any one of the following acts by the Company or any
successor, or failures by the Company or any successor to act unless, in the
case of any act or failure to act, such act or failure to act is corrected
without any detriment to Executive within five (5) business days after notice by
the Executive to the Company:
(i) the assignment by the Company to the Executive of any
duties inconsistent with the Executive's status as an executive of the Company
or a substantial adverse alteration in the nature or status of the Executive's
responsibilities;
(ii) a reduction by the Company in the Executive's
compensation or benefits (unless the benefits are changed in a consistent manner
for all employees of the Company) on the date hereof or as may be increased from
time to time;
(iii) the relocation by the Company of its principal
executive offices to a location more than thirty (30) miles from the location of
such office as of the date hereof or the Company's requiring Executive to be
based anywhere other than the Company's principal executive offices, except for
required travel on the Company's business to the extent substantially consistent
with the Executive's present obligations;
(iv) the failure by the Company to pay the Executive any
portion of the Executive's current compensation, or to pay to the Executive any
portion of an installment of deferred compensation under any deferred
compensation program of the Company, within seven (7) days of the date such
compensation is due;
(v) the failure by the Company to continue in effect any
compensation plan in which the Executive participates which is material to the
Executive's total compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan,
or the failure by the Company to continue the Executive's participation therein
(or in such substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the level of the
Executive's participation relative to other participants; or
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(vi) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the Executive
under any of the Company's pension, life insurance, medical, health and
accident, or disability plans in which the Executive was participating (unless
the benefits are changed in a consistent manner for all employees of the
Company), the taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive the Executive of
any material fringe benefit enjoyed by the Executive (unless the benefits are
changed in a consistent manner for all employees of the Company), or the failure
by the Company to provide the Executive with the number of paid vacation days to
which the Executive is entitled on the basis of years of service with the
Company in accordance with the Company's normal vacation policy.
"Outsourcing Business" means the business of the Company
identified as outsourcing services in the Company's Annual Report on Form 10-K
as of the Effective Date, which outsourcing services are reported as a separate
line item in the Company's Statement of Operations as of the Effective Date.
"Total Sale" means a single Transaction or series of
Transactions covering all of the Company's four market units.
"Transaction" means: (i) any transaction or series or
combination of transactions whereby, directly or indirectly, control of (except
in the ordinary course of business) a material interest in the securities,
assets or business of any of the Company's market units or the Outsourcing
Business is transferred for consideration to an acquirer or any of its
affiliates, including, without limitation, a sale or exchange of capital stock
or assets, a lease of substantially all of the assets of a market unit with or
without a purchase option, a merger or consolidation, a tender or exchange
offer, a leveraged buyout, or any similar transaction; or (ii) an event
otherwise constituting a Change in Control.
"Transaction Bonus Award" means the award set forth in
Section 3.
"Transaction Bonus Pool" means eight-tenths of one percent
(.8%) of the Transaction Price of each Transaction.
"Transaction Date" means: in the case of a Total Sale, the
date on which the Transaction closes for the last market unit; in the case of
Change of Control, the occurrence thereof; and in all other cases, the date on
which the Transaction closes.
"Transaction Price" means, in connection with a Transaction,
the gross value of all cash, securities (including, but not limited to common
stock, convertible securities, options, warrants and stock appreciation rights)
and other property paid directly or indirectly to the Company or its
stockholders, and the value of any net debt. For purposes hereof, the term "net
debt" shall mean: (i) if the Transaction involves the Company rather than any of
its market units, the amount of long and short-term debt for borrowed money and
capitalized leases existing on the Company's balance sheet at the time of a
Transaction or assumed, refinanced, retired or repaid at the time of the
Transaction in connection with the Transaction, less the amount of any cash
existing on the Company's balance sheet at the time of the Transaction; and (ii)
if the Transaction involves a market unit of the Company, the amount of long and
short term debt for borrowed money and capitalized leases related to the market
unit which either remain an obligation of the market unit at the closing of the
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Transaction or are assumed, refinanced, retired or repaid in connection with the
Transaction, less the amount of any cash related to the market unit which either
remains an asset of the market unit at the closing of the Transaction or is
otherwise transferred to the buyer in connection with the Transaction. In the
event a Transaction takes the form of a sale of all or substantially all of the
Company's or a market unit's assets, Transaction Price shall also include the
value of any current assets (of the Company or the market unit, as the case may
be) not purchased less the value of any current liabilities (of the Company or
the market unit, as the case may be) not assumed. The value of any such
securities shall be determined as follows: (i) the value of securities that are
freely traded in an established public market will be determined on the basis of
the average closing market price of such securities on the 20 trading days
immediately preceding the consummation of the Transaction; (ii) the value of
securities that are not freely tradable or have no established public market,
and the value of consideration that consists of other property, shall be the
fair market value thereof as determined by the parties; and (iii) the value of
any deferred or contingent payments shall be determined when the same are
received.
SECTION 3: TRANSACTION BONUS AWARDS
(a) Eligibility. Subject to Section 3(d), Executive shall be
entitled to a Transaction Bonus Award if (i) a Transaction occurs, and (ii)
Executive is an Employee as of the applicable Transaction Date.
(b) Determination of Award. Subject further to this paragraph
3(b), Executive's Transaction Bonus Award shall be 24% of the Transaction Bonus
Pool. However, if prior to December 31, 2002, control of the Company's
Outsourcing Business is transferred for consideration to any of Affiliated
Computer Systems, Inc., KPMG, Unisys or any of their affiliates, as determined
by the Company, Executive's Transaction Bonus Award with respect to the
Outsourcing Business shall be reduced to 16% if a Transaction Bonus Award is
paid to a then-former Executive who is contractually entitled to such a
Transaction Bonus Award under a Retirement Agreement dated as of January 2, 2002
between the former Executive and the Company. The determination of whether a
Transaction or a Transaction Date has occurred, the Transaction Price and the
amount payable to Executive, if any, will be made by the Company. Anything in
this Agreement to the contrary notwithstanding, the Company may not otherwise
use its discretion to increase or decrease the amount of the Transaction Bonus
Award payable to the Executive except with his consent.
(c) Payment of Awards. The Transaction Bonus Award to which
Executive is entitled and any amount due under Section 3(g) shall be paid in a
lump sum cash payment, without interest or earnings, immediately upon the
Transaction Date of a Total Sale or a Change in Control, subject to earlier
payment as set forth below.
(d) Termination of Employment, Death or Disability. If the
Executive's employment by the Company (i) terminates by reason of death or
disability, or (ii) is terminated by the Company other than for Cause, or by the
Executive for Good Reason, the Transaction Bonus Award applicable to (x) any
Transaction for which the Transaction Date has theretofore occurred shall be
paid in a lump sum cash payment, without interest or earnings, immediately, upon
such termination and (y) any Transaction for which a definitive agreement is
signed by all necessary parties prior to the Executive's termination of
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employment and for which a Transaction Date occurs subsequent to Executive's
termination of employment shall be paid in a lump sum cash payment, without
interest or earnings, within two business days after the Transaction Date
occurs. If the Executive's employment by the Company is terminated by the
Company for Cause or by the Executive other than for Good Reason, any
Transaction Bonus Award applicable to any Transaction for which the Transaction
Date has theretofore occurred shall be cancelled and shall not be paid.
(e) Transactions as of September 30, 2002. If on September 30,
2002, Executive is an Employee and there has been at least one Transaction, but
not a Total Sale or a Change in Control, the Transaction Bonus Award applicable
to all Transactions for which the Transaction Dates have theretofore occurred
shall be paid in a lump sum cash payment, without interest or earnings, on
October 1, 2002.
(f) Board Determination. If the Board of Directors determines
that the Company shall not pursue a Total Sale or a Change in Control, and if
Executive is an Employee on the date of such determination, the Transaction
Bonus Award applicable to any Transaction for which the Transaction Date has
theretofore occurred shall be paid in a lump sum, without interest or earnings,
immediately upon such determination.
(g) Additional Payment. Upon the payment of a Transaction
Bonus Award, and at any time thereafter that the Company may deem necessary, the
Company shall determine whether such payment is a "parachute payment" under
Section 280G of the Code, in whole or in part. In addition to any other amount
payable hereunder, the Company shall pay Executive an additional sum of cash, if
any, which compensates Executive in full for the imposition of any additional
income tax and/or excise tax or penalty under Section 4999 of the Code or
otherwise imposed on account of any payment hereunder being determined at any
time by the Company or the Internal Revenue Service to be a parachute payment
under Section 280G of the Code. Such additional payment shall be made
immediately following such determination by the Company or Internal Revenue
Service, whichever is earlier.
(h) Exclusion from 1999 and 2001 Severance Agreements. This
Agreement supersedes any other agreement between Executive and the Company
relating to the payment of a Transaction Bonus Award. The Transaction Bonus
Award shall not be deemed to be a bonus for purposes of computing "Severance
Payments" as defined in and payable under the April 21, 1999 Severance Agreement
between Executive and the Company (the "1999 Severance Agreement"). This
Agreement shall not be deemed to be a "Bonus Plan" as defined in the 1999
Severance Agreement, and shall not be an offset against any amounts payable
under the Executive Severance Agreement between Executive and the Company dated
as of June 1, 2001.
(i) Retention. Executive shall continue to serve in his
current capacity and pursuant to the terms of any employment agreement that may
be in effect from time to time. The terms of this Agreement, and all
remuneration provided hereunder shall be in addition to, and not in lieu of, any
amounts payable under any other agreement between the Company and the Executive,
except as expressly provided herein.
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SECTION 4: ADMINISTRATION
(a) In General. The Company shall have full and complete
authority, in its sole and absolute discretion, (i) to exercise all of the
powers granted to it under this Agreement, (ii) to construe, interpret and
implement this Agreement and any related document, (iii) to prescribe, amend and
rescind rules relating to this Agreement, (iv) to make all determinations
necessary or advisable in administering this Agreement, and (v) to correct any
defect, supply any omission and reconcile any inconsistency in this Agreement.
(b) Appointment of Experts. The Company may appoint such
accountants, counsel, and other experts as it deems necessary or desirable in
connection with the administration of this Agreement.
(c) Delegation. The Company may delegate to Employees the
authority to execute and deliver such instruments and documents, to do all such
acts and things, and to take all such other steps deemed necessary, advisable or
convenient for the effective administration of this Agreement in accordance with
its terms and purposes, except that the Company shall not delegate any authority
with respect to decisions regarding the eligibility of, or the amount, timing or
other material terms of Transaction Bonus Awards in respect of the Executive.
(d) Code Section 162(m). It is the intent of the Company that
Transaction Bonus Award and this Agreement satisfy the applicable requirements
of Code section 162(m) so that the Company's tax deduction for remuneration in
respect of this Agreement for services performed by the Executive is not
disallowed in whole or in part by the operation of such Code section. If any
provision of this Agreement or of any Transaction Bonus Award would otherwise
frustrate or conflict with such intent, that provision to the extent possible
shall be interpreted and deemed amended so as to avoid such conflict, but no
such conflict shall serve to divest the Executive of any right otherwise
conferred by this Agreement.
SECTION 5: MISCELLANEOUS
(a) Nonassignability. No Transaction Bonus Award will be
assignable or transferable (including pursuant to a pledge or security interest)
other than by will or by laws of descent and distribution.
(b) Tax Withholding. Whenever payments are to be made
hereunder, the Company will withhold therefrom, or from any other amounts
payable to or in respect of the Executive, an amount sufficient to satisfy any
applicable governmental withholding tax requirements related thereto.
(c) Other Payments of Awards. Except as expressly set forth in
sections 3(d) and 3(h), nothing contained in this Agreement will be deemed in
any way to limit or restrict the Company from making any award or payment to any
person under any other plan, arrangement or understanding, whether now existing
or hereafter in effect.
(d) Payments to Other Persons. If payments are legally
required to be made to any person other than the person to whom any amount is
payable under this Agreement, such payments will be made accordingly. Any such
payment will be a complete discharge of the liability of the Company under this
Agreement.
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(e) No Right of Employment. Except as specifically set forth
herein, nothing in this Agreement will be construed as creating any contract of
employment or conferring upon the Executive or any other person any right to
continue in the employ or other service of the Company or limit in any way the
right of the Company to change such person's compensation or other benefits or
to terminate the employment or other service of such person with or without
Cause.
(f) Section Headings. The section headings contained herein
are for convenience only, and in the event of any conflict, the text of this
Agreement, rather than the section headings, will control.
(g) Notices. All notices and other communications required or
permitted under this Agreement must be in writing and will be deemed given when:
Delivered personally; sent by United States registered or certified mail, return
receipt requested; transmitted by facsimile confirmed by United States first
class mail; or sent by overnight courier. Notices to the Company shall be sent
to 0 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000, Attention: General Counsel (FAX
number (000) 000-0000), and notices to Executive shall be sent to Executive's
last known residence address and/or fax number contained in the Company's
records, or to such other place as either party may subsequently designate for
its receipt of notices.
(h) Invalidity. If any term or provision contained herein is
to any extent invalid or unenforceable, such term or provision will be reformed
so that it is valid, and such invalidity or unenforceability will not affect any
other provision or part hereof.
(i) Applicable Law. This Agreement will be governed by the
laws of the Commonwealth of Pennsylvania, as determined without regard to the
conflict of laws principles thereof.
(j) Effective Date. This Agreement shall be effective as of
June 1, 2001.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Company and Executive have executed this Agreement as of the date first
above written.
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SYSTEMS & COMPUTER TECHNOLOGY
CORPORATION
By: /s/ Xxxx Xxxxxxx
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EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxxxx
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