CHANGE OF CONTROL AGREEMENT
Exhibit 10.17
THIS AGREEMENT (“Agreement”), by and between TOTAL SYSTEM SERVICES, INC., a Georgia
corporation (the “Company”) and (the “Employee”) is entered into as of
the 1st day of January, 2008 (the “Effective Date”);
WHEREAS, the Board of Directors of the Company (the “Board”), has determined that it is in the
best interests of the Company and its shareholders to assure that the Company will have the
continued dedication of the Employee, notwithstanding the possibility, threat or occurrence of a
Change of Control (as defined below) of the Company;
WHEREAS, the Board believes it is imperative to diminish the inevitable distraction of the
Employee by virtue of the personal uncertainties and risks created by a pending or threatened
Change of Control and to encourage the Employee’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and to provide the
Employee with appropriate compensation and benefits arrangements upon a Change of Control which are
competitive with those of other corporations; and
WHEREAS, in order to accomplish these objectives, the Board has caused the Company to enter
into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The “Change of Control Date” shall mean the first date during
the Change of Control Period (as defined in Section 1(b)) on which a Change of Control (as defined
in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Employee’s employment with the Company is terminated prior to the date on
which the Change of Control occurs, and if it is reasonably demonstrated by Employee that such
termination of employment (i) was at the request of a third party who has taken steps reasonably
calculated to effect a Change of Control or (ii) otherwise arose in connection with or in
anticipation of a Change of Control, then for all purposes of this Agreement the “Change of Control
Date” shall mean the date immediately prior to the date of such termination of employment.
(b) The “Change of Control Period” shall mean the period commencing on the Effective Date and
ending on the day after the date of Employee’s termination of employment from the Company or, if
earlier, the date which is two years after the Change of Control Date.
(c) “Cause” shall mean:
(1) the willful and continued failure of the Employee to perform substantially the Employee’s
duties with the Company or one of its affiliates after a written demand for substantial performance
is delivered to the Employee by the Executive Committee of the Board or the Chief Executive Officer
of the Company which specifically identifies the manner in which the Executive Committee of the
Board or Chief Executive Officer believes that the Employee has not
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substantially performed the Employee’s duties, after which Employee shall have a reasonable
amount of time to remedy such failure to substantially perform his or her duties; or
(2) the willful engaging by the Employee in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company.
For purposes of this provision, no act, or failure to act, on the part of the Employee shall
be considered “willful” unless it is done, or omitted to be done, by the Employee in bad faith or
without reasonable belief that the Employee’s action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board, or the Executive Committee of the Board, or upon the instructions of the
Chief Executive Officer, or an Executive Vice President (or higher ranking officer), of the
Company, or based upon the advice of counsel for the Company, shall be conclusively presumed to be
done, or omitted to be done, by the Employee in good faith and in the best interests of the
Company. The cessation of employment of the Employee shall not be deemed to be for Cause unless
and until there shall have been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters (3/4) of the entire membership of the
Executive Committee of the Board at a meeting of the Executive Committee of the Board called and
held for such purpose (after reasonable notice is provided to the Employee and the Employee is
given an opportunity, together with counsel, to be heard before the Executive Committee of the
Board), finding that, in the good faith opinion of the Executive Committee of the Board, the
Employee is guilty of the conduct described in subparagraph (1) or (2) above, and specifying the
particulars thereof in detail.
(d) “Good Reason” shall mean:
(1) a material adverse reduction in the Employee’s position duties or responsibilities
excluding for this purpose: (i) a change in the position or level of officer to whom the
Employee reports, (ii) a change that is part of a policy, program or arrangement applicable to peer
executives (including peer executives of any successor to the Company), or (iii) an isolated,
insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Employee;
(2) the Company’s requiring the Employee to be based at any office or location more than 35
miles from the location where Employee was employed on the Change of Control Date or the date which
is 120 days prior to the Change of Control Date (if such earlier date is selected by Employee);
(3) a material reduction in Employee’s annual base salary, target annual bonus opportunity
(including, without limitation, the use of bonus goals that are not reasonable and consistent with
the bonus goals established for the preceding year), or participation in employee benefit plans, as
such salary, bonus and plans were in effect on either the Change of Control Date or the date which
is 120 days prior to the Change of Control Date (if such earlier date is selected by Employee)
unless such reduction is part of a policy, program or arrangement applicable to peer executives
(including peer executives to any successor to Company) ; or
(4) any failure by the Company to comply with and satisfy Section 8(c) of this Agreement.
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For purposes of this Section 1(d), any good faith determination of “Good Reason” made by the
Employee shall be conclusive.
(e) “Disability” shall be defined the same as such term is defined in either, at the selection
of the Employee, (a) the group long-term disability insurance plan sponsored or maintained by
Company on the Change of Control Date in which Employee participates or (b) any individual
long-term disability insurance arrangement in effect on the Change of Control Date, the premiums of
which are paid by Company for the benefit of Employee.
2. Change of Control. For the purposes of this Agreement, a “Change of Control” shall mean:
(a) the acquisition by any “person” (“Person”), as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than the
Company or a subsidiary or any Company employee benefit plan (including its trustee), of
“beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 20% or more of the total number of shares of the
Company’s then outstanding securities;
(b) individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least two-thirds (2/3) of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or nomination for
election by the Company’s shareholders, was approved by a vote of at least two-thirds (2/3) of the
directors then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) consummation of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets or stock of the Company (a “Business Combination”), in each
case, unless, following such Business Combination, (i) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the total number of shares of the
Company’s outstanding securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than sixty percent (60%) of, respectively, the total number of shares
of the then outstanding securities of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership, immediately prior to such
Business Combination, of the total number of shares of the Company’s outstanding securities, (ii)
no Person (excluding any corporation resulting from such Business Combination, or any employee
benefit plan (including its trustee) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the
total number
of shares of the then outstanding securities of the corporation resulting from such Business
Combination except to the extent that such ownership existed prior to the Business Combination and
(iii) at least two-thirds (2/3) of the members of the board of directors of the
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Corporation
resulting from such Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing for such Business
Combination.
For purposes of this Section 2, a “Change of Control” shall not result from any transaction
precipitated by the Company’s insolvency, appointment of a conservator, or determination by a
regulatory agency that the Company is insolvent, nor from any transaction initiated by the Company
in regard to converting from a publicly traded company to a privately held company.
3. Obligations of Company Upon Termination. In the event Employee’s employment by Company is
terminated before the two-year anniversary date of the Change of Control Date either (i) by the
Company for any reason other than Cause or Employee’s death or Disability, or (ii) by Employee for
Good Reason, then
(a) The Company shall pay to Employee in a lump sum in cash on the date which is six months
and one day after the date Employee has a separation from service (within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”)) the aggregate of the following
amounts:
(1) three times the sum of: (a) Employee’s annual base salary as in effect immediately prior
to Employee’s termination; plus (b) the product of (i) Employee’s annual base salary as in effect
immediately prior to Employee’s termination of employment multiplied by (ii) a percentage equal to
the average percentage of Employee’s annual bonus earned with respect to the three calendar years
ended prior to Employee’s termination, measured as a percentage of Employee’s annual base salary
for the year the bonus was earned; and
(2) the product of (a) a fraction, the numerator of which is the greater of (i) six, or (ii)
number of full months Employee worked in the calendar year of Employee’s termination (e.g.,
an October 1 termination date results in a numerator of 9) and the denominator of which is 12;
multiplied by (b) the target annual bonus for which Employee was eligible immediately prior to
Employee’s termination.
For purposes of this Agreement, “annual base salary” means Employee’s annual rate of pay excluding
all other elements of compensation such as, without limitation, bonuses, perquisites, restricted
stock awards, stock options, and retirement and welfare benefits.
(b) For three years after Employee’s termination of employment, Employee shall continue to be
eligible to receive medical and welfare benefits (including, without limitation, medical,
prescription, dental, disability (both individual and group arrangements), life (both individual
and group arrangements), and accidental death and dismemberment plans and programs) for Employee
and Employee’s dependents at the level of coverage elected by Employee during the open enrollment
period immediately preceding Employee’s termination of employment date under benefit plans that are
generally equivalent to those provided generally at any time after the Effective Date to other peer
employees of the Company and its affiliated companies (excluding individual
disability and individual life insurance arrangements, which must continue to be provided
regardless of whether provided to peer employees) and the Company shall reimburse Employee for
Employee’s costs or expenses for such benefits; provided, however, that if Employee becomes
reemployed with
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another employer (specifically excluding self-employment) and is eligible to
receive medical or other welfare benefits under another employer provided plan, Company shall
terminate all medical and other welfare benefits being provided hereunder; and provided further,
however, that, if Employee is not eligible to participate under the terms of such medical and
welfare benefit plans (including COBRA continuation coverage for which Executive is eligible),
Company shall pay Employee in cash on the date which is six months and one day after the date
Employee has a separation from service (within the meaning of Section 409A of the Code) a lump sum
amount equal to the lesser of: (1) thirty-six (36) times the average monthly cost per employee to
the Company to provide the benefits described in this Section 3(b) to its employees, or (2) 25% of
the lump sum amount payable to Employee pursuant to Section 3(a) of this Agreement.
(c) The Company shall not be obligated under this Agreement to provide outplacement assistance
or any other benefits and perquisites not covered above, such as a Company-provided automobile,
country club and dining club dues, health club dues, retirement benefits, etc.
4. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Employee’s
continuing or future participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Employee may qualify, nor, subject to Section
9(f), shall anything herein limit or otherwise affect such rights as the Employee may have under
any contract or agreement with the Company or any of its affiliated companies. Amounts which are
vested benefits or which the Employee is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of its affiliated
companies at or subsequent to the date of termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly modified by this
Agreement.
5. Full Settlement. The Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the Company may have
against the Employee or others. In no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable to the Employee
under any of the provisions of this Agreement and, except as otherwise provided in this Agreement,
such amounts shall not be reduced whether or not the Employee obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses
which the Employee may reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Company, the Employee or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof (including as a
result of any contest by the Employee about the amount of any payment pursuant to this Agreement),
plus in each case interest on any delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Code.
6. Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Employee (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement or otherwise,
but determined without regard to any additional payments required under this Section (6) (a
“Payment”))
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would be subject to the excise tax imposed by Section 4999 of the Code or any interest
or penalties are incurred by the Employee with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then the Employee shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Employee of all taxes on the Gross-Up Payment
including, without limitation, any income taxes, employment taxes, excise taxes, and interest and
penalties imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of
this Section 6, if it shall be determined that the Employee is entitled to a Gross-Up Payment, but
that the Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be
paid to the Employee such that the receipt of Payments would not give rise to any Excise Tax, then
no Gross-Up Payment shall be made to the Employee and the remaining provisions of this Section 6
shall not apply.
(b) Subject to the provisions of Section 6(c), all determinations required to be made under
this Section 6, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by KPMG Peat Marwick or such other nationally recognized certified public accounting firm as
may be designated by the Company (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and the Employee within 15 business days of the receipt of notice
from the Employee that there has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by the Company to the
Employee within five days of the receipt of the Accounting Firm’s determination. Any determination
by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been
made by the Company should have been made (“Underpayment”), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its remedies pursuant to
Section 6(c) and the Employee thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the Employee.
(c) The Employee shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than 10 business days after
the Employee is informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The Employee shall not pay
such claim prior to the expiration of the 30-day period following the date on which it gives such
notice to the Company (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Employee in writing prior to the
expiration of such period that it desires to contest such claim, the Employee shall:
(1) give the Company any information reasonably requested by the Company relating to such
claim,
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(2) take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the Company,
(3) cooperate with the Company in good faith in order effectively to contest such claim, and
(4) permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and shall indemnify and
hold the Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such representation and payment
of costs and expenses. Without limitation on the foregoing provisions of this Section 6(c), the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either
direct the Employee to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and the Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that if the Company directs the Employee to pay
such claim and xxx for a refund, the Company shall advance the amount of such payment to the
Employee, on an interest-free basis and shall indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with respect to which such contested amount
is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s
control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Employee shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by the Company pursuant to
Section 6(c), the Employee becomes entitled to receive any refund with respect to such claim, the
Employee shall (subject to the Company’s complying with the requirements of Section 6(c)) promptly
pay to the Company the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by the Employee of an amount advanced by
the Company pursuant to Section 6(c), a determination is made that the Employee shall not be
entitled to any refund with respect to such claim and the Company does not notify the Employee in
writing of its intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be required to be repaid
and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
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7. Confidential Information. The Employee shall hold in a fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data relating to the Company or
any of its affiliated companies, and their respective businesses, which shall have been obtained by
the Employee during the Employee’s employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the Employee or
representatives of the Employee in violation of this Agreement). After termination of the
Employee’s employment with the Company, the Employee shall not, without the prior written consent
of the Company or as may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those designated by it.
8. Successors. (a) This Agreement is personal to the Employee and without the prior written
consent of the Company shall not be assignable by the Employee otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by
the Employee’s legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
9. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia, without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions hereof and shall have no force or effect.
This Agreement may not be amended or modified otherwise than by a written agreement executed by
the parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid
If to the Employee:
To the Employee’s most recent home address as filed with the Company
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If to the Company:
Total System Services, Inc.
P. O. Xxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
P. O. Xxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
(e) The Employee’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right the Employee or the Company may have
hereunder, including, without limitation, the right of the Employee to terminate employment for
Good Reason pursuant to Section 3 of this Agreement, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(f) The Employee and the Company acknowledge that, except as may otherwise be provided under
any other written agreement between the Employee and the Company, the employment of the Employee by
the Company is “at will” and, subject to Section 1(a) hereof, prior to the Change of Control Date,
the Employee’s employment may be terminated by either the Employee or the Company at any time prior
to the Change of Control Date, in which case the Employee and Company shall have no further rights
under this Agreement. In addition, in the event Employee’s employment is terminated as a result of
Employee’s death or Disability, Employee shall have no further rights under this Agreement. From
and after the Effective Date this Agreement shall supersede any other agreement between the parties
with respect to the subject matter hereof.
(g) This Agreement cancels and supercedes any and all previous change of control agreements
between Employee and Company (including without limitation all Company affiliates and
subsidiaries).
(h) This Agreement is executed in two counterparts, each of which shall be deemed an original
and together shall constitute one and the same agreement, with one counterpart being delivered to
each party hereto.
(i) To the extent this Agreement is subject to Section 409A of the Code, Employee and the
Company intend for all payments under this Agreement to comply with such section, and this
Agreement shall, to the extent practical, be operated and administered to effect such intent. To
the extent necessary to avoid adverse tax consequences under Section 409A of the Code,
the timing of any payment under this Agreement shall be delayed six months and one day in a
manner consistent with Section 409A(a)(2)(B)(i) of the Code.
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IN WITNESS WHEREOF, the Employee has hereunto set the Employee’s hand and, pursuant to the
authorization from its Board of Directors, the Company has caused these presents to be executed in
its name on its behalf, all being done in duplicate originals, with one original being delivered to
each party hereto, all as of the day and year first above written.
| [Employee] TOTAL SYSTEM SERVICES, INC. |
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| By: | ||||
| Title: | ||||
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