EXHIBIT 10.19
(1) XXXXX XXXXX
(2) SS&C TECHNOLOGIES LIMITED
----------
COMPROMISE AGREEMENT
----------
AN AGREEMENT made the 31st day of October, 2006
BETWEEN:
(1) Xxxxx Xxxxx of 00 Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxx, XX000XX, Xxxxxx
Xxxxxxx ("You"); and
(2) SS&C Technologies Limited, Mercury House, Triton Court, 00 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx XX0X 0XX (the "Employer").
WHEREAS:
(A) You and the Employer have agreed that it is in their mutual best interest
to terminate their employment;
(B) Your employment with the Employer will terminate on 31 October 2006 (the
"Termination Date");
(C) You have been receiving independent advice from Xxxxxxx Xxxxxxxx, Archon
Solicitors, Xxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxx XX0X 0XX (the "Relevant
Independent Adviser"); and
(D) The Employer enters into this Agreement on its own behalf and as agent for
and on behalf of the parties against whom your claims are being compromised
in clause 3 below.
TERMS OF SETTLEMENT:
1. You will be paid your salary and benefits to the Termination Date net of
income tax and other deductions required by law.
2. The Company will pay you within 7 days of the Termination Date or receipt
of this compromise agreement signed by you whichever is later:-
a) a payment of L50,000, in lieu of three months notice, less a reduction
of L14,166.66 for reimbursement of mistaken payments;
b) a payment of L215.58 in lieu of the benefits you would have received
during your notice period;
c)a payment of L10,769.23 in respect of unused holiday accrued through the
Termination Date and holiday accruing during the notice period; and
d) a severance payment of L15,384.15.
The severance payment can be paid tax free pursuant to section 403-404 of
the Income Tax (Earnings and Xxxxxxxx) Xxx 0000. Payments identified in
Section 2 a) and c) will be paid less tax and employee national insurance
contributions.
3. The payments made by the Employer to you are in full and final settlement
of all or any claims you may have against the Employer, (or any Group
Company) or any of the
2
officers or employees of the Employer or any Group Company, whether such
claims arise out of your employment with the Employer, the termination of
your employment or otherwise, including but not limited to claims for
wrongful dismissal, unfair dismissal, discrimination on grounds of, or
related to, sex, race, disability, religion, belief, sexual orientation,
age, part-time or fixed term status, or harassment on any of these grounds,
breach of contract, unlawful deduction of wages, equal pay, a redundancy
payment and claims under the National Minimum Wage Xxx 0000, Working Time
Regulations 1998, the Maternity and Parental Leave Regulations 1999 or any
claim under European Union Law, or relating to the Employer's or any Group
Company's shares or securities, including, except as set out below, claims
relating to any share option scheme operated by or on behalf of the
Employer or any Group Company but excludes any claim for personal injury or
related to the enforcement of this Agreement. You have either raised the
claims prior to entering into this Agreement, or where such claims have not
been raised, you represent to the Employer and the Employer relies on this
representation in entering into this Agreement, that, having taken
independent legal advice, you are not aware of any facts or matters which
might give rise to any such claims. You confirm that you not aware of any
circumstances as at the date of this Agreement which would give rise to a
claim for personal injury. In relation to stock options, you currently hold
options subject to vesting under the Sunshine Acquisition Corporation 2006
Equity Incentive Plan (the "Plan"). None of these options are anticipated
to have vested by the Termination Date; those that have not vested by such
date will lapse.
4. You represent to the Employer that you have not yet been made any offer of
employment, consultancy, partnership, office or other remunerative work, or
that any such offer has been disclosed to the Employer. You likewise
represent that you have not committed any act of gross misconduct of which
the Employer is unaware and which, if disclosed, would have entitled the
Employer to summarily dismiss you.
5. The Employer will provide prospective employers upon request with a written
reference in the terms of the draft appearing at Schedule 2 and agrees to
answer questions from such prospective employers whether made orally or in
writing in a manner consistent with the tenor of the draft reference,
subject always to the Employer's obligations when providing information to
such third parties and provided that any request for a reference is made to
Xxxxxxx X. Xxxxx.
6. Following the Termination Date (i) you will do nothing to disparage the
Employer or any of its officers or employees or any other Group Company or
any of such Group Company's officers or employees; and (ii) the Employer
will do nothing to disparage you.
7. You agree that you will keep the terms of this Agreement confidential, and
will not disclose the same to any third party save as required by law and
in order to take professional advice in relation to the same and save that
nothing in this Agreement shall prevent you making a protected disclosure
within the meaning of the Employment Rights Xxx 0000 or from disclosing to
a new employer or recruitment consultant that you resigned from the
Company.
3
8 In consideration of L100, you may not at any time prior to or after
the Termination Date (except with the written permission of Xxxxxxx X.
Xxxxx) disclose to any third party, or make use of yourself (or in
conjunction with others), any of the Employer's trade secrets or other
Confidential Information:
8.1 For the purposes of this clause Confidential Information includes but
is not limited to:
(a) the Employer's marketing and business development plans;
(b) details of the Employer's products and services in the course of
development, including research and development reports and data;
(c) budgets, management accounts, bank account details and other
confidential financial data of the Employer;
(d) confidential business methods and processes and other information
relating to the running of the Employer's business which is not
in the public domain, including details of salaries, bonuses,
commissions and other employment terms applicable within the
Employer and other personal and sensitive personal data relating
to employees and customers of the Employer;
(e) personal information provided to the Employer by visitors to and
users of any of its web sites, including their names, addresses,
contact details, and requirements for the Employer's services or
for services;
(f) lists or records of customers and prospective customers of the
Employer in whatever medium this information is stored and the
requirements of those customers or the potential requirements of
prospective customers for any of the Employer's products or
services;
(g) the terms on which the Employer does business with its customers,
suppliers and other third parties, including price lists and
pricing policies adopted by the Employer and the terms of any
partnership, joint venture or other form of commercial
co-operation or agreement the Employer enters into with any third
party;
(h) details of any confidential, proprietary software used or
developed by the Employer, and other confidential information
relating to the Employer's use of technology, including source
and object code;
(i) details of litigation involving the Employer whether proposed,
threatened or in progress;
(j) any document marked "confidential" or which you are aware is
confidential or which you might reasonably expect the Employer
would regard as confidential; and
4
(k) any other information which the Employer is bound by an
obligation of confidence owed to a third party, in particular the
content of discussions or communications with any prospective
business partner.
8.2 The restrictions in this clause 8 will, however, cease to apply to
information which is required to be disclosed by law, or by a court or
tribunal of competent jurisdiction or which becomes available (other
than by reason of your default) to the public generally without
requiring a significant expenditure of labour, skill or money.
8.3 You hereby confirm that you have returned to the Employer all property
in your possession custody or control which belongs to the Employer or
relates to its affairs, including but not limited to your office keys,
mobile phone, all other equipment, all documents, records, notebooks,
notes, memoranda, customer and price lists in whatever medium they
have been stored (including on your personal computer or mobile
telephone), computer software and computer hardware, research reports
as well as all documents or works in which the Employer owns the
copyright or other intellectual property rights or which relate to the
Employer's business. You warrant that no copies of any of the above
property have been taken by you, or alternatively that such copies as
have been taken have been returned to the Employer.
8.4 In this clause 8 the term "the Employer" shall be deemed to include
any Group Company.
8.5 The provision in paragraph 8.1 shall be the only post-termination
restriction you will be bound by after the Termination Date, except
that you agree to abide by those non-solicitation provisions in clause
15.2 of your Contract of Employment with the Employer dated June 7,
2004, which are expressed to apply following the termination of your
employment.
8.6 You agree to make yourself available to be contacted by telephone
during normal office hours, upon reasonable notice, after the
Termination Date, to provide reasonable assistance with such ad hoc
matters and queries as may be required by the Employer or by any Group
Company.
9. Following the Termination Date you will not hold yourself out or permit
yourself to be held out as being employed by or connected with the Employer
or any Group Company.
10. You will indemnify the Employer and keep the Employer indemnified against
all tax and employee national insurance brought or levelled against the
Employer by HM Revenue & Customs (the "Revenue") in respect of the payments
made to you under this Agreement under paragraph 2 of this Agreement, other
than for any tax or employee national insurance contributions to be
deducted by the Employer. No payments will be made by the Employer to the
Revenue however without first notifying you of the position and giving you
a reasonable opportunity to resolve the matter with the Revenue directly.
If you fail to take up this opportunity, or a sum is still found due from
the Employer to the
5
Revenue notwithstanding your intervention, and the Employer makes payment
to the Revenue, the amount due from you under this indemnity shall fall due
forthwith upon your receiving a written demand from the Employer
accompanied by evidence that payment has been made.
11 By accepting the terms of this Agreement you will be deemed to resign on
the Termination Date from your position as a director of the Employer and
from all or any other office which you hold in the Employer and/or any
Group Company, which resignation, if requested, shall be in the form of
Schedule 1 to this Agreement. If you fail to do so promptly, you hereby
irrevocably appoint any person nominated by the Employer in your name and
on your behalf to sign and do any documents or things expedient to effect
such resignation.
12. For the avoidance of doubt if, contrary to the views of the parties, the
claims set out in clause 3 above have not been validly and lawfully
excluded by the provisions of this Agreement, and you institute legal
proceedings in respect of any of them, then all sums paid by or on behalf
of the Employer pursuant to this Agreement shall be immediately repayable
by you to the Employer as a debt, and no further sums shall be payable
under this Agreement and all benefits may be withdrawn forthwith.
13. You hereby warrant to the Employer that you have received independent legal
advice from the Relevant Independent Adviser, as to the terms and effects
of this Agreement under English law prior to your executing the same and in
particular, as to its effect on your ability to pursue any of the rights or
claims set out in clause 3 of the Agreement.
14. The Employer will pay your reasonable legal costs up to a maximum of L1000
plus VAT relating to the negotiation and preparation of this Agreement.
Payment of this sum will be made directly to the Relevant Independent
Adviser within 10 business days of receipt by the Employer (via their
solicitors, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP) of a copy of this
Agreement duly executed by you and a copy of the Relevant Independent
Adviser's Certificate duly signed by the Relevant Independent Adviser, and
provided that an invoice from the Relevant Independent Adviser stated to be
payable by or on behalf of the Employer has also been received.
15 The parties hereby acknowledge and agree that the conditions regulating
compromise agreements under section 203(3) of the Employment Rights Xxx
0000 under section 77(4A) of the Sex Discrimination Xxx 0000, section
72(4A) of the Race Relations Xxx 0000, section 288(2B) of the Trade Union
and Labour Relations (Consolidation) Xxx 0000, section 9(3) of the
Disability Discrimination Xxx 0000, Regulation 35(3) of the Working Time
Regulations 1998, section 49(4) of the National Minimum Wage Xxx 0000,
regulation 41(4) of the Transnational Information and Consultation of
Employee Regulations 1999, Regulation 9 of the Part-time Workers
(Prevention of Less Favourable Treatment) Regulations 2000, the Employment
Equality (Sexual Orientation) Regulations 2003, the Employment Equality
(Religion or Belief) Regulations 2003 and Schedule 5 Part I Paragraph 2 of
the Employment Equality (Age) Regulations 2006 are satisfied by the terms
of this Agreement.
6
16. In this Agreement, "Group Company" means any company which from time to
time is a subsidiary or a holding company of the Employer or a subsidiary
of such holding company and "subsidiary" and "holding company" have the
meanings attributed to them by section 736 of the Companies Xxx 0000.
17. This Agreement shall be construed in accordance with the law of England and
Wales and the parties submit to the exclusive jurisdiction of the English
Courts.
7
IN WITNESS WHEREOF the parties or their duly authorised representatives have set
their hands the day and year first above written.
SIGNED by the said )
Xxxxx Xxxxx ) /s/ Xxxxx Xxxxx
) ----------------------------------------
)
SIGNED by Xxxxxxx X. Xxxxx )
on behalf of THE EMPLOYER ) /s/ Xxxxxxx X. Xxxxx
) ----------------------------------------
Xxxxxxx X. Xxxxx )
Director
SS&C Technologies Limited
8
INDEPENDENT ADVISER'S CERTIFICATE
I, Xxxxxxx Xxxxxxxx of Archon Solicitors, HEREBY CERTIFY to the Employer that:
(a) I am instructed by Xxxxx Xxxxx (the "Employee").
(b) At the date hereof and at all times during which I have advised the
Employee on the subject matter of the Agreement I am and have been a
Relevant Independent Adviser as defined by section 203(3A) of the
Employment Rights Xxx 0000, section 77(4B) of the Sex Discrimination Xxx
0000, section 72(4B) of the Race Relations Xxx 0000, section 288(4) of the
Trade Union and Labour Relations (Consolidation) Xxx 0000, section 9(4) of
the Disability Discrimination Xxx 0000, section 35(4) of the Working Time
Regulations 1998, section 49(5) of the National Minimum Wage Xxx 0000, the
Employment Equality (Religion or Belief) Regulations 2003, the Employment
Equality (Sexual Orientation) Regulations 2003 and Schedule 5 Part I
Paragraph 2 of the Employment Equality (Age) Regulations 2006.
(c) I have given independent advice to the Employee as to the terms and effect
of the Agreement under English law prior to the Employee executing the same
and in particular, as to its effect on the Employee's ability to pursue any
of the rights or claims which are set out in clause 3 of the Agreement.
(d) When I gave the advice referred to in sub-paragraph (c) above there was in
force a contract of insurance or an indemnity provided for members of my
profession or my professional body covering the risk of a claim by the
Employee in respect of loss arising in consequence of that advice.
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
[SIGNATURE]
27/10/06
DATE
9
SCHEDULE 1
DRAFT LETTER OF RESIGNATION
The Board of Directors
[Name of Company]
Dear Sirs:
I hereby resign with immediate effect as a director of the above company and
confirm that I have no claim whatsoever outstanding against the Company in
respect thereof or otherwise howsoever save as set out in a compromise agreement
dated [__________].
Yours faithfully,
-------------------------------------
[Name of Employee]
10
SCHEDULE 2
Xxxxx Xxxxx was employed by SS&C Technologies between June 2004 and October 2006
where he held the position of Senior Vice President - International. In this
role he oversaw the company's activities outside of North America. During his
tenure the company enjoyed significant growth in both revenue and profitability
and we wish him all the best in his future endeavours.
11
