EXHIBIT 10.30
CHECKFREE
CORPORATION
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT is made this 22nd day of December, 2008, (the
“Agreement”) between CheckFree Corporation
(“CheckFree”), a Delaware corporation, and
Peter J. Kight (the “Executive”).
RECITALS
A. CheckFree
and the Executive entered into an employment agreement on
May 1, 1997.
B. Executive
is currently employed as an executive of CheckFree and its
consolidated subsidiaries (individually the
“Subsidiary” and collectively the
“Subsidiaries”) (CheckFree and the Subsidiaries are
hereinafter collectively referred to as the
“Company”).
C. The
parties desire to amend and restate the employment agreement to
comply with the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and to
eliminate certain historic provisions that are no longer
applicable, on the terms and conditions stated herein.
STATEMENT OF AGREEMENT
In consideration of the foregoing,
and of Executive’s continued employment, the parties agree as
follows:
1.
Employment . The Company hereby employs Executive and
Executive accepts such employment upon the terms and conditions
hereinafter set forth to become effective on May 1, 1997 (the
“Effective Time”).
2.
Duties .
(a) Executive
shall be employed: (i) to serve as Chairman, President, and
Chief Executive Officer, and to serve in similar capacities for
each of the Subsidiaries, if so elected, subject to the authority
and direction of the Board of Directors of CheckFree or the
Subsidiary, as the case may be; and (ii) to perform such other
duties and responsibilities similar to those performed by Executive
prior hereto and exercise such other authority, perform such other
or additional duties and responsibilities and have such other or
different title (or have no title) as the Board of Directors of
CheckFree or the Subsidiary may, from time to time,
prescribe.
(b) So long
as employed under this Agreement, Executive agrees to devote full
time and efforts exclusively on behalf of the Company and to
competently, diligently and effectively discharge all duties of
Executive hereunder. Executive shall not be prohibited from
engaging in such personal, charitable, or other nonemployment
activities as do not interfere with
full time employment hereunder and
which do not violate the other provisions of this Agreement.
Executive further agrees to comply fully with all reasonable
policies of the Company as are from time to time in
effect.
3.
Compensation . As full compensation for all services
rendered to the Company pursuant to this Agreement, in whatever
capacity rendered, the Company shall pay to Executive during the
term hereof a minimum base salary at the rate of $300,000 per year
(the “Basic Salary”), payable monthly or in other more
frequent installments, as determined by the Company. The Basic
Salary shall increase to $375,000 on July 1, 1997, and
thereafter may be increased, but not decreased, from time to time,
by the Board of Directors. Executive will be entitled to receive
incentive compensation pursuant to the terms of plans adopted by
the Board of Directors from time to time.
4.
Business Expenses . The Company shall promptly pay directly,
or reimburse Executive for, all business expenses to the extent
such expenses are paid or incurred by Executive during the term of
employment in accordance with Company policy in effect from time to
time and to the extent such expenses are reasonable and necessary
to the conduct by Executive of the Company’s business and
properly substantiated.
5. Fringe
Benefits . During the term of this Agreement and
Executive’s employment hereunder, the Company shall provide
to Executive such insurance, vacation, sick leave and other like
benefits as are provided from time to time.
6. Term;
Termination .
(a) The
Company shall employ the Executive, and the Executive accepts such
employment, for an initial term commencing on the date of this
Agreement and ending on June 30, 2002. Thereafter, this
Agreement shall be extended automatically on each July 1 for
an additional twelve-month period. Executive’s employment may
be terminated at any time as provided in this Section 6. For
purposes of this Section 6, “Termination Date”
shall mean the date on which any notice period required under this
Section 6 expires or, if no notice period is specified in this
Section 6, the effective date of the termination referenced in
the notice.
(b) The
Company may terminate Executive’s employment without cause
upon giving 30 days’ advance written notice to
Executive. If Executive’s employment is terminated without
cause under this Section 6(b), the Company will (A) pay
Executive the earned but unpaid portion of Executive’s Basic
Salary through the Termination Date, (B) pay Executive a lump
sum payment equal to two times the Executive’s Basic Salary
(the “Severance Payment”), (C) pay Executive any
incentive compensation under and consistent with plans adopted by
the Company prior to the Termination Date until the second
anniversary of the Termination Date (the “Severance
Period”), and (D) provide reasonable executive-level
outplacement services by a firm selected and contracted by the
Company for up to six months following the Termination Date (the
“Outplacement Services”); provided, however, if
Executive accepts other employment during the Severance Period, the
Executive must repay to the Company an amount equal to his
Severance Payment multiplied by a fraction, the numerator of which
equal to the number of months remaining in the Severance Period and
the denominator of which is 24, and the Company shall
cease paying any incentive
compensation. The amount payable under clause (B) shall be
paid to Executive in one lump sum on the first day of the seventh
month following the month in which the Executive’s Separation
from Service occurs, without interest thereon; provided that, if on
the date of the Executive’s Separation from Service, neither
the Company nor any other entity that is considered a
“service recipient” with respect to the Executive
within the meaning of Code Section 409A has any stock which is
publicly traded on an established securities market (within the
meaning of Treasury Regulation Section 1.897-1(m)) or
otherwise, then such payment shall be paid to the Executive in a
lump sum within thirty (30) business days after the
Executive’s Separation from Service. For purposes
hereof,
(i) the term
“Separation from Service” means the Executive’s
Termination of Employment, or if the Executive continues to provide
services following his or her Termination of Employment, such later
date as is considered a separation from service from the Company
and its 409A Affiliates within the meaning of Code
Section 409A. Specifically, if the Executive continues to
provide services to the Company or a 409A Affiliate in a capacity
other than as an employee, such shift in status is not
automatically a Separation from Service;
(ii) the term
“409A Affiliate” means each entity that is required to
be included in the Company’s controlled group of corporations
within the meaning of Section 414(b) of the Code, or that is
under common control with the Company within the meaning of
Section 414(c) of the Code; provided, however, that the
phrase “at least 50 percent” shall be used in place of
the phrase “at least 80 percent” each place it
appears therein or in the regulations thereunder; and
(iii) the
Executive’s “Termination of Employment” shall be
presumed to occur when the Company and the Executive reasonably
anticipate that no further services will be performed by the
Executive for the Company and its 409A Affiliates or that the level
of bona fide services the Executive will perform as an employee of
the Company and its 409A Affiliates will permanently decrease to no
more than 20% of the average level of bona fide services performed
by the Executive (whether as an employee or independent contractor)
for the Company and its 409A Affiliates over the immediately
preceding 36-month period (or such lesser period of services).
Whether the Executive has experienced a Termination of Employment
shall be determined by the Employer in good faith and consistent
with Section 409A of the Code. Notwithstanding the foregoing,
if the Executive takes a leave of absence for purposes of military
leave, sick leave or other bona fide reason, the Executive will not
be deemed to have experienced a Termination of Employment for the
first six (6) months of the leave of absence, or if longer,
for so long as the Executive’s right to reemployment is
provided either by statute or by contract, including this
Agreement; provided that if the leave of absence is due to a
medically determinable physical or mental impairment that can be
expected to result in death or last for a continuous period of not
less than six (6) months, where such impairment causes the
Executive to be unable to perform the duties of his or her position
of employment or any substantially similar position of employment,
the leave may be extended by the Employer for up to 29 months
without causing a Termination of Employment.
(c) The
Company may terminate Executive’s employment upon a
determination by the Company that “good cause” exists
for Executive’s termination and the
Company serves written notice of
such termination upon Executive. As used in this Agreement, the
term “good cause” shall refer only to any one or more
of the following grounds:
(i) commission of a
material and substantive act of dishonesty, including, but not
limited to, misappropriation of funds or any property of the
Company;
(ii) engagement in
activities or conduct clearly injurious to the best interests or
reputation of the Company which in fact result in material and
substantial injury to the Company;
(iii) refusal
to perform his assigned duties and responsibilities after receipt
by Executive of written detailed notice and reasonable opportunity
to cure;
(iv) gross
insubordination by Executive, which shall consist only of a willful
refusal to comply with a lawful written directive to Executive
issued pursuant to a duly authorized resolution adopted by the
Company;
(v) the clear
violation of any of the material terms and conditions of this
Agreement or any written agreement or agreements Executive may from
time to time have with the Company (following 30-days’
written notice from the Company specifying the violation and
Executive’s failure to cure such violation within such 30-day
period);
(vi) Executive’s
substantial dependence, as determined by the Board of Directors of
the Company, on alcohol or any narcotic drug or other controlled or
illegal substance which materially and substantially prevents
Executive from performing his duties hereunder; or
(vii) the
final and unappealable conviction of Executive of a crime which is
a felony or a misdemeanor involving an act of moral turpitude, or a
misdemeanor committed in connection with his employment by the
Company, which causes the Company a substantial
detriment.
In the event of a termination under
this Section 6(c), the Company will pay Executive the earned
but unpaid portion of Executive’s Basic Salary through the
Termination Date. If any determination of substantial dependence
under Section 6(c)(vi) is disputed by the Executive, the
parties hereto agree to abide by the decision of a panel of three
physicians appointed in the manner as specified in
Section 6(c) of this Agreement.
(d) Executive’s
employment shall terminate upon the death or permanent disability
of Executive. For purposes hereof, “permanent
disability,” shall mean the inability of the Executive, as
determined by the Board of Directors of CheckFree, by reason of
physical or mental illness to perform the duties required of him
under this Agreement for more than 180 days in any one year period.
Successive periods of disability, illness or incapacity will be
considered separate periods unless the later period of disability,
illness or incapacity is due to the same or related cause and
commences less than 180 days from the ending of the previous
period of disability. Upon a determination by the Board of
Directors of CheckFree that Executive’s employment shall be
terminated under this Section 6(d), the Board of Directors
shall give
Executive 30 days’ prior
written notice of the termination. If a determination of the Board
of Directors under this Section 6(d) is disputed by Executive,
the parties agree to abide by the decision of a panel of three
physicians. CheckFree will select a physician, Executive will
select a physician and the physicians selected by CheckFree and
Executive will select a third physician. Executive agrees to make
himself available for and submit to examinations by such physicians
as may be directed by the Company. Failure to submit to any
examination shall constitute a breach of a material part of this
Agreement.
(e) If a
“Change in Control” shall have occurred, Executive
shall be entitled to the benefits described below if his employment
is terminated following a Change in Control for other than good
cause as specified in Section 6(c), or Executive terminates
his employment upon making a good faith determination that,
following the Change in Control, Executive’s employment
status or employment responsibilities have been materially and
adversely affected thereby:
(i) Executive
shall be entitled to (A) the unpaid portion of his Basic
Salary plus credit for any vacation accrued but not taken and the
amount of any unpaid but earned incentive compensation or any other
benefit to which he is entitled under this Agreement through the
date of the termination, plus (B) two times Executive’s
“Average Annual Compensation.” For this purpose
“Average Annual Compensation” shall mean the average
annual compensation from the Company includible in
Executive’s gross income for the period consisting of
Executive’s most recent five taxable years ending before the
date on which the Change in Control occurs, exclusive of income
attributable to the exercise of stock options.
(ii) The
amount payable under Section 6(d)(i)(B) shall be paid to
Executive in one lump sum on the first day of the seventh month
following the month in which the Executive’s Separation from
Service occurs, without interest thereon; provided that, if on the
date of the Executive’s Separation from Service, neither the
Company nor any other entity that is considered a “service
recipient” with respect to the Executive within the meaning
of Code Section 409A has any stock which is publicly traded on
an established securities market (within the meaning of Treasury
Regulation Section 1.897-1(m)) or otherwise, then such payment
shall be paid to the Executive in a lump sum within thirty
(30) business days after the Executive’s Separation from
Service. For purposes hereof, the term “Separation from
Service” shall have the same meaning as ascribed to such term
in the Executive’s Key Executive Employment and Severance
Agreement with Fiserv, Inc.
(iii) The
Company shall maintain for Executive’s benefit until the
earlier of (y) 24 months after termination of employment
following a Change in Control, or (z) Executive’s
commencement of full-time employment with a new employer, all life
insurance, medical, health and accident, and disability plans or
programs in which Executive shall have been entitled to participate
prior to termination of employment following a Change in Control,
provided Executive’s continued participation is permitted
under the general terms of such plans and programs after the Change
in Control, subject to the following:
(A