Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS
AGREEMENT (the
"Agreement") is
entered into the 31st day of December
2008, between DST
Technologies, Inc., a
Missouri corporation
("Company") and
Thomas Abraham ("Employee").
In
consideration of the promises and mutual covenants contained herein and
intending to be legally bound hereby, the parties agree as
follows:
1.
EMPLOYMENT.
This Agreement amends and restates the parties' prior
Employment Agreement entered into February 12, 2007 ("Effective
Date"). Employee
expressly consents
to be bound by the
provisions
of this Agreement for the
benefit of Company and
of any subsidiary
or affiliate of the Company or DST
Systems, Inc. ("DST")
to whose employ Employee may be transferred, without the
necessity that this Agreement be resigned at the time of such
transfer. Employee
shall serve as Group
Chief Executive-DST International and have the duties,
authority and
responsibilities as Company or DST International may from time
to
time prescribe or request. From time to time, Company or DST International
and
Employee may mutually
agree that Employee
shall serve in a role
other than as
set forth above. Employee further agrees that while employed by
Company, he will
devote substantially
all of his working time and efforts to the business of the
Company, DST International and their respective affiliates.
Except as
otherwise
provided in this Agreement, Employee acknowledges and agrees that
Employee has
no rights to separation pay.
2.
TERM. Employee's employment shall continue under the terms of this
Agreement through
February 1, 2010
unless earlier
terminated
as provided in
Paragraph 4. Such term shall automatically extend for additional one year
terms
on each February 1st
thereafter unless
Company or Employee
provides written
notice to the other that the term of the Agreement is not to be
further extended
or the Agreement is terminated earlier than the next renewal date
as provided in
Paragraph 4.
3.
COMPENSATION AND BENEFITS.
3.1
Compensation.
During the
period of Employee's employment
hereunder, Company
shall pay Employee for the performance of his duties under
this Agreement
an annual base salary
of Three Hundred
Thousand and no/100's
dollars ($300,000)
payable in accordance with Company's policies and subject to
normal withholdings and to adjustment from time to time as agreed
by the parties
(the "Base Salary").
3.2 Incentive Plan. Employee shall be eligible to participate in a
DST
annual incentive award program ("Program") beginning, on a prorata basis, with
the 2007 performance year of any such applicable Program,
and under such
terms,
as determined from
time to time by the DST Board of Directors ("DST Board") or
the Compensation
Committee or other appropriate committee of the DST Board (the
"DST Compensation
Committee"). Payment
to Employee of an annual bonus ("Annual
Incentive") may depend on achievement of DST International, DST or other goals
as the DST Compensation Committee determines, including without limitation a
combination of DST
International, DST or
other goals. Subject
to the terms of
the Program, Employee's Threshold, Target and Maximum opportunity
levels (if and
to the extent
applicable
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under the Program
structure upon which
Employee's Annual
Incentive is
based)
shall be the following
percentages
of Base Salary as of
the beginning of each
year:
Threshold
Target
Maximum
---------
------
-------
50%
100%
150%
Any payout
upon goal achievement may consist of any combination of cash,
deferred cash or
other award components selected by the DST Compensation
Committee. Employee
understands that the
Company's board, the DST Board or the
DST Compensation
Committee may change, revoke or terminate a Program or
Employee's
participation therein
at any time; provided that, while the Program
is in effect, Employee's Threshold, Target and Maximum Annual Incentive
percentages (if and to the extent applicable under the Program structure upon
which Employee's
Annual Incentive is based) will not be reduced below the
percentages shown above. The terms of Employee's participation in a Program are
established by the
Company's board, the DST Board, or the DST Compensation
Committee and not by this Agreement. The actual amount of any Annual
Incentive
earned will be based upon meeting specific corporate or business unit goals
set
in accordance with the Program.
3.3 Employee Benefits.
3.3.1
Equity Plan
Participation.
Employee shall be
entitled to
participate in the DST
Systems, Inc. 2005 Equity Incentive Plan (the "2005
Plan") in accordance
with the terms thereof, at a level consistent with DST's
practice regarding awards to senior executive officers excluding
benefits unique
to DST contracts with the Chief Executive Officer and Chief Operating Officer
and taking into account Exhibit A hereto (Expatriate Assignment
Detail). Awards
under the 2005
Plan are granted in the discretion of the DST Board or DST
Compensation Committee or other appropriate committee of the DST
Board.
3.3.2 Incentive,
Savings and Retirement
Plans. In addition to
Base Salary and an Annual Incentive, Employee shall be entitled to
participate
during his employment hereunder in all incentive, savings and retirement plans,
practices, policies
and programs, whether or not qualified under Section 401(a)
of the Internal
Revenue Code of 1986,
as amended (the
"Code"), that are
from
time to time
applicable to other senior executives of DST in accordance with
their terms as in effect from time to time.
3.3.3 Welfare
Benefits. During his
employment, Employee
and/or
his family, as the case may be, shall be eligible for participation
in and shall
receive all benefits
under welfare benefit plans, practices, policies and
programs provided by DST (including medical, prescription, dental, disability,
salary continuance,
employee life, dependent life, accidental death and travel
accident insurance
plans and programs) generally applicable to other senior
executives of DST in
accordance
with their terms
(including
limitations
on
eligibility) as in
effect from time to time. DST reserves the right to
change,
revoke or terminate any welfare benefit plan, practice, policy or
program at any
time.
3.3.4 Fringe Benefits.
During his employment,
Employee shall be
entitled to
fringe benefits applicable to other senior executives of DST
excluding benefits
unique
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to DST contracts with the Chief Executive Officer and Chief Operating Officer
and taking into account Exhibit B hereto (Expatriate Benefits).
3.3.5 Vacation. During his employment, Employee shall be
entitled
to paid vacation time in accordance with DST International plans, practices,
policies, and
programs, but in no event shall such
vacation time be less than
four weeks per calendar year.
3.3.6 Expenses. During his employment, Employee shall be
entitled
to receive prompt reimbursement for all ordinary and necessary
business expenses
incurred by Employee, upon the receipt by Company of an accounting
in accordance
with Company practices, policies and procedures.
3.3.7 The DST Systems,
Inc. Expatriate
Assignment Program shall
apply to Employee's
assignment to work in
the U.K. The
assignment detail
set
forth in Exhibit A shall govern the assignment.
4.
TERMINATION.
4.1 Death. Employee's
employment under this Agreement shall terminate
upon Employee's
death and Employee's estate (or his beneficiary, as may be
appropriate) shall be entitled to receive (i) an amount equal to
all Base Salary
earned and accrued to the date of Employees death, to the extent theretofore
unpaid; and (ii) any
other benefits
payable upon death under any applicable
employee benefit plan
in which Employee
participated at the date of his death.
Except as provided under this Agreement or under any applicable
employee benefit
plan, all other
obligations of Company under this Agreement shall terminate as
of the date of Employee's death during employment.
4.2 Disability.
If Company
determines
that Employee is unable to
perform his duties under this Agreement because of his "disability" as defined
by or determined
in accordance with the Rules and Procedures of the DST
Compensation
Committee, Company
may terminate Employee's employment. Such
termination shall be
effective as of the date determined by Company pursuant to
Company procedures,
and Employee shall be entitled to receive (i) an
amount
equal to all Base Salary earned and accrued to the date of
termination,
to the
extent theretofore
unpaid; and (ii) any other benefits payable upon such
disability under
any applicable employee benefit plan in which Employee
participated at the time of termination. Except as provided under
this Agreement
or under any applicable employee benefit plan, all other
obligations of Company
under this Agreement shall terminate as of the date of such
termination.
4.3 Voluntary.
Employee's
employment
under this Agreement shall
terminate upon
Employee's voluntary
termination of
employment. Company
shall
have no further
obligations under this
Agreement,
except Employee shall be
entitled to receive (i) within thirty (30) days after the date of
termination,
an amount equal to all Base Salary earned and accrued to the date of
termination, to the
extent theretofore
unpaid, and (ii) such other benefits to
which Employee is
entitled under any
employee benefit plan
in which Employee
participated at the time of termination. Except as provided under
this Agreement
or under any applicable employee
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<PAGE>
benefit plan,
all other obligations of Company under this Agreement shall
terminate as of the date of such termination.
4.4 For Cause by Company. Company may terminate this Agreement and
Employee's employment
"for cause"
immediately
upon notice to
Employee. For
purposes of this Agreement, termination "for cause" shall mean
termination based
upon any one or more of the following:
(a) Any material
breach of this
Agreement by Employee
which is not,
or cannot be, cured (in each case in the sole judgment of the
DST
Board) within
thirty (30) days after written notice of such
breach to Employee;
(b) Employee's
dishonesty involving Company, DST International or any
other DST affiliate;
(c) Gross negligence or willful misconduct in the performance of
Employee's duties as determined in good faith by the DST Board;
(d) Willful failure by
Employee to follow reasonable instructions of
the DST Board or any officer to whom Employee reports concerning
the operations or business of Company, DST International or any
other DST affiliate;
(e) Employee's fraud
or criminal activity; or
(f) Embezzlement or
misappropriation by Employee.
4.5 Other Than for Cause by Company. Company may terminate
Employee's
employment under this
Agreement at any time without Cause by giving written
Notice of Termination to Employee. If Company terminates Employee's employment
without Cause, Company
shall have the
obligations set forth
in this Paragraph
4.5; provided,
however, that notwithstanding any other provision of this
Agreement, the
obligations in this Paragraph shall not apply, unless Employee
executes a general release in favor of Company, its affiliates and
subsidiaries.
Within seventy-five
(75) days after
termination as
provided in this Paragraph
4.5, Company shall pay
to Employee a lump sum amount equal to twenty-four (24)
months of the annual Base Salary at the rate in effect immediately
prior to such
termination without Cause, which amount shall be separation pay.
For twenty-four
(24) months
following termination as provided in this Paragraph 4.5 (the
"Period"), if Employee
elects continued group
medical coverage for himself and
his eligible dependents pursuant to COBRA, Company shall pay for such
continued
coverage for the lesser of the COBRA continuation period or the duration of the
Period, with the same
deductible and out-of-pocket expenses as apply to active
employees (and their
eligible dependents) from time to time during the
COBRA
continuation coverage
period, and monthly
reimburse Employee for the cost of
premiums for health plan benefits comparable to such benefit plans
provided to
Employee at the
time of termination of active employment for the period
beginning on the
expiration of COBRA
continuation
coverage and ending on
the
last day of the
Period. Upon termination without Cause, if Employee had
participated in DST's
officer life
insurance program, Company shall monthly
reimburse Employee
for the cost of
premiums for comparable life insurance
benefits ending on the
last day of the Period. Notwithstanding the foregoing,
any life, health or other reimbursement obligation set forth in this
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<PAGE>
subparagraph shall
lapse as of the date comparable coverage in connection with
other employment is
made available to Employee regardless of whether Employee
participates in such
alternate coverage
program. The Company shall reimburse
Employee for any
federal, state and local income taxes due with respect to
amounts paid hereunder for COBRA continuation coverage or for the
cost of health
or life insurance. The
terms and conditions of this subparagraph shall continue
until the end of the Period notwithstanding the death or
disability of Employee
during the Period. For avoidance of doubt, neither termination of
employment for
disability nor assignment or deemed assignment of this Agreement to
a subsidiary
or affiliate of Company or DST shall be treated as a termination
without cause.
Employee shall
receive, on the payment due date as
provided in the DST Annual
Incentive Program, any Annual Incentive earned for the performance
year in which
Employee's employment
terminated; provided,
however, that such
award shall be
prorated to reflect
only the portion of
such performance
year that precedes
Employee's termination. To the extent required by Code Section 409A
and guidance
issued thereunder,
such award shall be deferred in accordance with any
applicable deferral
requirements
and elections in place with respect to
such
award and, to the
extent deferred,
such award
shall be paid
pursuant to the
terms of deferral
procedures in effect with respect to the DST Annual Incentive
Program from time to
time. Notwithstanding
the receipt during the Period of
separation pay as provided herein and the benefits that are
generally
available
to executive
employees of DST during the Period,
(a) Employee shall not be
entitled to accrue or
receive such
benefits during the Period except as set
forth herein, and (b) any contributions and benefits under
applicable plans with
respect to the year of termination shall be based solely upon
compensation paid
to Employee
for periods prior to termination. In the year of termination,
Employee shall be
entitled to
participate in any qualified plan made available
to Company employees
only if the Employee meets all requirements of such plans
for participation in such year.
4.6 Employee's
Duties Upon
Termination.
Upon termination of this
Agreement by Company
or Employee for any
reason, Employee
shall immediately
return to Company all Proprietary Information (as defined in
Paragraph 6) which
exists in tangible
form and shall sign such written resignations from all
positions as an
officer, director or member of any committee or board of
Company, DST
International,
DST or DST subsidiary or affiliate as may be
requested by Company, DST international, DST or DST subsidiary or affiliate
and
such other documents and papers relating to Employee's employment,
benefits and
benefit plans as any such entity may reasonably request.
5.
CONTINUATION OF EMPLOYMENT UPON CHANGE IN CONTROL.
5.1 Continuation Of Employment. Subject to the terms and conditions
of
this Paragraph
5, in the event of a
Change in Control
of DST (as
defined in
Paragraph 5.3) at any time during Employee's employment hereunder,
Employee will
remain in the employ
of the Company
for a period of an
additional
three (3)
years from the date of
such Change
in Control of DST (the "Control Change
Date"). In the event
of a Change in Control
of DST, subject to the terms and
conditions of this
Paragraph 5, Company shall, for the three (3)-year period
(the "Three-Year
Period") immediately following the Control Change Date,
continue to employ
Employee at not less than the executive capacity Employee
held immediately
prior to the Change in
Control of DST. During
the Three-Year
Period, Company shall
continue to pay Employee
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salary on the same
basis, at the same
intervals,
and at a rate not less
than
that, paid to Employee at the Control Change Date.
5.2 Benefits. During the Three-Year Period, Employee shall be
entitled
to participate, on the
basis of his Employee position, in each of the following
plans (together, the
"Specified Benefits") in existence, and in accordance with
the terms thereof, at the Control Change Date:
(a) any incentive
compensation plan;
(b) any benefit plan,
and trust fund associated therewith, related to
(i) life, health,
dental, disability, or accidental death and
dismemberment insurance, (ii) profit sharing, thrift or
deferred
savings (including
deferred compensation, such as under Sec.
401(k) plans), (iii)
retirement or pension benefits, (iv) ERISA
excess benefits,
and (v) tax favored
employee stock
ownership
(such as under ESOP, TRASOP, TCESO or PAYSOP programs); and
(c) any other benefit
plans hereafter
made generally available to
employees at
Employee's
level or to the
employees of Company
generally;
or, in the alternative, DST or Company shall provide other
plans under which at
least equivalent
compensation and
benefits are available and in which Employee
continues to participate on a basis at least equivalent to his
participation in
the DST plans in
effect immediately prior to the Control Change Date. In
addition, the change in control provisions of the agreements and
plans governing
options, restricted
shares, deferred cash
and other equity or incentive awards
granted to Employee
under the 2005 Plan or
any other award plan
of DST or its
affiliates shall govern whether any such outstanding awards become exercisable
or payable or vest in
connection with a
change in control,
as defined in the
applicable agreement or plan.
5.3 Change in Control
of DST. For purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if:
(a) the Incumbent Directors cease for any reason to
constitute at
least seventy-five
percent (75%) of the directors of DST then
serving;
(b) any "person" (as
such term is used in Sections 13(d) and 14(d)(2)
of the Securities
Exchange Act of 1934 (the "Exchange Act"))
other than DST or any
majority-owned
subsidiary of DST,
or an
employee benefit plan of DST or of any majority-owned subsidiary
of DST shall have
become the "beneficial
owner" (as defined
in
Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities of DST
representing
twenty percent (20%) or more
(calculated in
accordance with Rule 13d-3) of the combined voting
power of DST'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
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Rule 12b-2 under the Exchange Act) to obtain and exercise
control
over the management and policies of DST;
(c) a Reorganization Transaction is consummated, other than a
Reorganization Transaction which results in the Voting
Securities
of DST 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
(d) the stockholders
of DST approve a plan of complete liquidation of
DST, 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.
For
purposes of this
definition, the
following terms have the meaning set
forth below:
(a) "Incumbent
Directors" means (i) an individual who was a member of
the DST Board on May 10, 2005 (effective date of the 2005
Plan);
or (ii) an individual whose election, or nomination for election
by DST's stockholders, was approved by a vote of at least
seventy-five percent
(75%) of the members
of the DST Board then
still in office who were members of the DST Board on such
effective date;
or (iii) individuals whose election, or
nomination for election by DST's stockholders, was approved by a
vote of at least seventy-five percent (75%) of the members of
the
DST Board then
still in office
who were elected in the manner
described in (i) or (ii) 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.
(b) "Related Party"
means (i) a majority-owned subsidiary of DST; or
(ii) an employee or group of employees of DST or of any
majority-owned
subsidiary of DST; or
(iii) an employee
benefit
plan of DST or of any majority-owned subsidiary of DST; or (iv)
a
corporation owned
directly or indirectly by the stockholders of
DST in substantially
the same proportion as their ownership
of
the voting power of Voting Securities of DST.
(c) "Reorganization
Transaction"
means a merger, reorganization,
consolidation, or
similar transaction or a sale of all or
substantially all of
DST'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 DST immediately
prior
to the sale.
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(d) "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.
5.4 Termination After Control Change Date. Notwithstanding any other
provision of this
Paragraph 5, at any time after the Control Change Date,
Company may,
with approval of the DST Board, terminate the employment of
Employee (the "Termination"), but within five (5) days after the
Termination it
shall pay to Employee
his full Base Salary
through the Termination, to the
extent not theretofore
paid, plus a lump sum amount (the
"Special Severance
Payment") equal to the
product of his annual
Base Salary multiplied by the
number of years and any portion thereof remaining in the Three-Year
Period or,
if the balance of the Three-Year Period after Termination is less
than one year,
for a period of one year from the Control Change Date (the
"Extended Period").
Specified Benefits
to which Employee was entitled immediately prior to
Termination shall
continue until the end of the Three-Year Period or if
applicable, the
Extended Period;
provided that: (a) if any plan pursuant to
which Specified Benefits are provided immediately prior to