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Exhibit 10.1
FORM OF
AMENDED AND RESTATED KEY EXECUTIVE EMPLOYMENT AND
SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of December 22, 2008,
by and between Fiserv, Inc., a Wisconsin corporation (hereinafter
referred to as the "Company"), and
(hereinafter
referred to as the "Executive").
W I T N E S S E T H
WHEREAS, the Executive is employed by the Company and/or a
subsidiary of the Company (hereinafter referred to collectively as
the "Employer") in a key executive capacity and the
Executive’s services are valuable to the conduct of the
business of the Company;
WHEREAS, the Company desires to continue to attract and retain
dedicated and skilled management employees in a period of industry
consolidation, consistent with achieving the best possible value
for its shareholders in any change in control of the Company;
WHEREAS, the Company recognizes that circumstances may arise in
which a change in control of the Company occurs, through
acquisition or otherwise, thereby causing a potential conflict of
interest between the Company’s needs for the Executive to
remain focused on the Company’s business and for the
necessary continuity in management prior to and following a change
in control, and the Executive’s reasonable personal concerns
regarding future employment with the Employer and economic
protection in the event of loss of employment as a consequence of a
change in control;
WHEREAS, the Company and the Executive are desirous that any
proposal for a change in control or acquisition of the Company will
be considered by the Executive objectively and with reference only
to the best interests of the Company and its shareholders;
WHEREAS, the Executive will be in a better position to consider
the Company’s best interests if the Executive is afforded
reasonable economic security, as provided in this Agreement,
against altered conditions of employment which could result from
any such change in control or acquisition;
WHEREAS, the Executive possesses intimate knowledge of the
business and affairs of the Company and has acquired certain
confidential information and data with respect to the Company;
and
WHEREAS, the Company desires to insure, insofar as possible,
that it will continue to have the benefit of the Executive’s
services and to protect its confidential information and
goodwill.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties
hereto mutually covenant and agree as follows:
1. Definitions .
(a) 409A Affiliate . 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.
(b) Accrued Benefits . The term "Accrued
Benefits" shall include the following amounts, payable as described
herein: (i) all base salary for the time period ending with
the Termination Date; (ii) reimbursement for any and all
monies advanced in connection with the Executive’s employment
for reasonable and necessary expenses incurred by the Executive on
behalf of the Employer for the time period ending with the
Termination Date; (iii) any and all other cash earned through
the Termination Date and deferred at the election of the Executive
or pursuant to any deferred compensation plan then in effect;
(iv) notwithstanding any provision of any bonus or incentive
compensation plan applicable to the Executive, but subject to any
irrevocable deferral election then in effect, a lump sum amount, in
cash, of any bonus or incentive compensation that has been
allocated or awarded to the Executive for a fiscal year or other
measuring period under the plan that ends prior to the Termination
Date but has not yet been paid (pursuant to Section 5(f) or
otherwise); and (v) all other payments and benefits to which
the Executive (or in the event of the Executive’s death, the
Executive’s surviving spouse or other beneficiary) may be
entitled on the Termination Date as compensatory fringe benefits or
under the terms of any benefit plan of the Employer, excluding
severance payments under any Employer severance policy, practice or
agreement in effect on the Termination Date. Payment of Accrued
Benefits shall be made promptly in accordance with the
Company’s prevailing practice with respect to clauses
(i) and (ii) or, with respect to clauses (iii),
(iv) and (v), pursuant to the terms of the benefit plan or
practice establishing such benefits.
(c) Act . The term "Act" means the Securities Exchange
Act of 1934, as amended.
(d) Affiliate and Associate . The terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the
Act.
(e) Annual Cash Compensation . The term "Annual Cash
Compensation" shall mean the sum of (i) the Executive’s
Annual Base Salary (determined as of the time of the Change in
Control of the Company or, if higher, immediately prior to the date
the Notice of Termination is given) plus (ii) an amount equal
to (A) if the Executive has been employed by the Company for
at least 36 continuous months prior to the Change in Control of the
Company, the highest annual incentive bonus the Executive earned
with respect to any of the three fiscal years prior to the fiscal
year in which the Change in Control of the Company occurs, or
(B) if the Executive has not been employed by the Company for
at least 36 continuous months prior to the Change in Control of the
Company, the greater of (x) 60% of the Executive’s
Annual Base Salary as of the time of the Change in Control of the
Company or (y) the highest annual incentive bonus the
Executive earned with respect to any of the two fiscal years prior
to the fiscal year in which the Change in Control of the Company
occurs.
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(f) Beneficial Owner . A Person shall be
deemed to be the "Beneficial Owner" of any securities:
(i) which such Person or any of such Person’s Affiliates
or Associates has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially
own, (A) securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such
Person’s Affiliates or Associates until such tendered
securities are accepted for purchase, or (B) securities
issuable upon exercise of any rights issued pursuant to the terms
of any shareholder rights agreement that the Company may adopt at
any time before the issuance of such securities;
(ii) which such Person or any of such Person’s Affiliates
or Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined pursuant
to Rule 13d-3 of the General Rules and Regulations under the Act),
including pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security under
this clause (ii) as a result of an agreement, arrangement or
understanding to vote such security if the agreement, arrangement
or understanding: (A) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations under the Act and (B) is not
also then reportable on a Schedule 13D under the Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such
Person’s Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as described in clause
(ii) above) or disposing of any voting securities of the
Company.
(g) Cause . "Cause" for termination by the Employer of
the Executive’s employment shall be limited to (i) the
engaging by the Executive in intentional conduct not taken in good
faith that the Company establishes, by clear and convincing
evidence, has caused demonstrable and serious financial injury to
the Employer, as evidenced by a determination in a binding and
final judgment, order or decree of a court or administrative agency
of competent jurisdiction, in effect after exhaustion or lapse of
all rights of appeal, in an action, suit or proceeding, whether
civil, criminal, administrative or investigative;
(ii) conviction of a felony, as evidenced by binding and final
judgment, order or decree of a court of competent jurisdiction, in
effect after exhaustion of all rights of appeal, which
substantially impairs the Executive’s ability to perform his
duties or responsibilities; or (iii) continuing willful and
unreasonable refusal by the Executive to perform the
Executive’s duties or responsibilities, unless significantly
changed without the Executive’s consent.
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(h) Change in Control of the Company . A
"Change in Control of the Company" shall be deemed to have occurred
if an event set forth in any one of the following paragraphs shall
have occurred:
(i) any Person (other than (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or any of
its subsidiaries, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities or (D) a
corporation owned, directly or indirectly, by the shareholders of
the Company in substantially the same proportions as their
ownership of stock in the Company ("Excluded Persons")) is or
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or
its Affiliates after the date of this Agreement, pursuant to
express authorization by the Board that refers to this exception)
representing 20% or more of either the then outstanding shares of
common stock of the Company or the combined voting power of the
Company’s then outstanding voting securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors of the Company
then serving: (A) individuals who, on the date of this
Agreement constituted the Board and (B) any new director
(other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election
of directors of the Company) whose appointment or election by the
Board 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
still in office who either were directors on the date of this
Agreement, or whose appointment, election or nomination for
election was previously so approved (collectively the "Continuing
Directors"); provided, however, that individuals who are
appointed to the Board pursuant to or in accordance with the terms
of an agreement relating to a merger, consolidation, or share
exchange involving the Company (or any direct or indirect
subsidiary of the Company) shall not be Continuing Directors for
purposes of this Agreement until after such individuals are first
nominated for election by a vote of at least two-thirds (
2 /
3 ) of the then
Continuing Directors and are thereafter elected as directors by the
shareholders of the Company at a meeting of shareholders held
following consummation of such merger, consolidation, or share
exchange; and, provided further, that in the event the
failure of any such persons appointed to the Board to be Continuing
Directors results in a Change in Control of the Company, the
subsequent qualification of such persons as Continuing Directors
shall not alter the fact that a Change in Control of the Company
occurred; or
(iii) the shareholders of the Company approve a merger,
consolidation or share exchange of the Company with any other
corporation or approve the issuance of voting securities of the
Company in connection with a merger, consolidation or share
exchange of the Company (or any direct or indirect subsidiary of
the Company) pursuant to applicable stock exchange requirements,
other than (A) a merger, consolidation or share exchange which
would result in the voting securities of the
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Company outstanding immediately prior to such
merger, consolidation or share exchange continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) at least
50% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger, consolidation or share exchange, or
(B) a merger, consolidation or share exchange effected to
implement a recapitalization of the Company (or similar
transaction) in which no Person (other than an Excluded Person) is
or becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates after the date of this
Agreement, pursuant to express authorization by the Board that
refers to this exception) representing 20% or more of either the
then outstanding shares of common stock of the Company or the
combined voting power of the Company’s then outstanding
voting securities; or
(iv) the shareholders of the Company approve of a plan of
complete liquidation or dissolution of the Company or an agreement
for the sale or disposition by the Company of all or substantially
all of the Company’s assets (in one transaction or a series
of related transactions within any period of 24 consecutive
months), other than a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity at
least 75% of the combined voting power of the voting securities of
which are owned by Persons in substantially the same proportions as
their ownership of the Company immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control of the
Company" shall be deemed to have occurred if there is consummated
any transaction or series of integrated transactions immediately
following which the record holders of the common stock of the
Company immediately prior to such transaction or series of
transactions continue to own, directly or indirectly, in the same
proportions as their ownership in the Company, an entity that owns
all or substantially all of the assets or voting securities of the
Company immediately following such transaction or series of
transactions.
(i) Code . The term "Code" means the Internal Revenue
Code of 1986, including any amendments thereto or successor tax
codes thereof. Any reference to a particular provision of the Code
shall be deemed to include reference to any successor provision
thereto.
(j) Covered Termination . Subject to Section 2(b),
the term "Covered Termination" means any Termination of Employment
during the Employment Period where the Termination Date, or the
date Notice of Termination is delivered, is any date prior to the
end of the Employment Period.
(k) Employment Period . Subject to Section 2(b), the
term "Employment Period" means a period commencing on the date of a
Change in Control of the Company, and ending at 11:59 p.m. Central
Time on the third anniversary of such date.
(l) Good Reason . The Executive shall have "Good Reason"
for termination of employment in the event of:
(i) any breach of this Agreement by the Employer, including
specifically any breach by the Employer of the agreements contained
in Section 3(b), Section 4, Section 5, or
Section 6, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith that the Employer
remedies promptly after receipt of notice thereof given by the
Executive;
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(ii) any reduction in the Executive’s base
salary, percentage of base salary available as incentive
compensation or bonus opportunity or benefits, in each case
relative to those most favorable to the Executive in effect at any
time during the 180-day period prior to the Change in Control of
the Company or, to the extent more favorable to the Executive,
those in effect at any time during the Employment
Period;
(iii) the removal of the Executive from, or any failure to
reelect or reappoint the Executive to, any of the positions held
with the Employer on the date of the Change in Control of the
Company or any other positions with the Employer to which the
Executive shall thereafter be elected, appointed or assigned,
except in the event that such removal or failure to reelect or
reappoint relates to the termination by the Employer of the
Executive’s employment for Cause or by reason of disability
pursuant to Section 12;
(iv) a good faith determination by the Executive that there has
been a material adverse change, without the Executive’s
written consent, in the Executive’s working conditions or
status with the Employer relative to the most favorable working
conditions or status in effect during the 180-day period prior to
the Change in Control of the Company, or, to the extent more
favorable to the Executive, those in effect at any time during the
Employment Period, including but not limited to (A) a
significant change in the nature or scope of the Executive’s
authority, powers, functions, duties or responsibilities, or
(B) a significant reduction in the level of support services,
staff, secretarial and other assistance, office space and
accoutrements, but in each case excluding for this purpose an
isolated, insubstantial and inadvertent event not occurring in bad
faith that the Employer remedies within ten (10) days after
receipt of notice thereof given by the Executive;
(v) the relocation of the Executive’s principal place of
employment to a location more than 35 miles from the
Executive’s principal place of employment on the date 180
days prior to the Change in Control of the Company;
(vi) the Employer requires the Executive to travel on Employer
business 20% in excess of the average number of days per month the
Executive was required to travel during the 180-day period prior to
the Change in Control of the Company;
(vii) failure by the Company to obtain the Agreement referred to
in Section 17(a) as provided therein; or
(viii) any voluntary termination of employment by the Executive
where the Notice of Termination is delivered during the six
(6) months following the first six (6) months after the
Change in Control of the Company.
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(m) Person . The term "Person" shall mean
any individual, firm, partnership, corporation or other entity,
including any successor (by merger or otherwise) of such entity, or
a group of any of the foregoing acting in concert.
(n) Prorated Bonus . The term "Prorated Bonus" shall mean
an amount equal to the sum of the following with respect to each
contingent bonus or incentive compensation award made to the
Executive for all uncompleted periods as of the Termination Date:
(i) the value of such award, calculated as if the goals with
respect to such award had been attained (at the target level, if
applicable), multiplied by a fraction, the numerator of which is
the number of days that have elapsed from the first day of the
period to which the award relates to the Termination Date and the
denominator of which is the total number of days in the period to
which the award relates (without regard to the Termination Date),
reduced by (ii) any amounts previously paid with respect to
such award or that will be paid (without regard to this
Agreement).
(o) Retirement . The term "Retirement" means the
cessation of service as an employee of the Company and its
Affiliates for any reason other than death, disability (as provided
in Section 12), or termination for Cause, if at the time of
such cessation of service either (1) the Executive is age 60
and his age plus years of service for the Company and its
Affiliates is equal to or greater than 70, or (2) the
Executive is age 65 or older.
(p) Separation from Service . For purposes of this
Agreement, 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.
(q) Termination of Employment . For purposes of this
Agreement, 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.
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(r) Termination Date . Except as otherwise
provided in Section 2(b), Section 10(b), and
Section 17(a), the term "Termination Date" means (i) if
the Executive’s Termination of Employment is by the
Executive’s death, the date of death; (ii) if the
Executive’s Termination of Employment is by reason of
Retirement, the date of such retirement; (iii) if the
Executive’s Termination of Employment is by reason of
disability pursuant to Section 12, the earlier of 30 days
after the Notice of Termination is given or one day prior to the
end of the Employment Period; (iv) if the Executive’s
Termination of Employment is by the Executive voluntarily (other
than for Good Reason), the date the Notice of Termination is given;
and (v) if the Executive’s Termination of Employment is
by the Employer (other than by reason of disability pursuant to
Section 12) or by the Executive for Good Reason, the earlier
of 30 days after the Notice of Termination is given or one day
prior to the end of the Employment Period. Notwithstanding the
foregoing,
(A) If termination is for Cause pursuant to
Section 1(g)(iii) and if the Executive has cured the conduct
constituting such Cause as described by the Employer in its Notice
of Termination within such 30-day or shorter period, then the
Executive’s employment hereunder shall continue as if the
Employer had not delivered its Notice of Termination.
(B) If the Executive shall in good faith give a Notice of
Termination for Good Reason and the Employer notifies the Executive
that a dispute exists concerning the termination within the 15-day
period following receipt thereof, then the Executive may elect to
continue his or her employment during such dispute and the
Termination Date shall be determined under this paragraph. If the
Executive so elects and it is thereafter determined that Good
Reason did exist, the Termination Date shall be the earliest of
(1) the date on which the dispute is finally determined,
either (x) by mutual written agreement of the parties or
(y) in accordance with Section 22, (2) the date of
the Executive’s death or (3) one day prior to the end of
the Employment Period. If the Executive so elects and it is
thereafter determined that Good Reason did not exist, then the
employment of the Executive hereunder shall continue after such
determination as if the Executive had not delivered the Notice of
Termination asserting Good Reason and there shall be no Termination
Date arising out of such Notice. In either case, this Agreement
continues, until the Termination Date, if any, as if the Executive
had not delivered the Notice of Termination except that, if it is
finally determined that Good Reason did exist, the Executive shall
in no case be denied the benefits described in Section 9
(including a Termination Payment) based on events occurring after
the Executive delivered his Notice of Termination.
(C) Except as provided in Section 1(q)(B), if the party
receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination within the appropriate
period following receipt thereof and it is finally determined that
the reason asserted in such Notice of Termination did not exist,
then (1) if such Notice was delivered by the Executive, the
Executive will be deemed to have voluntarily terminated his
employment and the Termination Date shall
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be the earlier of the date 15 days after the
Notice of Termination is given or one day prior to the end of the
Employment Period and (2) if delivered by the Company, the
Company will be deemed to have terminated the Executive other than
by reason of death, disability or Cause.
2. Termination or Cancellation Prior to Change in Control
.
(a) Subject to Section 2(b), the Employer and the Executive
shall each retain the right to terminate the employment of the
Executive at any time prior to a Change in Control of the Company.
Subject to Section 2(b), in the event the Executive’s
employment is terminated prior to a Change in Control of the
Company, this Agreement shall be terminated and cancelled and of no
further force and effect, and any and all rights and obligations of
the parties hereunder shall cease.
(b) Anything in this Agreement to the contrary notwithstanding,
if a Change in Control of the Company occurs and if the
Executive’s employment is terminated (other than a
termination due to the Executive’s death or as a result of
the Executive’s disability) during the period of 180 days
prior to the date on which the Change in Control of the Company
occurs, and if it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request of a
third party who has taken steps reasonably calculated to effect a
Change in Control of t
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