Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Agreement
is made this 22nd day of December, 2008, by and between Fiserv,
Inc., on behalf of itself and its subsidiaries and affiliates
(“ Company ”) and Rahul Gupta (“
Employee ”).
WHEREAS , the Company and Employee entered into an
Employment Agreement on November 21, 2006; and
WHEREAS , the Employee and the Company 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historic provisions that are no longer applicable.
NOW THEREFORE
, in consideration of the premises
set forth herein and intending to be legally bound, the parties
hereto agree as follows:
1. The Company agrees to employ
Employee, and Employee agrees to be employed by the Company. During
his employment, Employee agrees to serve as Group President with
such further responsibilities and duties commensurate with such
position as contemplated by the Company’s by-laws and
reasonably implemented by the Board of Directors and
Employee’s Direct Supervisor (as hereinafter defined) subject
to the further terms and conditions of this Agreement.
2. Employee agrees to accumulate
stock ownership in the Company in accordance with the
Company’s stock ownership policy as in effect from time to
time.
3. The term of this Agreement shall
begin on the date first written above and shall continue until
terminated by either party upon written notice to the other party
(“Term”).
4. Employee hereby represents that
he or she is free and able to enter into this Agreement with
Company and that there is no reason, known or unknown, which will
prevent his performance of the terms and conditions contained in
this Agreement. In the event that this representation is not
correct, Employee agrees to indemnify and hold the Company harmless
from and against any claim made by another employer or
company.
5. During the Employment Term,
Employee shall devote substantially his full business time,
faithfully, conscientiously and to the best of his ability to the
advancement of the interests of the Company and to the discharge of
the responsibilities and offices held by him. Employee shall not
engage in any other business activity, whether or not pursued for
pecuniary advantage, except as may be approved in advance by the
Company, provided , however , that the foregoing
shall not prohibit or limit Employee from participating in civic,
charitable or other not-for-profit activities or to manage personal
passive investments, provided that such activities do not
materially interfere with Employee’s services required under
this Agreement and do not violate the Code of Conduct or other
corporate policies of Fiserv. Employee hereby acknowledges that he
or she has read Fiserv’s Code of Conduct in effect as of the
date hereof, attached hereto as Exhibit A, and agrees that he or
she will comply with such Code of Conduct and other Fiserv
corporate
policies regarding activities in the workplace,
as they may be amended from time to time, in all material respects.
Receipt of payments from former employers including Fidelity
Investments and eFunds Corporation for past services that require
no ongoing obligations of Employee shall not constitute a violation
of the Code of Conduct.
6. For all services to be rendered
by Employee in any capacity during the term of this Agreement, the
Company shall pay or cause to be paid to Employee and shall provide
or cause to be provided to him the following:
(a) An annual salary at a minimum
rate of $400,000 per year, commencing on his first day of
employment, which is expected to be December 18, 2006, payable
in accordance with the normal payroll practices and schedule of the
Company. Beginning in February 2008 and thereafter, the
Employee’s direct supervisor (“Direct
Supervisor”) will determine Employee’s salary at a
level at least equal to Employee’s salary in the previous
year. To that end, Employee’s Direct Supervisor will review
annually the performance of Employee. The term “salary”
shall not include any payment or other benefit that is denominated
as or is in the nature of a bonus, incentive payment, commission,
profit-sharing payment, retirement or pension accrual, insurance
benefit, other fringe benefit or expense allowance, whether or not
taxable to Employee as income.
(b) In addition to the salary
provided above, Employee shall be entitled to participate in the
Management Bonus Plan or other incentive compensation program, as
offered by the Company from time to time for senior executives of
the Company. If Employee shall not be employed by the Company on
the date of payment of any incentive compensation hereunder,
Employee shall not be entitled to any portion of any payment under
the Management Bonus Plan or other incentive compensation
program.
(c) The Employee shall receive
equity in the Company (each a “Stock Program”) as
follows:
(i) As of the date of commencement
of employment by Employee hereunder (December 18, 2006),
Fiserv granted to Employee pursuant to the terms of the Fiserv,
Inc. Stock Option and Restricted Stock Plan (the “Stock
Option and Restricted Stock Plan”), an option to purchase
15,000 shares of Common Stock, $.01 par value, of Fiserv
(“Fiserv Common Stock”). The exercise price of such
options equals the fair market value of Fiserv Common Stock as
determined under the terms of the Stock Option and Restricted Stock
Plan on the date of commencement of employment hereunder. Such
options shall vest over a four-year period, with 1/3 of such
options vesting on each of the second, third and fourth anniversary
dates of the date of grant.
(ii) On the date of commencement of
employment hereunder (December 18, 2006), Employee received
6,950 shares of restricted stock under the terms of the Stock
Option and Restricted Stock Plan and the restricted stock agreement
covering such shares of restricted stock. Such shares of restricted
stock shall vest on the fourth anniversary of the date of the
commencement of employment hereunder.
(iii) On March 30, 2007,
Employee received an option to purchase 17,425 shares of common
stock and 2,356 shares of restricted stock.
2
(iv) To the extent Employee shall
thereafter be eligible to participate in the Fiserv Senior Managers
and Senior Professionals Stock Option and Restricted Stock Program,
options and restricted stock granted (or restricted stock units or
other equity instruments issuable under the Stock Option and
Restricted Stock Plan or any successor plan thereto) thereunder may
be subject to participation levels and vesting schedules not
commensurate with Employee’s position and may be determined
in connection with Employee’s annual performance evaluation
and granted annually during the Employment Term. All equity awards
granted or issued hereafter will be subject to the terms of the
Stock Option and Restricted Stock Plan as it may be amended from
time to time, or any successor plan thereto, and of the specific
award agreement pursuant to which any such equity awards may be
granted or issued from time to time.
The terms of the specific award
agreement pursuant to which equity awards may be granted or issued
hereunder shall govern treatment of such equity award in the event
of the death or disability (as defined in any such agreement) of
Employee. Such awards will also have vesting and other terms as
specified in the award agreement covering such equity awards, which
may be different than other employees of Fiserv.
(d) In addition to the salary and
incentive compensation provided above, Employee shall be entitled
to participate in any employee benefit plans, welfare benefit
plans, retirement plans, and other fringe benefit plans from time
to time in effect for senior executives of the Company generally;
provided , however , that such right or participation
in any such plans and the degree or amount thereof shall be subject
to the terms of the applicable plan documents, generally applicable
Fiserv policies and to action by the Board of Directors of Fiserv
or any administrative or other committee provided in or
contemplated by such plan, it being mutually agreed that this
Agreement is not intended to impair the right of any committee or
other group or person concerned with the administration of such
plans to exercise in good faith the full discretion reposed in them
by such plans.
(e) Employee shall be entitled to a
minimum of four (4) weeks paid vacation in accordance with the
Company’s standard vacation policies.
(f) All compensation or other
benefits payable or owing to Employee hereunder shall be subject to
withholding taxes and other legally required deductions pursuant to
federal, state or local law.
7. Employee’s employment
hereunder shall terminate under the following
circumstances:
(a) In the event Employee dies, this
Agreement and the Company’s obligations under this Agreement
shall terminate as of the end of the month during which his death
occurs.
(b) If Employee, due to physical or
mental illness, becomes so disabled as to be unable to perform
substantially all of his duties, the Employee’s employment
will terminate according to the policies of the Company.
(c) Employee’s employment may
be terminated for cause, effective immediately upon written notice
to Employee by the Company that shall set forth the specific nature
of the reasons for termination. Only the following acts or
omissions by Employee shall constitute “cause” for
termination:
(i) dishonesty or similar serious
misconduct, directly related to the performance of Employee’s
duties and responsibilities hereunder, which results from a willful
act or omission and which is injurious to the operations, financial
condition or business reputation of the Company;
3
(ii) Employee being named as a
defendant in any criminal proceedings, and as a result of being
named as a defendant, the operations, financial condition or
reputation of the Company are materially injured or Employee is
convicted of a crime;
(iii) Employee’s drug or
alcohol use in violation of any Company policy or which materially
impairs the performance of his duties and responsibilities as set
forth herein;
(iv) substantial, continuing willful
and unreasonable inattention to, neglect of or refusal by Employee
to perform Employee&rsquo
