Exhibit 10.27
EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“Agreement”) is entered into as of April 1, 2003
by and between Concord EFS, Inc., a Delaware corporation (the
“Company”), and Edward Labry (the
“Executive”).
WHEREAS, the Company desires to
employ the Executive to serve as Special Advisor to the Chief
Executive Officer of First Data Corporation (“FDC”)
following the consummation of the merger (the “Merger”)
contemplated by the Agreement and Plan of Merger dated as of
April 1, 2003 among the Company, FDC and Monaco Subsidiary
Corporation, and the Executive desires to be employed by the
Company, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of
the mutual promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive agree as
follows:
1) Employment . This
Agreement shall become effective concurrently with the completion
of the Merger. Upon consummation of the Merger, the Company will
employ the Executive and the Executive hereby agrees to be employed
by the Company upon the terms and subject to the conditions
contained in this Agreement. The term of employment of the
Executive by the Company pursuant to this Agreement shall commence
upon the consummation of the Merger and, unless earlier terminated
pursuant to Section 4, shall end 24 months after such date
(such period referred to herein as the “Initial Term”,
collectively with any extensions of this Agreement as the
“Employment Period”), provided that such term(s) shall
be automatically extended for additional thirty (30) day
periods unless either party gives notice to the other party fifteen
(15) days prior to the end of a term that such party does not
wish to extend the Employment Period.
2) Position and Duties;
Responsibilities . The Company shall employ the Executive
during the Employment Period as Special Advisor to the Chief
Executive Officer of FDC after the Merger. During the Employment
Period, the Executive shall perform faithfully and loyally and to
the best of the Executive’s abilities the duties assigned to
the Executive hereunder and shall devote the Executive’s full
business time, attention and effort to the affairs of the Company
and its subsidiaries and shall use the Executive’s best
efforts to promote the interests of the Company and its
subsidiaries. The Executive may engage in charitable, civic or
community activities and, with the prior approval of the Board of
Directors of the Company (the “Board”), may serve as a
director of any other business corporation, provided that such
activities or service do not interfere with the Executive’s
duties hereunder or violate the terms of any of the covenants
contained in Sections 6, 7 or 8 hereof. The Executive shall at all
times abide by all policies and procedures of the Company as in
effect or amended from time to time in the Company’s
discretion.
3) Compensation
.
a) Base Salary . During the
Employment Period, the Company shall pay to the Executive a base
salary at the rate of $750,000 per annum (“Base
Salary”), payable in accordance with the Company’s
normal payroll practices net of required or permitted withholdings
and deductions.
b) Other Benefits . During
the Employment Period, the Executive shall be eligible to
participate in the Company’s health, disability and group
life plans and such other employee benefit plans as the Executive
and the Company may mutually agree from time to time. The Company
reserves the right to alter, suspend, amend or discontinue any and
all of its benefit plans and fringe benefits, in whole in or party,
at any time with or without notice.
c) Expense Reimbursement .
During the Employment Period, the Company shall reimburse the
Executive, in accordance with the Company’s policies and
procedures, for all proper expenses incurred by the Executive in
the performance of the Executive’s duties
hereunder.
4) Termination
.
a) Death . Upon the death of
the Executive, this Agreement shall automatically terminate and all
rights of the Executive and the Executive’s heirs, executors
and administrators to compensation and other benefits under this
Agreement shall cease immediately, except that the
Executive’s heirs, executors or administrators, as the case
may be, shall be entitled to:
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i)
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accrued Base
Salary and vacation pay, less required and authorized withholding
and deductions, through and including the Executive’s date of
death;
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ii)
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other Employee
Benefits to which the Executive was entitled on the date of death
in accordance with the terms of the plans and programs of the
Company; and
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iii)
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payment equal
to the Executive’s Base Salary at the Executive’s then
current rate for 12 months, less required and authorized
withholding and deductions, payable in accordance with the
Company’s normal payroll practices or in a lump sum, as
determined by the Company in its discretion.
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b) Disability . The Company
may, at its option, terminate this Agreement upon written notice to
the Executive if the Executive, because of physical or mental
incapacity of disability, fails to perform the essential functions
of the Executive’s position, with or without reasonable
accommodation, required of the Executive hereunder for a continuous
period of 30 days. Upon such termination, all obligations of the
Company hereunder shall cease immediately, except that the
Executive shall be entitled to:
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i)
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accrued Base
Salary and vacation pay, less required and authorized withholding
and deductions, through and including the effective date of the
Executive’s termination of employment;
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ii)
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other Employee
Benefits to which the Executive is entitled upon termination of
employment in accordance with the terms of the plans and programs
of the Company; and
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iii)
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payment equal
to the Executive’s Base Salary at the Executive’s then
current rate for 12 months, less required and authorized
withholding and deductions, payable in installments in accordance
with the Company’s normal payroll practices or in a lump sum,
as determined by the Company in its discretion.
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In the event of any dispute
regarding the existence of the Executive’s incapacity of
disability hereunder, the matter shall be resolved by the
determination of a physician selected by the Board. The Executive
shall submit to appropriate medical examinations for purposes of
such determinations.
c) Cause .
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i)
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The company
may, at its option, terminate the Executive’s employment
under this Agreement for Cause (as hereinafter defined) upon
written notice to the Executive (the “Cause Notice”).
Any such termination for Cause shall be authorized by the Board.
The Cause Notice shall state the particular action(s) or
inaction(s) giving rise to termination for Cause. The Executive
shall have five (5) days after the Cause Notice is given to
cure the particular action(s) or inaction(s), to the extent a cure
is possible. If the Executive so effects a cure to the satisfaction
of the Board, the Cause Notice shall be deemed rescinded and of no
force or effect.
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ii)
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As used in this
Agreement, the term “Cause” shall mean any one of more
of the following:
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(1)
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any refusal by
the Executive to perform the Executive’s duties under this
Agreement or to perform specific directives of the Board or of the
Chairman of the Board which are consistent with the scope and
nature of the Executive’s duties and responsibilities as set
forth herein;
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(2)
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any act of
fraud, embezzlement or theft by the Executive in connection with
the Executive’s duties hereunder or in the course of the
Executive’s employment hereunder or any prior employment, or
the Executive’s admission or conviction of a felony or of any
crime involving moral turpitude, fraud, embezzlement, theft or
misrepresentation;
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(3)
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any gross
negligence or willful misconduct of the Executive resulting in a
loss to the Company or any of its subsidiaries, or damage to the
reputation of the Company or any of its subsidiaries;
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(4)
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any breach by
the Executive of any one or more of the covenants contained in
Sections 6, 7 or 8 hereof; or
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(5)
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any violation
of any statutory or common law duty of loyalty to the Company or
any of its subsidiaries.
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iii)
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The exercise of
the right of the Company to terminate this Agreement pursuant to
this Section 4(c) shall not abrogate the rights or remedies of
the Company in respect of the breach giving rise to such
termination.
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iv)
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If the Company
terminates the Executive’s employment for Cause, all
obligations of the Company hereunder shall cease, except that the
Executive shall be entitled only to the payments and benefits
specified in Sections 4(a)(i) and 4(a)(ii) hereof.
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d) Termination Without Cause
. The Company may, at its option, terminate the Executive’s
employment under this Agreement upon written notice to the
Executive for any reason. However, if the Company terminates the
Executive’s employment for any reason other than a reason set
forth in Section 4(a), 4(b) or 4(c), all obligations of the
Company hereunder shall cease immediately except that the Executive
shall be (1) entitled to the payments and benefits specified
in Section 4(a)(i) through 4(a)(iii) and (2) solely for
purposes of continuing to have the right to exercise any vested and
theretofore unexercised stock options, Executive shall be deemed to
be actively employed through the 24-month period commencing upon
the consummation of the Merger. If the Company terminates the
Executive’s employment for any such reason, all obligations
of the Company hereunder shall cease immediately, except that the
Executive shall be entitled to the payments and benefits specified
in Sections 4(a)(i) through 4(a)(iii) (inclusive); provided,
however, that no termination without cause shall be effective
unless, prior to such termination, the stock option plans pursuant
to which all Company stock options held by the Executive have been
issued permit (including, as and if necessary, by amendment of such
plans subsequent to the date hereof) the exercise of all such
options through the 24-month period commencing upon the
consummation of the Merger notwithstanding any such termination;
and provided further that, in the event that such plans provide for
any such extension of the exercise period beyond the
post-termination period provided for currently under such plans,
such options shall be exercisable through the 24-month period
commencing upon the consummation of the Merger and the additional
90-day period as provided under the terms of the applicable option
plans.
e) Termination for Good
Reason .
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i)
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The Executive
may terminate the Executive’s employment under this Agreement
for Good Reason (as hereinafter defined) upon written notice to the
Company (the “Good Reason Notice”). The Good Reason
Notice shall state the particular action(s) or inaction(s) giving
rise to the termination for Good Reason and must be delivered to
the Company within thirty (30) days after the Executive
becomes aware of such action(s) or inaction(s). The Company shall
have thirty (30) days after the Good Reason Notice is given to
cure the particular action(s) or inaction(s). If the Company so
effects a cure, the Good Reason Notice shall be deemed rescinded
and of no further force and effect. A termination for Good Reason
shall be treated as a term
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