Exhibit 10.42
EMPLOYMENT
AGREEMENT
BETWEEN
CARL J. WILLIAMS
AND
GLOBAL PAYMENTS
INC.
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered into as of the 23rd
day of July, 2009 by and between Global Payments Inc., a Georgia
corporation (the “Company”), and Carl J. Williams
(“Executive”) and supersedes the Employment Agreement
dated March 15, 2004, as amended on December 31,
2008.
BACKGROUND
Executive shall serve as
Advisor-Business Development and International Operations.
Executive and the Company desire to memorialize the terms of such
employment in this Agreement. The terms of this Agreement replace
any terms that might have been contained in any previous agreement,
letter or other verbal or written communication regarding
Executive’s employment.
NOW THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effective Date . The
effective date of this Agreement (the “Effective Date”)
is January 1, 2009.
2. Employment . Executive is
hereby employed as Advisor-Business Development and International
Operations, but may be reassigned to such other advisory position
as the Chief Executive Office shall designate. In such capacity,
Executive shall have the responsibilities commensurate with such
position as shall be assigned to him by the Chief Executive Officer
of the Company. During the Regular Employment Period, Executive
shall be located in Atlanta, Georgia. During the Extended
Employment Period, Executive may elect to relocate at his own
expense to any location, which shall be considered
Executive’s place of business for purposes of
business-related travel required of him during the Extended
Employment Period.
3. Employment Period .
Executive’s employment pursuant to the terms of this
Agreement shall begin on the Effective Date and continue until
August 31, 2010, unless earlier terminated in accordance with
Section 7 hereof (the “Employment Period”). The
time period between the Effective Date and May 31, 2009 shall
be referred to as the “Regular Employment Period” and
the time period between June 1, 2009 and August 31, 2010
shall be referred to as the “Extended Employment
Period”
4. Extent of Service . During
the Employment Period, Executive shall render his services to the
Company (or to its successor following a change in control) in
conformity with professional standards, in a prudent and
workmanlike manner. Executive shall promote the interests of the
Company and its subsidiaries in carrying out Executive’s
duties and shall not deliberately take any action which could, or
fail to take any action which failure could, reasonably be expected
to have a material adverse effect
upon the business of the Company or any of its
subsidiaries or any of their respective affiliates. During the
Regular Employment Period, Executive agrees to devote his business
time, attention, skill and efforts exclusively to the faithful
performance of his duties hereunder; and during the Extended
Employment Period, Executive shall be available as is reasonably
necessary to provide advisory services to the Company, provided,
however, that it shall not be a violation of this Agreement for
Executive to (i) devote reasonable periods of time to
charitable and community activities and, with the approval of the
Company, industry or professional activities, and/or
(ii) manage personal business interests and investments, so
long as such activities do not materially interfere with the
performance of Executive’s responsibilities under this
Agreement. The foregoing shall apply both before and after a change
in control.
5. Compensation and Benefits
.
(a) Base Salary . During the
Regular Employment Period, the Company will pay to Executive a base
salary in the amount of U.S. $500,000 per year and, during the
Extended Employment Period, the Company will pay to Executive a
base salary of $250,000 pro-rated over the fifteen month period (in
each case the applicable “Base Salary”), less normal
withholdings, payable in equal bi-weekly or other installments as
are customary under the Company’s payroll practices from time
to time, except as set forth in the next sentence. Notwithstanding
the foregoing, for the first six (6) months of the Extended
Employment Period, any such payments shall be accumulated and paid
to Executive on the first payroll date in the seventh (7
th ) month following the termination date of
the Regular Employment Period. The Executive’s Base Salary
(as described above) shall not be subject to change during the
Employment Period.
(b) Incentive Plans . During
the Regular Employment Period, Executive shall be entitled to
participate in the annual bonus plan and shall be guaranteed an
annual bonus of $500,000 to be paid at the time annual bonuses are
paid to other executives of the Company on or about July of 2009.
Also, on or about July of 2009, the Compensation Committee shall
review the Company’s performance under the performance unit
agreement and Executive’s performance units originally
granted in July of 2008 shall be converted to a restricted stock
award on the same calculation as the other executives (which may
include a forfeiture of performance units) based on the
Company’s actual results during the Performance Cycle (as
defined in the performance unit agreement). Except as specifically
set forth in this Paragraph 5(b), Executive shall not be entitled
to receive any salary increases, additional bonuses or any
additional incentive plan awards of any kind (including, but not
limited to, performance unit awards, stock option awards, or
restricted stock awards) after the Effective Date
hereunder.
(c) Welfare Benefit Plans .
During the Regular Employment Period, Executive and
Executive’s family shall be eligible for participation in,
and shall receive all benefits under, the welfare benefit plans,
practices, policies and programs provided by the Company
(including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel
accident insurance plans and programs) (“Welfare
Plans”) and during the Extended Employment Period, Executive
and
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Executive’s family shall be eligible for
participation in, and shall receive only the benefits under the
plans, practices, policies and programs provided by the Company in
connection with medical, prescription, vision, and dental
only.
(d) Expenses . During the
Employment Period, Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by Executive in
accordance with the policies, practices and procedures of the
Company.
6. Intentionally omitted
.
7. Termination of Employment
.
(a) Termination by the
Company . The Company may terminate Executive’s
employment without cause at any time during the Employment Period.
This Agreement shall automatically terminate upon Executive’s
death.
(b) Notice of Termination .
Any termination by the Company shall be communicated by Notice of
Termination to the Executive given in accordance with
Section 17(f) of this Agreement.
(c) Date of Termination .
“Date of Termination” means (i) the date of death
or (2) the date specified in the letter of termination. In no
event shall the Date of Termination be later than August 31,
2010.
(d) Definition of Termination of
Employment. For purposes of determining the time of payment of
any amount hereunder in accordance with Section 409A, all
references in this Agreement to termination of employment or Date
of Termination mean a separation from service as defined under
Section 409A and the regulations thereunder. This provision
does not prohibit the vesting of any amount upon a termination of
employment, however defined.
8. Obligations of the Company
upon Termination .
(a) Termination by the
Company . If the Company shall terminate Executive’s
employment, then, (and with respect to the payments and benefits
described in clauses (ii) through (v) below, only if
Executive executes (and does not revoke) a Release in substantially
the form of Exhibit A hereto (the “Release”) within 60
days of the Date of Termination):
(i) the Company shall pay to
Executive in a lump sum in cash within 30 days after the Date of
Termination the sum of Executive’s Base Salary through the
Date of Termination to the extent not theretofore paid
(“Accrued Obligations”), and
(ii) the Company shall continue to
pay Executive his Base Salary as described in Section 5(a),
until August 31, 2010 (the “Severance
Period”),
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payable in equal monthly or more frequent
installments as are customary under the Company’s payroll
practices for active employees from time to time; provided, however
that the Company’s obligation to make or continue such
payments shall cease if Executive violates any of the Restrictive
Covenants (as set forth in Section 13 of this Agreement) and
fails to remedy such violation to the satisfaction of the Board
within 10 days of notice of such violation and, further provided
that the payments due Executive under this Section shall be payable
in equal monthly or more frequent installments as are customary
under the Company’s payroll practices for active employees
from time to time; provided however, that, if required pursuant to
Section 409A, for the first six (6) months after the Date
of Termination any such payments shall be accumulated and paid to
Executive on the first payroll date in the seventh (7
th ) month following the Date of Termination
(the “Pay Date”); and
(iii) Executive shall have the right
to elect continuation of health care coverage under the
Company’s group health plan in accordance with
“COBRA,” and the Company shall reimburse all premiums
for such COBRA coverage for Executive and his covered dependents
through no later than August 31, 2010, provided,
however, the obligation of the Company to reimburse the cost
for such COBRA coverage shall terminate upon Executive’s
obtaining other employment to the extent that such health care
coverage is provided by the new employer, and the Company’s
obligation to provide such reimbursement shall cease if Executive
violates any of the Restrictive Covenants (as set forth in
Section 13 of this Agreement) and fails to remedy such
violation to the satisfaction of the Board within 10 days of notice
of such violation; and
(iv) all of Executive’s
options to acquire Common Stock of the Company
(“Options”) that would have become vested (by lapse of
time) on or before August 31, 2010 and all of
Executive’s Restricted Stock that would have had the
restrictions lifted (by lapse of time) prior to August 31,
2010 had Executive remained employed during such period will become
immediately vested as of the Date of Termination unless Executive
has violated any of the Restrictive Covenants (as set forth in
Section 13 of this Agreement); and
(v) notwithstanding the provisions
of the applicable Option agreement, all of Executive’s vested
but unexercised Options as of the Date of Termination (including
those with accelerated vesting pursuant to Section 8(a)(iv)
above) shall remain exercisable through the earlier of (A) the
original expiration date of the Option, (B) the 90
th day following the Date of Termination; or
(C) the date that is the 10 th anniversary of the original date of grant of the
Option.
(vi) if the Date of Termination
occurs prior to the payment of the bonus and the receipt of the
restricted stock award referred to in Section 5(b), then
Executive shall also be entitled to receive the annual bonus
payment and the restricted stock award set forth in
Section 5(b) at the time referred to therein, provided that if
the bonus does not qualify for an exemption under
Section 409A, the bonus payment will be made on the first
business day of the seventh (7 th ) month following the Date of
Termination.
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(b) Death. If
Executive’s employment is terminated by reason of
Executive’s death, this Agreement shall terminate without
further obligations to Executive or his estate or legal
representatives under this Agreement, other than for payment of
Accrued Obligations and the bonus provided for in Section 5(b)
if not already paid. Accrued Obligations shall be paid to
Executive’s estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination.
(c) Executive Termination .
If Executive terminates employment, this Agreement shall terminate
without further obligations to Executive, other than for payment of
Accrued Obligations and the timely payment or provision of Other
Benefits.
9. Non-exclusivity of Rights
. Except as set forth herein, nothing in this Agreement shall
prevent or limit Executive’s continuing or future
participation in any plan, program, policy or practice provided by
the Company and for which Executive may qualify, nor, subject to
Section 17(d), shall anything herein limit or otherwise affect
such rights as Executive may have under any contract or agreement
with the Company. Amounts which are vested benefits or which
Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the
Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program
or contract or agreement except as modified by this Agreement
(“Other Benefits”).
10. Intentionally omitted
.
11. Costs of Enforcement .
Unless otherwise provided by the arbitrator(s) in an arbitration
proceeding pursuant to Section 14 hereof, in any action taken
in good faith relating to the enforcement of this Agreement or any
provision herein, Executive shall be entitled to be paid any and
all costs and expenses incurred by him in enforcing or establishing
his rights thereunder, including, without limitation, reasonable
attorneys’ fees, whether suit be brought or not, and whether
or not incurred in trial, bankruptcy or appellate proceedings, but
only if Executive is successful on at least one material issue
raised in the enforcement proceeding. Any costs or expenses that
otherwise meet the requirements for reimbursement under this
Section 11 shall be reimbursed within 60 days of submission by
Executive of a request for reimbursement, but in no event later
than the last day of Executive’s taxable year following the
taxable year in which the Executive becomes entitled to such
reimbursement by reason of being successful on at least one
material issue (provided a request for reimbursement has been
made).
12. Representations and
Warranties . Executive hereby represents and warrants to the
Company that Executive is not a party to, or otherwise subject to,
any covenant not to compete with any person or entity, and
Executive’s execution of this
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Agreement and performance of his obligations
hereunder will not violate the terms or conditions of any contract
or obligation, written or oral, between Executive and any other
person or entity.
13. Restrictions on Conduct of
Executive .
(a) General . Executive and
the Company understand and agree that the purpose of the provisions
of this Section 13 is to protect legitimate business interests
of the Company, as more fully described below, and is not intended
to eliminate Executive’s post-employment competition with the
Company per se , nor is it intended to impair or infringe
upon Executive’s right to work, earn a living, or acquire and
possess property from the fruits of his labor. Executive hereby
acknowledges that the post-employment restrictions set forth in
this Section 13 are reasonable and that they do not, and will
not, unduly impair his ability to earn a living after the
termination of this Agreement. Therefore, subject to the
limitations of reasonableness imposed by law, Executive shall be
subject to the restrictions set forth in this Section 13. For
purposes of Section 13 the Company shall be deemed to include
its parents, affiliates, and subsidiaries.
(b) Definitions . The
following terms used in this Section 13 shall have the
meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
“ Competitive Position
” means any employment with a Competitor in which Executive
will use or is likely to use any Confidential Information or Trade
Secrets, or in which Executive has duties for such Competitor that
relate to Competitive Services and that are the same or similar to
those services actually performed by Executive for the
Company;
“ Competitive Services
” means the provision of products and services to facilitate
or assist with the movement of electronic commerce, including
without limitation, payment and financial information, merchant and
cardholder processing, credit and debit transaction processing,
check guarantee and verification, electronic authorization and
capture, terminal management services, portfolio risk management,
purchase card services, financial electronic data interchange, and
cash management services, including internet applications of any of
the foregoing.
“ Competitor ”
means any of the following companies, all of whom engage in
Competitive Services and all of their parents, affiliates, and
subsidiaries who engage in Competitive Services and all of the
successors in interest to any of the foregoing: TSYS Acquiring
Solutions, Chase Paymentech Solutions, First Data Corporation,
Total System Services, Inc., Fifth Third Processing Solutions,
We
