Affiliated Computer Services,
Inc.
2828 North Haskell Avenue
Dallas, Texas 75204
Warren D.
Edwards
c/o Affiliated Computer Services, Inc.
2828 North Haskell Avenue
Dallas, Texas 75204
This will confirm
the agreement (the “Agreement”) that has been reached
with you in connection with your separation from employment from
Affiliated Computer Services, Inc. (the “Company”) and
its subsidiaries and affiliates.
1.
Effective Date : Effective as the date set forth above
(the “Effective Date”), and subject to paragraph 2
below, you have resigned from all positions with the Company and
its subsidiaries and affiliates, including as Executive Vice
President and Chief Financial Officer, other than an employee of
the Company, as provided in paragraph 2 below. A copy of your
letter of resignation dated November 26, 2006 is attached
hereto as Exhibit A. You agree to execute any additional
documents necessary to effect such resignations.
2.
Ongoing Services : From the Effective Date until
June 30, 2007 (the “Termination Date”) (such
period being the “Transition Period”), you shall
continue as an employee of the Company. During the Transition
Period, you shall report to the Chairman or Chief Executive Officer
of the Company as determined by the Chairman, and you shall provide
to the Company such transitional services as may reasonably be
designated from time to time. Such services shall be provided
either from your home or the Company’s principal offices on a
full time basis or such other basis as is mutually agreed between
you and the Company.
3.
Pay and Benefits : Y ou will receive base salary at a
rate of $34,300 per month during the Transition Period, provided
that you sign and deliver the ADEA Release in the form attached
hereto as Exhibit B (the “ADEA Release”) and such
ADEA Release becomes effective in accordance with its terms. During
the Transition Period, (a) you shall continue to participate
in all employee benefit plans and programs made generally available
to employees of the Company, except that you shall not be entitled
to participate in the Company’s bonus and other non-
tax-qualified incentive compensation plans or programs,
(b) you shall continue to participate in the Company’s
executive medical program (the “Executive Medical
Program”) and (c) you shall continue to be eligible for
business expense reimbursement in accordance with standard Company
policy. In the event that you do not sign and deliver the ADEA
Release or you revoke your consent to the ADEA Release, the
immediately preceding sentence shall remain in full force and
effect except that your compensation during the Transition Period
will be reduced from a rate of $34,300 per month to a rate of
$10,000 per month. Your eligibility to
participate in
the Company’s benefit plans and programs will terminate as of
the Termination Date except that, in consideration for your
agreement to the covenants set forth in paragraphs 5 and 6, you
shall be entitled to continue to participate in the Executive
Medical Program and the Company’s executive long term
disability program (the “LTD Program”) as in effect
from time to time for its senior executives through
December 31, 2009; provided, however, that if the Executive
Medical Program and/or the LTD Program is terminated or amended to
the detriment of the participants in the plan (including you) or
your continued participation in such programs is not permitted
under the terms thereof, the Company shall provide, at the
Company’s expense, health and disability insurance benefits
equal to those provided under the Executive Medical Program and the
LTD Program, as the case may, through December 31,
2009.
4.
Stock Options : Notwithstanding anything to the
contrary set forth in the Company’s 1997 Stock Incentive Plan
or in any other plan and/or award agreements pursuant to which you
were granted options or other derivative securities to acquire
common stock of the Company (“Options”):
(a) each
Option that is unvested as of the Effective Date (“Unvested
Options”) shall terminate immediately upon such date and you
shall have no further rights with respect to such Unvested Options,
except that where indicated on Exhibit C hereto, the Options
so indicated shall vest on the respective dates set forth on
Exhibit C provided that you have not materially breached the
provisions of Sections 2, 6, 7, 9 and 10 as of such
dates.
(b) each
Option that is vested as of the Effective Date or that becomes
vested in accordance with Section 4(a) above (“Vested
Options”), shall remain outstanding in accordance with its
terms except that (i) the exercise price of each such Vested
Option shall be increased to the amount determined for financial
reporting purposes uniformly applied for all Company options in
connection with the review being performed by the Company in
conjunction with the audit of the Company’s financial
statements for the fiscal year ended June 30, 2006,
(ii) each such Vested Option shall terminate either on the
date that is 90 days following the Termination Date or on the
first anniversary of the Termination Date, as indicated on
Exhibit C hereto, and following such date you shall have no
further rights with respect to such Vested Options (provided,
however, that in the event there exists a blackout period pursuant
to which you are not able to exercise your Options in the last
month of such period (whether by reason of the new exercise price
not having been determined in accordance with clause
(i) above, or otherwise), the exercise period shall
automatically be extended for 30 days following the end of
such blackout period), (iii) no more than eighty percent (80%)
of the Vested Options may be exercised prior to May 31, 2007,
(iv) the Vested Options shall not be subject to forfeiture,
and you shall in no manner be divested of the Vested Options,
following the Effective Date for any reason (including but not
limited to any subsequent termination by the Company or any
determination of the Company with respect to your termination for
“cause” under common law, or under the terms of the
1997 Stock Incentive Plan or any other plan, program, arrangement
or agreement) and (v) the Vested Options may not be exercised
until the new exercise price has been determined in accordance with
clause (i) above.
You represent and
agree that Exhibit C hereto sets forth a complete and accurate
list of all of your Options (including Unvested Options and Vested
Options).
5.
General Release and Waiver :
(a) In
consideration of the Company’s obligations hereunder and
acceptance of your resignation, you, your heirs, successors, and
assigns, hereby knowingly and voluntarily release and forever
discharge the Company and its subsidiaries and affiliates, together
with all of their respective current and former officers,
directors, consultants, agents, attorneys, representatives and
employees, and each of their predecessors, successors and assigns
(collectively, the “Releasees”), from any and all
debts, demands, actions, causes of actions, accounts, covenants,
contracts, agreements, claims, damages, omissions, promises, and
any and all claims and liabilities whatsoever, of every name and
nature, known or unknown, suspected or unsuspected, both in law and
equity (“Claims”), which you ever had, now have, or may
hereafter claim to have against the Releasees by reason of any
matter, cause or thing whatsoever arising from the beginning of
time to the time you sign this Agreement (the “General
Release”). This General Release of Claims shall apply to any
Claim of any type, including, without limitation, any and all
Claims of any type that you may have arising under the common law,
under Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Americans With Disabilities Act, the Family and
Medical Leave Act, the Employee Retirement Income Security Act
(“ERISA”), the Sarbanes-Oxley Act of 2002, the Texas
Commission on Human Rights Act, or the Texas Pay Day Law, each as
amended, and any other Federal, state or local statutes,
regulations, ordinances or common law (but shall not apply to any
Claims you may have arising under the Age Discrimination in
Employment Act, as amended), or under any policy, agreement,
contract, understanding or promise, written or oral, formal or
informal, between any of the Releasees and you, and shall further
apply, without limitation, to any and all Claims in connection
with, related to or arising out of your employment, or the
termination of your employment, with the Company; provided ,
however , that this General Release shall not apply to or
impair (i) Claims for vested benefits pursuant to any Company
employee benefit plan in which you were a participant before the
Termination Date; (ii) any Claims for unemployment insurance
benefits or workers’ compensation benefits applicable to the
period through the Termination Date; (iii) any Claims that may
arise under this Agreement (including without limitation, Claims
under any D&O or similar insurance, or under the
Company’s Bylaws, Certificate of Incorporation and/or other
governing documents, or under the Executive Medical Plan or LTD
Plan) or (iv) any Claims for business expense
reimbursement.
(b) For
the purpose of implementing a full and complete release, you
understand and agree that this Agreement is intended to include all
claims, if any, which you may have and which you do not now know or
suspect to exist in your favor against the Company or any of the
Releasees and that this Agreement extinguishes those
claims.
(c) You
represent and warrant that you have not filed any complaints or
charges with any court or administrative agency against the Company
or any of the Releasees, which have not been dismissed, closed,
withdrawn or otherwise terminated on or before the date of this
Agreement. You further represent and agree that you have not
assigned nor transferred or attempted to assign or transfer, nor
will you attempt to assign or transfer, to any person or entity not
a party to this Agreement any of the Claims you are releasing in
this Agreement. Furthermore, by signing this General Release, you
represent and agree that you will not be
entitled to any
personal recovery in any action or proceeding that may be commenced
on your behalf arising out of the matters released
hereby.
6.
Restrictive Covenants : You agree that: (i) in the
course of your employment with the Company you have had, and until
the Termination Date may continue to have, access to confidential
and proprietary information (“Confidential
Information”) relating to the Company, its subsidiaries and
affiliates, and their respective businesses, clients, finances,
operations, strategic or other plans, employees, trade practices,
trade secrets, know how or other matters that are not publicly
known outside the Company, which are integral to the operations and
success of the Company, and that such Confidential Information has
been disclosed to you in confidence and only for the use of the
Company; (ii) the direct and indirect disclosure of any such
Confidential Information would place the Company at a competitive
disadvantage and would do damage, monetary or otherwise, to the
Company’s business; (iii) the Confidential Information
constitutes a trade secret of the Company; and (iv) the
engaging by you in any of the activities prohibited by this
paragraph 6 may constitute improper misappropriation and/or use of
such information and trade secrets. Accordingly, you agree as
follows:
(a)
Confidential Information . Following the Effective Date,
during the Transition Period and at all times thereafter
(a) you will keep confidential and will not directly or
indirectly, communicate, divulge, disclose, make known or furnish
to any other person, business, firm, partnership, limited
partnership, limited liability partnership, limited liability
company, corporation or other entity any Confidential Information,
other than in the proper performance of the transitional/consulting
services during the Transition Period and under the direction of
the Company and unless and until such Confidential Information
shall become general public knowledge through no fault of your own,
and (b) you will not make use of such Confidential Information
on your own behalf, or on behalf of any third party. You further
understand and agree that you shall not copy, in whole or in part,
any such Confidential Information, and that you will return to the
Company any and all copies, duplicates, reproductions or excerpts
of such Confidential Information, and any such information stored
electronically on tapes, computer disks or in any other manner
within your possession, custody or control. The provisions of this
paragraph 6 are in addition to any other written confidentiality or
non-disclosure agreements that you may have with the Company or any
of the Releasees, and are not meant to and do not excuse any
additional obligations that you may have under such agreements.
Notwithstanding the provisions of this paragraph 6, or of paragraph
7, you shall not be restricted from sharing with your counsel, or
retaining, copying or excerpting, any information or documentation,
whether or not constituting Confidential Information or Property,
for the purpose of assisting you in your defense of any inquiry or
proceeding concerning the Company’s historical stock option
practices or related matters.
(b)
Non-Competition . For the period commencing on the Effective
Date and continuing until December 31, 2009, you shall not
directly or indirectly, whether as an officer, director,
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