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[CONFORMED COPY]
AMENDMENT NO. 3 TO 3-YEAR CREDIT AGREEMENT
AMENDMENT No. 3 dated as of August 9, 1996 among POLICY
MANAGEMENT SYSTEMS CORPORATION (the "Borrower"), the BANKS listed
on the signature pages hereof and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a
3-Year Credit Agreement dated as of August 11, 1995 (as amended,
the "Agreement"); and
WHEREAS, the Borrower has asked the Banks, and the Banks are
willing, on the terms and conditions set forth below, to amend the
Agreement as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise specifically
defined herein, each term used herein that is defined in the
Agreement shall have the meaning assigned to such term in the
Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. Amendment of the Definition of Debt. The
definition of "Debt" set forth in Section 1.1 of the Agreement is
amended to read in its entirety as follows: "Debt" of any Person
means at any date, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the
deferred purchase price of property or services, except (x) trade
accounts payable arising in the ordinary course of business, (y)
any other accrued expenses incurred in the ordinary course of
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business and (z) payment of amounts pursuant to "contingent earn-out" or
similar provisions the payment of which amounts is
contingent upon the achievement of good faith performance targets,
but only to the extent that such payment is not, or would not be
reflected as, a liability on the balance sheet of such Person at
such date, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting
principles, (v) all non-contingent obligations (and, for purposes
of Section 5.9 (a), (f) and (k) and the definitions of Material
Debt and Material Financial Obligations, all contingent
obligations) of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit, (vi) all
obligations of such Person with respect to Designated Swaps, but
only to the extent that such obligations are, or would be
reflected as, a liability on the balance sheet of such Person at
such date, (vii) all Debt secured by a Lien on any asset of such
Person, whether or not such Debt is otherwise an obligation of
such Person and (viii) all Debt of others Guaranteed by such
Person. It is understood that the payment obligations of the
Borrower to a counterparty under any equity swap (each such swap,
a "Designated Swap") to be entered into between it and the
Borrower with respect to shares of outstanding common stock of the
Borrower in connection with the Borrower's share repurchase
program shall not constitute "Debt" except as set forth in clause
(vi) of the definition of Debt.
SECTION 3. Additional Permitted Temporary Cash Investments.
The definition of "Temporary Cash Investments" set forth in
Section 1.1 of the Agreement is amended to read in its entirety as
follows:
"Temporary Cash Investment" means any Investment in
(i) direct obligations of the United States or any agency thereof
or the Commonwealth of Australia, or obligations guaranteed by the
United States or any agency thereof or the Commonwealth of
Australia, (ii) commercial paper rated at least A-1 by Standard &
Poor's Rating Group and P-1 by Moody's Investors Service, Inc.,
(iii) time deposits with, including certificates of deposit issued
by, any office located in the United States of (x) any Bank or (y)
any bank or trust company which is organized under the laws of the
United States or any state thereof or the United Kingdom and has
capital, surplus and undivided profits aggregating at least
$750,000,000, (iv) repurchase agreements with respect to
securities described in clause (i) above entered into with an
office of a bank or trust company meeting the criteria specified
in clause (iii) above, (v) municipal bonds issued by
municipalities located in the United States rated at least A or
the equivalent thereof by Standard & Poor's Rating Group or A2 or
the equivalent thereof by Moody's Investors Service, Inc. and, if
such bonds are rated by both such agencies, then at least A or the
equivalent thereof by Standard & Poor's Rating Group and A2 or the
equivalent thereof by Moody's Investors Service, Inc. and
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(vi) Debt securities of any Person which are rated at least A or
the equivalent thereof by Standard & Poor's Rating Group or A2 or
the equivalent thereof by Moody's Investors Service, Inc. and, if
such Debt securities are rated by both such agencies, then at
least A or the equivalent thereof by Standard & Poor's Rating
Group and A2 or the equivalent thereof by Moody's Investors
Service, Inc.; provided that any Investment described in clauses
(i), (ii), (iii) or (iv) matures within one year from the date of
acquisition thereof by the Borrower or a Subsidiary and any
Investment described in clause (vi) matures within 90 days from
the date of acquisition thereof by the Borrower or a Subsidiary.
SECTION 4. Increase in Amount of Certain Permitted
Subsidiary Debt. The proviso in clause (c) of Section 5.10 of the
Agreement is amended to read in its entirety as follows: "provided
that the aggregate principal amount of Debt of each such wholly-owned
Subsidiary outstanding at any time and permitted by this
clause (c) (net of the aggregate amount of Debt owed to such
wholly-owned Subsidiary by the Borrower or any other wholly-owned
Subsidiary) does not exceed $15,000,000. For purposes of this
clause (c), (1) the "Debt" owed by any wholly-owned Subsidiary
shall include, subject to clause (3) below, any intercompany loans
of or advances made to such Subsidiary and regardless of whether
such loans or advances constitute "Debt" as defined in Section
1.1, intercompany accounts payable of such Subsidiary or
otherwise, (2) the "Debt" owed to any wholly-owned Subsidiary
shall include any amounts payable to such Subsidiary with respect
to intercompany loans or advances made by such Subsidiary and
regardless of whether such payments constitute intercompany
accounts receivables of such Subsidiary or otherwise and (3) the
"Debt" of a Subsidiary of the Borrower shall not include an amount
up to 8,000,000 Australian Dollars owed by such Subsidiary to the
Borrower and incurred by such Subsidiary solely for the purpose of
consummating the acquisition of certain assets of Co-Cam Pty Ltd.,
Co-Cam Wholesale Pty Ltd., Co-Cam Asia Pty Ltd., Co-Cam Financial
Systems Pty Ltd., Co-Cam Custom Software Pty Ltd., and Auz-Com
Technologies Pty Ltd., each an Australian corporation, Co-Cam New
Zealand Ltd., a New Zealand corporation, and Co-Cam Computer
Services (UK) Ltd., a United Kingdom corporation.
SECTION 5. Increase in Minimum Cash Flow Ratio. Section
5.11 of the Agreement is amended by substituting the ratio ".4:1"
for the ratio ".25:1" set forth therein.
SECTION 6. Increase in Minimum Consolidated Tangible Net
Worth. Section 5.13 of the Agreement is amended by substituting
the amount "$175,000,000" for the amount "$162,500,000" set forth
in the first sentence thereof.
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SECTION 7. Increase in Amount of Certain Permitted Investments.
Clauses (c) and (d) of Section 5.15 of the Agreement are amended
to read in their entirety as follows:
"(c) Investments in any customer of the Borrower or any of
its Subsidiaries (or in any other Person the accounts of which
would be consolidated with those of such customer in such
customer's consolidated financial statements if such statements
were prepared as of the date such Investments are made) which are
characterized as "inducements" and are made in connection with
long term processing contracts entered into by the Borrower or
such Subsidiary with such customer; and
(d) any Investment not otherwise permitted by the foregoing
clauses of this Section if, immediately after such Investment is
made or acquired, the aggregate net book value of all Investments
permitted by this clause (d) and outstanding at such time does not
exceed $40,000,000.".
SECTION 8. Substitution of Banks. A new Section 8.6 to the
Agreement is added immediately after Section 8.5 thereof, to read
in its entirety as follows:
SECTION 8.6. Substitution of Bank. If (i) the obligation of
any Bank to make Euro-Dollar Loans has been suspended pursuant to
Section 8.2 or (ii) any Bank has demanded compensation under
Section 8.3 or 8.4, the Borrower shall have the right, with the
assistance of the Agent, to seek a mutually satisfactory
substitute bank or banks (which may be one or more of the Banks)
to purchase the Note and assume the Commitment of such Bank.
SECTION 9. New Pricing Schedule. The Pricing Schedule to
the Agreement is amended to read in its entirety as set forth on
the Pricing Schedule attached hereto.
SECTION 10. Release of Guarantor. Effective as of the date
hereof, Policy Management Systems Canada, Ltd. shall cease to be a
"Guarantor" under the Agreement and shall be released from all of
its obligations thereunder.
SECTION 11. Counterparts; Effectiveness. This Amendment
may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Amendment shall
become effective as of August 9, 1996 upon receipt by the Agent of
duly executed counterparts hereof signed by the Borrower and the
Banks.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
POLICY MANAGEMENT SYSTEMS CORPORATION,
POLICY MANAGEMENT SYSTEMS
CANADA, LTD.
CYBERTEK CORPORATION
POLICY MANAGEMENT SYSTEMS
INTERNATIONAL, LTD.
PMSI, L.P.
By POLICY MANAGEMENT
SYSTEMS CORPORATION;
its General Partner
CYBERTEK SOLUTIONS, L.P.
By POLICY MANAGEMENT
SYSTEMS CORPORATION;
its General Partner
By /s/ Stephen G. Morrison
Title: Executive Vice President &
General Counsel
POLICY MANAGEMENT SYSTEMS
INVESTMENTS, INC.
By /s/ Gordon W. Stewart
Title: Secretary
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
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By /s/ Eugenia Wilds
Title: Vice President
FIRST UNION NATIONAL
BANK OF SOUTH CAROLINA
By /s/ Gregory G. Burke
Title: Vice President
WACHOVIA BANK OF SOUTH
CAROLINA, N.A.
By /s/ Gina W.Lesslie
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ Michael J. McKenney
Title: Vice President
COMMERZBANK
AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By /s/ A. Bremer
Title: Senior Vice President
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By /s/ H. Yergey
Title: Vice President
THE DAI-ICHI KANGYO BANK
LTD., ATLANTA AGENCY
By /s/ Toshiaki Kurihara
Title: Joint General Manager
NBD BANK
By /s/ Larry Schuster
Title: Authorized Agent
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By /s/ Ralf Hoffmann
Title: Vice President
By /s/ Jean W. Hannigan
Title: Vice President
THE FUJI BANK, LIMITED,
ATLANTA AGENCY
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By /s/ Toshihiro Mitsui
Title: Vice President & Manager
PRICING SCHEDULE
Each of "Euro-Dollar Margin", "CD Margin" and
"Facility Fee Rate" means, for any date, the rates set forth below
in the row opposite such term and the Usage on such date and in
the column corresponding to "Level I":
Level I
CD Margin
Usage < _
Usage > _
0.525%
0.625%
Euro-Dollar
Margin
Usage
< _
Usage > _
0.4%
0.5%
Facility Fee
Rate
0.2%
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For purposes of this Schedule, the following terms have the
following meanings:
"Level I Pricing" applies at any date.
"Usage" means at any date a fraction (i) the numerator
of which is the aggregate outstanding principal amount of the
Loans at such date, after giving effect to any borrowing or
payment on such date, and (ii) the denominator of which is the
aggregate amount of the Commitments at such date, after giving
effect to any reduction of the Commitments on such date. For
purposes of this Schedule, if for any reason any Loans remain
outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed
to be greater than _.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>3
<TEXT>
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of November 7, 1996, by
and between Policy Management Systems Corporation, a South Carolina corporation
("Employer"), and ______________ ("Employee").
WHEREAS, Employer currently employs Employee as its ___________________________
and
WHEREAS, Employer and Employee are desirous of continuing Employees' employment
with Employer for the period, and on the terms and conditions, set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and obligations herein contained, the parties hereby agree as follows:
1. Employment. Employer hereby employs Employee, and Employee accepts such
employment, according to the terms and conditions set forth in this
Agreement.
2. Term.
(i) The term of Employee's employment hereunder shall be for a period
commencing on November 7, 1996 and continuing through December 31,
2001 (the "Normal Term"); provided, however, that effective as of
December 31, 1997, and as of each December 31 thereafter, the
Normal Term shall be extended for an additional 12-month period
unless, not later than six (6) months prior to such December 31,
either party hereto shall have given notice to the other that the
Normal Term shall not be so extended. Notwithstanding the
foregoing, Employee's employment by Employer hereunder may be
earlier terminated, subject to Section 8 hereof. The period of time
between the commencement and termination of Employee's employment
hereunder shall be referred to herein as the "Employment Period."
(i) In the event of a "Change in Control" as defined in Section 8 of
this Agreement, the Normal Term shall be extended for an additional
12-month period.
3. Position and Services.
(i) Employee shall hold the position of ______________________ of
Employer, or such other position as may be determined by the
Employer's Board of Directors (the "Board"). Employee shall have
such duties, responsibilities, and authority with respect to such
position as are consistent with the duties, responsibilities, and
authority he has as of the date of the execution of this Agreement
or such other responsibilities, duties, and authority as from time
to time may be assigned to
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Employee by the Board, including (but not limited to) serving on the Board, if
elected.
(ii) Employee will be expected to be in the full-time employment of
Employer, and to devote all of his business time, attention, and
efforts to the performance of his duties hereunder. Notwithstanding
the foregoing, Employee may make and manage passive personal
business investments of his choice and serve in any capacity with
any civic, educational, or charitable organization, or any trade
association, without seeking or obtaining approval by the Board,
provided such activities and service do not interfere or conflict
with the performance of his duties hereunder or violate the
provisions hereof.
4. Base Salary.
(i) Employer shall pay to Employee an initial base salary at an annual
rate of $_______, subject to applicable income and employment tax
withholdings and all other required and authorized payroll
deductions and withholdings. Employee's salary shall be payable in
accordance with Employer's payroll practices. Employee's annual
base salary may be adjusted during the Employment Period in
accordance with Employer's then-current compensation practices.
During the Employment period, Employee's base salary rate shall not
be reduced below the inital base salary rate provided hereunder, nor
below any increased base salary rate that may be effected as
provided hereunder.
(ii) In the event of a "Change in Control" as defined in Section 8 of
this Agreement, Employee's base salary, as in effect immediately
prior to such Change in Control, shall be increased to 150% of such
base salary.
5. Incentive Pay. In addition to Employee's base salary as provided above,
Employee shall be eligible for an annual cash incentive bonus for each
calendar year during the Employment Period. Such bonus shall provide an
opportunity for Employee to earn additional annual compensation equal to
not less than forty percent (40%) of his base salary under a program of
defined goals, including personal and/or unit and/or group and/or
corporate goals. Employee also shall be entitled to be elected to
Employer's Executive Council by the Board and to participate in Employer's
Long-Term Incentive Pay Plan of Executives in accordance with the terms of
such Plan in effect from time to time during his employment.
6. Employee Benefits and Perquisites. Employee shall be entitled to receive
the same standard employment benefits as similarly situated executive
employees of Employer receive from time to time. Employee shall be
entitled to fully participate in all of Employer's future employee benefit
programs for executive employees generally, in accordance with their then-
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existing terms. Nothing herein shall be interpreted as limiting Employer's
right to amend or terminate any employee benefit plan or program at any time
in any manner as applied to similarly situated executive employees of Employer
generally. Employee shall also be entitled to receive the same standard
perquisites as similarly situated executive employees of Employer receive from
time to time, including, without limitation, the use of an automobile selected
by Employer.
7. Working Facilities. Employee shall be furnished an office, personal
secretary, and other facilities and services suitable to his position and
adequate for the performance of his duties, which shall be substantially
similar to those available from time to time to similarly situated
executive employees of Employer.
8. Termination. This Agreement does not grant Employee any right or
entitlement to be retained by Employer, and shall not affect or prejudice
Employer's right to discharge Employee in accordance herewith. Employer
may terminate Employee's employment hereunder immediately for any reason.
In the event of termination of Employee's employment under the
circumstances described below in this Section 8, Employee shall be
entitled to the severance pay specified herein.
(a) Termination By Employer For Cause. In the event of termination of
Employee's employment hereunder by Employer "For Cause," Employee
shall not be entitled to any severance pay, except as otherwise
provided in any applicable benefits plans of Employer that cover
Employee.
A termination of Employee's employment hereunder by Employer shall
be deemed to have occurred "For Cause" if, within a reasonable
period after such termination, a good faith finding shall be made by
a majority of the Board that such termination occurred as a result
of any of the following: (A) any act committed by Employee which
shall represent a breach in any material respect of any of the terms
of this Agreement and which breach is not cured within thirty (30)
days of receipt by Employee of written notice from Employer of such
breach; (B) improper conduct, consisting of any willful act or
omission with the intent of obtaining, to the material detriment of
Employer, any benefit to which Employee would not otherwise be
entitled; (C) improper conduct consisting of sexual harassment or
act of moral turpitude; (D) gross negligence, consisting of wanton
and reckless acts or omissions in the performance of Employee's
duties to the material detriment of Employer; (E) bad faith in the
performance of Employee's duties, consisting of willful acts or
omissions, to the material detriment of Employer, including
excessive unexcused absence from work; (F) use of illegal drugs or
unauthorized use of alcohol in the workplace or being under the
influence of illegal drugs or alcohol while at work; or (G) any
conviction of, or plea of nolo contendere to, a crime (other than a
traffic violation) that constitutes a felony under the laws of the
United States or any political subdivision thereof. Employer shall
provide written notice to Employee, within a
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reasonable time period, that the Board is convening for purposes of determining
whether Employee's termination of employment was For Cause and Employee (or his
representative) shall have the right to appear before the Board in connection
with such determination.
(b) Termination By Employer Other Than For Cause. In the event of
termination of Employee's employment hereunder by Employer prior to
the end of the Normal Term other than "For Cause" as described
above, Employee shall be entitled to severance payments in the form
of continuation of Employee's base salary, as in effect immediately
prior to such termination, for the remainder of the Normal Term.
For the remainder of the Normal Term Employee shall also receive an
annual payment equal to:
(i) the highest annual bonus paid to Employee with respect to his
performance during the two calendar years preceding his
termination of employment, if such termination is before a
Change in Control; or
(ii) 150% of the highest annual bonus paid to Employee with respect
to his performance during the two calendar years preceding his
termination of employment, if such termination is after a
Change in Control.
Such payment shall be made in equal monthly installments commencing
the first day of the first month following such termination.
(c) Termination By Employee For Good Reason Before Or After A Change In
Control. In the event of termination of Employee's employment
hereunder by Employee prior to the end of the Normal Term "For Good
Reason," Employee shall be entitled to severance payments in the
form of continuation of Employee's base salary, as in effect
immediately prior to such termination, for the remainder of the
Normal Term. For the remainder of the Normal Term Employee shall
also receive an annual payment equal to:
(i) the highest annual bonus paid to Employee with respect to his
performance during the two calendar years preceding his
termination of employment, if such termination is before a
Change in Control; or
(ii) 150% of the highest annual bonus paid to Employee with respect
to his performance during the two calendar years preceding his
termination of employment, if such termination is after a
Change in Control.
Such payment shall be made in equal monthly installments commencing
the first day of the first month following such termination.
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The employment of Employee hereunder shall be deemed to have been
terminated "For Good Reason" upon termination of employment by Employee
following a "constructive termination event," subject to the provisions of
this subsection (c).
For purposes hereof, the following shall constitute constructive
termination events if such events occur prior to a "Change in
Control" (as hereinafter defined): (1) any removal of Employee
from the position of _________________; (2) any substantive
reduction of Employee's duties, responsibilities, or authority; and
(3) a material breach by Employer of any of its obligations to
provide Employee with the compensation and benefits provided in
Sections 4 through 7 hereof.
For purposes hereof, the following shall constitute constructive
termination events if such events occur upon or after a Change in
Control: (1) any reduction of Employee's salary; (2) failure to pay
an annual bonus to Employee for each calendar year that ends after
a Change in Control in an amount representing a percentage of
Employee's salary at least as great as the average of the respective
percentages of Employee's salary represented by Employee's bonuses
for the three most recent calendar years before a Change in Control
(with any of such calendar years during which no bonus was paid to
be counted as 0% years); (3) a material reduction from pre-Change in
Control levels in Employee's employee benefits and perquisites
(other than bonus plans which are covered above), unless Employer
provides a substitute benefit that is at least as favorable on an
after-tax basis; (4) a material reduction in Employee's title,
position, reporting relationship, responsibilities, or authority;
and (5) a relocation of Employee's office by more than thirty-five
(35) miles that increases Employee's travel distance from home.
An event described above as a constructive termination event shall
be treated as a constructive termination event hereunder following
the expiration of thirty (30) days from the date Employee has
notified Employer of the occurrence of such event and his intention
to treat such event as a constructive termination event and
terminate his employment on the basis thereof, provided that
Employer has not cured the constructive termination event before the
expiration of such thirty (30) day period. Any notice given by
Employee under this paragraph shall be effective only if given to
Employer in writing within forty-five (45) days after the event in
question.
A "Change in Control" shall be deemed to have taken place upon the
occurrence of one of the following events:
(1) any "person" (as such term is defined in Section 3 (a) (9) of
the Exchange Act and as used in Sections 13 (d) (3) and 14 (d)
(2) of the Exchange Act) is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 33 1/3
% or more of the combined voting power of the Company's then
outstanding
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securities eligible to vote for the election of the Board (the "Company Voting
Securities"); provided, however, that the event described in this paragraph
shall not be deemed to be a Change in Control by virtue of any of the following
situations: (i) an acquisition by the Company or any of its subsidiaries; (ii)
an acquisition by any employee benefit plan or employee stock plan sponsored or
maintained by the Company or any of its subsidiaries or any trustee or fiduciary
with respect to such plan; or (iii) an acquisition by any underwriter
temporarily holding Company Voting Securities pursuant to an offering of such
securities;
(2) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at
least a majority thereof; provided, however, that any person
becoming a director subsequent to the date hereof, whose
election, or nomination for election, by the Company's
shareholders was approved by a vote of at least two-thirds of
the directors comprising the Incumbent Board who are then on
the Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named
as a nominee for director, without objection to such
nomination) shall be, for purposes of this paragraph (2),
considered as though such person were a member of the
Incumbent Board, but excluding for this purpose any individual
elected or nominated as a director of the Company as a result
of any actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board;
(3) the consummation of a merger, consolidation, share exchange or
similar form of corporate reorganization of the Company or any
of its subsidiaries that requires the approval of the
Company's shareholders, whether for such transaction or the
issuance of securities in connection with the transaction or
otherwise (a "Business Combination"), unless (i) immediately
following such Business Combination: (A) more than 50% of the
total voting power of the corporation resulting from such
Business Combination (the "Surviving Corporation") or, if
applicable, the ultimate parent corporation which directly or
indirectly has beneficial ownership of 100% of the voting
securities eligible to elect directors of the Surviving
Corporation (the "Parent Corporation"), is represented by
Company Voting Securities that were outstanding immediately
prior to the Business Combination (or, if applicable, shares
into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power
among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee
benefit plan or employee stock plan sponsored or maintained by
the Surviving Corporation or Parent Corporation or any trustee
or fiduciary with respect to
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any such plan) is or becomes the beneficial owner, directly or indirectly, of 33
1/3% or more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation), and (C) at least a majority of the
members of the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation), following the Business
Combination, were members of the Incumbent Board at the time of the Board's
approval of the execution of the initial agreement providing for such Business
Combination or (ii) the Business Combination is effected by means of the
acquisition of Company Voting Securities from the Company, and prior to such
acquisition a majority of the Incumbent Board approves a resolution providing
expressly that such Business Combination does not constitute a Change in Control
under this paragraph (3); or
(4) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the
Company and its subsidiaries, other than a sale or disposition
of assets to a subsidiary of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any person acquires beneficial ownership of more than
33 1/3% of the Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company which, by reducing the number of
Company Voting Securities outstanding, increases the percentage of shares
beneficially owned by such person; provided, that if a Change in Control
would occur as a result of such an acquisition by the Company (if not for
the operation of this sentence), and after the Company's acquisition such
person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control shall
then occur.
For purposes of this Section 8 only, the term "subsidiary" means a
corporation of which the Company owns directly or indirectly 50% or more
of the voting power.
(d) Termination At End of Normal Term. In the event that either party
hereto exercises its right under Section 2 hereof to give notice of
non-renewal of this Agreement and Employee's employment terminates
at the end of the Normal Term, Employee shall not be entitled to any
severance pay.
(e) Other Terminations. In the event of termination of Employee's
employment hereunder for any reason other than those specified in
subsections (b) through (d) of this Section 8, Employee shall not be
entitled to any severance pay, except as otherwise provided in any
applicable benefit plans of Employer that cover Employee.
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(f) Accrued Rights. Notwithstanding the foregoing provisions of this
Section 8, in the event of termination of Employee's employment
hereunder for any reason, Employee shall be entitled to payment of
any unpaid portion of his base salary, computed on a pro-rata basis
through the effective date of termination, and payment of any
amounts due to him under the terms of any incentive bonus, stock
option, or employee benefit plan or program of Employer.
(g) Conditions to Severance Benefit.
(i) As conditions of Employee's continued entitlement to the
severance payments provided by this Section 8, Employee is
required to honor in accordance with their terms the
provisions of Section 9, 10, 11, and 12 hereof. In the event
that Employee fails to abide by the foregoing, all payments to
which Employee may otherwise have been entitled under this
Section 8 shall immediately terminate and be forfeited, and
any portion of the base salary continuation payments that may
have been paid to Employee shall forthwith be returned to
Employer. The parties hereto agree that Employee is under no
affirmative obligation to seek to mitigate or offset the
severance payments provided by this Section 8.
(ii) For purposes only of this Section, Employee shall be treated
as having failed to honor the provisions of Sections 9, 10,
11, or 12 hereof only upon the vote of a majority of the Board
following notice of the alleged failure by Employer to
Employee, an opportunity for Employee to cure the alleged
failure within a period of thirty (30) days from the date of
such notice and an opportunity for Employee to be heard on the
issue by the Board.
(h) Potential Excise Taxes. Should any payments made or benefits
provided to Employee under this Agreement be subject to an excise
tax pursuant to Section 4999 of the Internal Revenue Code or any
successor or similar provision thereto, or comparable state or local
tax laws, Employer shall pay to Employee such additional
compensation as is necessary (after taking into account all federal,
state, and local income taxes payable by Employee as a result of the
receipt of such compensation) to place Employee in the same after-tax
position he would have been in, had no such excise tax (or any
interest or penalties thereon) been paid or incurred. Employer
shall pay such additional compensation upon the earlier of: (i) the
time at which Employer withholds such excise tax from any payments
to Employee; or (ii) thirty (30) days after Employee notifies
Employer that Employee has filed a tax return which takes the
position that such excise tax is due and payable in reliance on a
written opinion of Employee's tax advisor that it is more likely
than not that such excise tax is due and payable. If Employee makes
any additional payment with respect to any such excise tax as a
result of an adjustment to Employee's tax liability by any federal,
state, or local authority, Employer shall pay such additional
compensation within
9
thirty (30) days after Employee notifies Employer of such payment.
9. Confidentiality. Employee agrees that he will not at any time during the
term herof or thereafter for any reason, in any fashion, form, or manner,
either directly or indirectly, divulge, disclose, or communicate to any
person, firm, corporation, or other business entity, in any manner
whatsoever, any confidential information or trade secrets concerning the
business of Employer (including the business of any unit thereof),
including, without limiting the generality of the foregoing, the
confidential information described in Exhibit A, which is attached hereto
and incorporated herein by reference. Employee hereby acknolwedges and
agrees that the prohibition against disclosure of confidential information
recited herein is in addition to, and not in lieu of, any rights or
remedies which Employer may have available pursuant to the laws of any
jurisdiction or at common law to prevent the disclosure of confidential
information or trade secrets, and the enforcement by Employer of its
rights and remedies pursuant to this Agreement shall not be construed as
a waiver of any other rights or available remedies which it may possess in
law or equity absent this Agreement.
10. Property of Employer. Employee acknowledges that from time to time in the
course of providing services pursuant to this Agreement he shall have the
opportunity to inspect and use certain property, both tangible and
intangible, of Employer, and Employee hereby agrees that said property
shall remain the exclusive property of Employer, and Employee shall have
no right or proprietary interest in such property, whether tangible or
intangible, including, without limitation, Employer's customer and
supplier lists, contract forms, books of account, computer programs, and
similar property.
11. Non-Competition. Employee agrees that he shall not, during the Employment
Period and for a period of two (2) years after the termination or end
thereof, directly or indirectly compete with Employer by engaging in the
activities set forth in Exhibit B, which is attached hereto and
incorporated herein by reference (the "Prohibited Activities"), within the
geographic area which is set forth on Exhibit C, which is attached hereto
and incorporated herein by reference (the "Restricted Area"). For
purposes of this Section 11, Employee recognizes and agrees that Employer
conducts and will conduct business in the entire Restricted Area and that
Employee will perform his duties for Employer within the entire Restricted
Area. Employee shall be deemed to be engaged in and carrying on said
Prohibited Activities if he engages in said activities in any capacity
whatsoever, including, but not limited to, by or through a partnership of
which he is a general or limited partner or an employee engaged in said
activities, or by or through a corporation or association of which he owns
five percent (5%) or more of the stock or of which he is an officer,
director, employee, member, represnetative, joint venturer, independent
contractor, consultant, or agent who is engaged in said activities.
Employee agrees that during the two (2) year period described above, he
will notify Employer of the name and address of each Employer with whom he
has accepted employment during said period and provide a description of
his position and duties. Such notification shall be made in writing
within thirty (30) days after Employee accepts any such employment.
10
12. Non-Solicitation of Employees. Employee agrees that he shall not, during
the Employment Period and for a period of two years after the termination
thereof, for any reason, directly or indirectly induce or attempt to
induce any employee of Employer to terminate his or her employment.
Employee also will not, without prior written consent of Employer, offer
employment either on behalf of himself or on behalf of any other
individual or entity to any employee of Employer or to any terminated
employee of Employer during the Employment Period and for a period of two
years after the termination thereof for any reason.
13. Breach of Restrictive Covenants. The parties agree that a breach or
violation of Sections 9, 10, 11, or 12 hereof will result in immediate and
irreparable injury and harm to Employer, who shall have, in addition to
any and all remedies of law and other consequences under this Agreement,
the right to an injunction, specific performance or other equitable relief
to prevent the violation of the obligations hereunder.
14. Option Agreement Amendments.
(i) Notwithstanding the provisions of Section 16 of this Agreement, the
provisions of any Stock Option/Non-Compete Agreements between the
Employer and Employee which pre-date this Agreement are amended by
this Agreement as follows:
(a) the definition of Change in Control in any Stock Option/Non-
Compete Agreement is deleted and the definition of Change in
Control contained in Section 8 of this Agreement is
substituted; and
(b) the provisions in Section 3C Additional Compensation in any
Stock Option/Non-Compete Agreement is deleted from such Stock
Option/Non-Compete Agreement.
(ii) In the event of a Change in Control as defined in Section 8, all
unexercised stock options previously granted to Employee shall vest
and become immediately exercisable in full and Employee shall be
entitled to exercise any such rights for the longest period that
could be granted to Employee under the terms of such plan.
15. Notices. Any notice required to be given pursuant to the provisions of
this Agreement shall be in writing and delivered personally or sent by
registered or certified mail, return receipt requested, or by a nationally
recognized overnight courier service, postage or delivery prepaid, to the
party named at the address set forth below, or at such other address as
each party may hereafter designate in a written notice to the other party
delivered in accordance with the terms of this Section 15:
Employer: Policy Management Systems Corporation
One PMS Center
Blythewood, SC 29016
Attention: ____________________
11
Employee: _____________________________
_____________________________
_____________________________
Any such notices shall be deemed to have been delivered when served
personally or, in the case of Notices sent by registered or certified mail
or courier, upon signature acknowledging receipt thereof.
16. Entire Agreement.
(a) Change, Modification, Waiver. No change or modification of this
Agreement shall be valid unless it is in writing and signed by each
of the parties hereto. No waiver of any provision of this Agreement
shall be valid unless it is in writing and signed by the party
against whom the waiver is sought to be enforced. The failure of a
party to insist upon strict performance of any provision of this
Agreement in any one or more instances shall not be construed as a
waiver or relinquishment of the right to insist upon strict
compliance with such provision in the future.
(b) Integration of All Agreements. This Agreement constitutes the
entire Agreement between the parties hereto with regard to the
subject matter hereof, and there are no agreements, understandings,
specific restrictions, warranties, or representations relating to
said subject matter between the parties other than those set forth
herein or herein provided for.
(c) Severability of Provisions. In the event that any one or more of
the provisions of this Agreement or any word, phrase, clause,
sentence, or other portion thereof (including without limitation the
geographical and temporal restrictions contained herein) shall be
deemed to be illegal or unenforceable for any reason, such provision
or portion thereof shall be modified or deleted in such a manner so
as to make this Agreement as modified legal and enforceable to the
fullest extent permitted under applicable laws.
17. Assignment. The rights, duties, and obligations under this Agreement may
not be assigned by either party, except that if there is a Change in
Control as defined in Section 8, Employer may assign its rights and
obligations hereunder to the person, corporation, partnership, or other
entity which has gained such control. In addition, this Agreement shall
be assignable by Employer to any entity acquiring all or substantially all
of the assets of Employer. The provisions of this Agreement shall be
binding on any such assignee.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of South Carolina.
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19. Miscellaneous.
(a) Form. As employed in this Agreement, the singular form shall
include, if appropriate, the plural.
(b) Headings. The headings employed in this Agreement are solely for
the convenience and reference of the parties and are not intended to
be descriptive of the entire contents of any paragraph and shall not
limit or otherwise affect any of terms, provisions, or construction
thereof.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall take effect as an original and all of which shall
evidence one and the same Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
EMPLOYER:
EMPLOYEE:
13
EXHIBIT A
CONFIDENTIAL INFORMATION
1. All software/systems (including all present, planned, and future software)
whether licensed or unlicensed, developed by or on behalf of, or otherwise
acquired by Policy Management Systems Corporation or any of its
subsidiaries.
"All software/system" shall mean:
all code in whatever form
all data pertaining to the architecture and design of such software systems
all documentation in whatever form
all flowcharts
any reproduction or recreation in whole or in part of any of the above in
whatever form.
2. All business plans and strategies including:
strategic plans
product plans
marketing plans
financial plans
operating plans
resource plans
all research and development plans including all data produced by such
efforts.
3. Internal policies, procedures, methods, and approaches which are unique to
Policy Management Systems Corporation and are non-public.
4. Any information relating to the employment, job responsibility,
performance, salary, and compensation of any present or future officer
or employee of Policy Management Systems Corporation.
14
EXHIBIT B
Acting in any capacity, either individually or with any corporation,
partnership, or other entity, directly or indirectly, in providing, or
proposing to provide,data processing software systems,related automation
support services and information services to the insurance industry, including,
but not limited to,application software, processing, consulting, and related
services, in the performance of any of the following types of duties in any
part of the insurance industry:
1. The performance of the sales and marketing functions.
2. The responsibility for sales revenue generation.
3. The responsibility for customer satisfaction.
4. The responsibility for research and development of insurance database
products.
5. The responsibility for the research and development of information data
processing systems
and services.
6. The providing of input to pricing of products.
7. The planning and management of data processing services resources.
8. The coordination of the efforts of the various aspects of computer systems
services
organizations with other functions.
9. The planning and management of information services resources.
10. The providing and management of an operations staff to support the above
listed activities.
15 EXHIBIT C
RESTRICTED AREA
Fifty mile radius of the city limits of the following cities:
Toronto, Canada Birmingham, Alabama
Columbus, Ohio Minneapolis, Minnesota
Cincinnati, Ohio San Diego, California
Chicago, Illinois Melbourne, Australia
Dallas/Fort Worth, Texas Indianapolis, Indiana
Los Angeles, California St. Paul, Minnesota
Boston, Massachusetts Denver, Colorado
Philadelphia, Pennsylvania Mobile, Alabama
Hartford, Connecticut Seattle, Washington
San Francisco, California Bloomington, Illinois
New York City, New York Des Moines, Iowa
Columbia, South Carolina San Juan, Puerto Rico
Sydney, Australia El Paso, Texas
Honolulu, Hawaii Detroit, Michigan
Jacksonville, Florida Phoenix, Arizona
Milwaukee, Wisconsin San Antonio, Texas
Montreal, Canada Baltimore, Maryland
Kansas City, Missouri San Jose, California
Stanford, Connecticut Memphis, Tennessee
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EXHIBIT C CONTINUED
Oklahoma City, Oklahoma Washington, D.C.
Atlanta, Georgia New Orleans, Louisiana
Houston, Texas London, England
Miami, Florida Paris, France
Princeton, New Jersey St. Louis, Missouri
Cleveland, Ohio Nashville, Tennessee