Exhibit 10.1

TRANSITION AND RETIREMENT AGREEMENT

THIS TRANSITION AND RETIREMENT AGREEMENT is made and entered into as of the 23rd day of June, 2014 (this “Retirement Agreement”) by and between PHILIP W. TOMLINSON, an individual resident of the State of Georgia (“Executive”), and TOTAL SYSTEM SERVICES, INC., a corporation organized and existing under the laws of the State of Georgia (the “Company”).

W I T N E S S E T H:

WHEREAS, Executive has served as the Company’s Chief Executive Officer (“CEO”) since January 1, 2004 and prior to that date, in various other employment and management capacities with the Company;

WHEREAS, Executive has decided to retire from his position as CEO effective July 31, 2014 and assume the status of Executive Chairman of the Board; and

WHEREAS, it is the desire of the Company to provide for a smooth and orderly transition of its executive leadership;

NOW THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, Executive and the Company, intending to be legally bound, do hereby agree as follows:

SECTION I.

RETIREMENT AS CEO AND SERVICE AS EXECUTIVE CHAIRMAN

Executive will retire as CEO effective as of July 31, 2014 and will continue thereafter in employment with the Company as its Executive Chairman of the Board of Directors (“Executive Chairman”) until the annual meeting of the Company’s shareholders on April 28, 2015 (the “2015 Annual Meeting”). In his capacity as Executive Chairman, Executive will assist in the smooth and orderly transition of the Company’s executive leadership, support the Company’s business development activities by working to maintain client relationships, and perform such other duties reasonably requested of Executive by the Chief Executive Officer of the Company. Executive’s employment with the Company will terminate immediately prior to the 2015 Annual Meeting and in consideration of the benefits provided to Executive under this Retirement Agreement, Executive agrees to execute a general waiver and release of claims against the Company and its affiliates in the form of Exhibit A to this Retirement Agreement (the “Release”) within thirty (30) days after his termination of employment.

SECTION II.

SALARY AND BENEFITS

Effective August 1, 2014 and through April 28, 2015, Executive’s annual base salary will be Seven Hundred Thousand Dollars ($700,000.00) prorated on a calendar year basis, less applicable withholdings, and such base salary will be paid in accordance with the standard

 

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payroll practices for executive officers of the Company. Executive’s cash bonus under the Company’s Annual Incentive Program for 2014, if any, shall be based on his actual base salary paid during 2014, taking into account his transition to being compensated as Executive Chairman effective August 1, 2014. The option and performance share awards made to Executive during 2012 under the Company’s Long-Term Incentive Program for the 2012 – 2014 performance period will continue to vest in accordance with their terms while Mr. Tomlinson is employed as Executive Chairman.

During his employment as Executive Chairman, Executive will be entitled to all of the employee benefits and perquisites generally provided to other executive officers of the Company; provided, however, that Executive will not be eligible for bonuses or equity or other awards under the Company’s Annual Incentive Program or the Company’s Long-Term Incentive Program for periods beginning after December 31, 2014.

SECTION III.

RESTRICTIVE COVENANTS

On the date hereof, Executive agrees to enter into the Restrictive Covenant Agreement attached to this Retirement Agreement as Exhibit B, which shall be effective as provided therein.

SECTION IV.

BOARD OF DIRECTORS

The Corporate Governance and Nominating Committee of the Company intends, after discussion with Executive at that time, to consider the nomination of Executive for election to the Board of Directors at the 2015 Annual Meeting and thereafter.

SECTION V.

EQUITY AWARDS FOR 2013 AND 2014

The options and performance share awards made to Executive during 2013 and 2014 under the Company’s 2012 Omnibus Plan, as described in more detail on Exhibit C to this Retirement Agreement (the “Awards”) hereby are amended to add the following sentence to the end of each Award: “Notwithstanding any contrary provision, if Tomlinson is elected as a non-employee director of the Company at the annual meeting of the Company’s shareholders in 2015 (the “2015 Annual Meeting”), his continuous service as a non-employee director from and after the 2015 Annual Meeting will be treated as employment with the Company for purposes of vesting, and his termination of service as a non-employee director will be treated as a termination of employment under this award.” Except as amended herein, the terms of each Award will remain the same.

 

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SECTION VI.

CONSULTING RELATIONSHIP

On the date hereof, the Company and Executive agree to enter into the Consulting Agreement attached to this Retirement Agreement as Exhibit D, which shall be effective as provided therein.

SECTION VII.

MISCELLANEOUS

7.1 Governing Law. This Retirement Agreement shall be governed by and interpreted under the laws of the State of Georgia without regard to its conflict or choice of law provisions.

7.2 Notices. All notices or other communications required or permitted hereunder or necessary and convenient in connection herewith shall be in writing and delivered in person or by express delivery service or postage prepaid first class mail, return receipt requested, to the following address:

If to Executive:

Philip W. Tomlinson

7498 Rolling Bend Road

Columbus, GA. 31904

If to the Company:

Total System Services, Inc.

Attn: General Counsel

One TSYS Way

Post Office Box 1755

Columbus, Georgia 31902

Or to such other addresses as Executive or the Company may designate by notice to the other parties hereto in the manner set forth in Section 7.2.

7.3 Entire Agreement. This Retirement Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and may not be changed or amended except upon written amendment executed by the parties hereto.

7.4 Assignment. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of Executive hereunder shall not be assignable in whole or in part by Executive.

 

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7.5 Counterparts. This Retirement Agreement may be executed in two or more counterparts (including electronically, such as by telefax or email), each of which, when executed, shall be deemed an original instrument.

IN WITNESS WHEREOF, the Company has caused this Retirement Agreement to be executed on its behalf and Executive has hereunto set his hand and seal, as of the day and year first above written.

 

 

 

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EXHIBIT A

WAIVER AND RELEASE

I, PHILIP W. TOMLINSON, am executing this Waiver and Release (this “Release”) pursuant to Section I of that certain Transition and Retirement Agreement dated June 23, 2014 between TOTAL SYSTEM SERVICES, INC. (the “Company” or “TSYS”) and me (the “Agreement”). Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.

1. General Release.

(a) In consideration of the benefits provided under the Agreement, I, for and on behalf of myself and each of my heirs, administrators, executors, personal representatives, beneficiaries, successors and assigns, fully and completely release the Company, its affiliates, and each of their respective current and former officers, directors, managers, members, partners, shareholders, agents, employees, employee benefit plans and fiduciaries, trustees, insurers, representatives, attorneys, transferees, successors and assigns (collectively, the “Releasees”), collectively, separately, and severally, of and from any and all claims, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen, unforeseen, known or unknown, which I have had, now have, or may have against the Releasees (or any of them) from the beginning of time up until the time I sign this Release, with the exception of (i) any claims which cannot be waived by private agreement and (ii) any claims which may arise after the date I sign this Release. Subject to the limitations in the immediately preceding sentence, this general release of claims includes all claims arising under any federal, state or local statute or ordinance, constitutional provision, public policy or common law, including all claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act, the Civil Rights Act of 1866, the Civil Rights Act of 1871, Executive Order 11246, the Employee Retirement Income Security Act (with respect to unvested benefits), the Consolidated Omnibus Budget Reconciliation Act, the Americans with Disabilities Act, the Rehabilitation Act, the Family and Medical Leave Act of 1993, the Worker Adjustment and Retraining Notification Act, the Georgia Equal Pay Act, the Georgia Prohibition of Age Discrimination in Employment Act, and the Georgia Equal Employment for People with Disabilities Code, all as amended; all claims for breach of any express or implied contract; all claims for breach of any covenant of good faith and fair dealing; all claims for promissory estoppel or detrimental reliance; all claims for wages, bonuses, incentive compensation, fringe benefits and severance allowances or entitlements; all tort claims (including claims for fraud, slander, libel, defamation, disparagement, and negligent or intentional infliction of emotional distress); all claims for compensatory or punitive damages, or any other claim for damages or injury of any kind whatsoever; and all claims for monetary recovery, including, without limitation, attorneys’ fees, experts’ fees, medical fees or expenses, costs and disbursements. I hereby irrevocably and unconditionally waive and relinquish any right to obtain or receive reinstatement or any monetary, injunctive, or other relief through any suit, complaint, action or proceeding commenced or maintained in any court, agency, or other forum by me or on my behalf for or on account of any of the claims released in this Release.

 

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(b) I understand that the release of claims set forth in section 1(a) above includes a release of any claims I may have against the Releasees under the Age Discrimination in Employment Act, as amended (the “ADEA”). I acknowledge that I have been given a period of at least 21 days from the date this Release was initially delivered to me to decide whether to sign it (the “Consideration Period”). If I decide to sign this Release before the expiration of the Consideration Period, which is solely my choice, I represent that my decision is knowing and voluntary. I agree that any revisions made to this Release after it was initially delivered to me were either not material or were requested by me, and do not re-start the Consideration Period. I acknowledge that the Company has advised me in writing to consult with an attorney prior to signing this Release.

(c) I understand that I may revoke this Release within seven days after I have signed it, and that this Release will not become effective or enforceable until the eighth day after I have signed it without having revoked it (the “Effective Date”). I understand that in the event I choose to revoke this Release, I must notify the Company in writing addressed to the Company’s designated agent for this purpose:

Total System Services, Inc.

Attn: General Counsel

One TSYS Way

Post Office Box 1755

Columbus, Georgia 31902.

2. Acknowledgments. I agree that (a) I am not entitled to any additional payments or benefits from the Company, except as set forth in the Agreement or as required by law; (b) I have suffered no harassment, retaliation, employment discrimination, or work-related injury or illness, and have filed no claim, charge, suit or other action or proceeding against the Company; (c) I am not aware of any act, failure to act, practice, policy, or activity of the Company that I consider to be or to have been unlawful or potentially unlawful; and (d) I have returned all Company property in my possession or control, and I have deleted or destroyed all documents and information containing any Confidential Information that are stored on any devices, networks, storage locations, and media that are not owned by the Company but in my possession or control.

3. Governing Law. This Release shall be deemed to be made in, and in all respects shall be interpreted, construed, and governed by and in accordance with the laws of the State of Georgia, irrespective of its choice-of-law rules. Any action arising under or related to this Release shall be filed exclusively in the state of federal courts with jurisdiction over Muscogee County, Georgia, and I understand and hereby consent to the jurisdiction and venue of such courts.

4. Severability. Should any provision of this Release be declared or determined by any court of competent jurisdiction to be unenforceable or invalid for any reason, the validity of the remaining parts, terms or provisions of this Release shall not be affected thereby and the invalid or unenforceable part, term or provision shall be deemed not to be a part of this Release.

 

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ACCEPTED AND AGREED:

PHILIP W. TOMLINSON

Date

 

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EXHIBIT B

RESTRICTIVE COVENANT AGREEMENT

This RESTRICTIVE COVENANT AGREEMENT (this “Agreement”) is dated as of June 23, 2014, is between TOTAL SYSTEM SERVICES, INC., a corporation organized under the laws of the State of Georgia (the “Company”), and PHILIP W. TOMLINSON, a resident of the State of Georgia (“Executive”), and shall be effective on the date on which Executive is no longer a member of the Board of Directors of the Company (the “Effective Date”). In consideration of the employment or continued employment of Executive with the Company, the benefits provided to Executive under that certain Transition and Retirement Agreement between the parties dated as of the date hereof (the “Retirement Agreement”), and other good and valuable consideration, including all compensation and benefits paid by the Company to Executive, the receipt and sufficiency of which is acknowledged by the parties, the parties agree:

1. Acknowledgments.

(a) Executive acknowledges that during the course of Executive’s employment with the Company, Executive has had or will have access to Confidential Information (as defined below). Executive understands and agrees that such Confidential Information is of great competitive importance and commercial value to the Company and its affiliates (collectively, the “Company Group”), and that the improper use or disclosure of such Confidential Information by Executive would cause irreparable harm to the Company Group. Accordingly, Executive agrees that the restrictive covenants contained in this Agreement are reasonable, fair, and necessary to protect the Company Group’s legitimate business interests in safeguarding its Confidential Information and that any claim or cause of action of Executive against the Company Group will not constitute a defense to the enforcement of such restrictive covenants.

(b) Executive acknowledges that an important part of Executive’s duties is, has been, or will be to advance the business of the Company Group by directly or through the supervision of others, developing and maintaining substantial relationships with prospective or existing clients of the Company Group and/or developing and maintaining the goodwill of the Company Group associated with (i) an ongoing business, commercial or professional practice, or (ii) a specific geographic location, or (iii) a specific marketing or trade area.

(c) Executive acknowledges that in the course of Executive’s employment with the Company, Executive has, does or will customarily and regularly solicit clients or prospective clients and/or customarily and regularly engage in making sales or obtaining contracts for products or services to be performed by others, and/or perform each of the following duties: (i) have the primary duty of managing the enterprise in which the Executive is employed; (ii) customarily and regularly direct the work of two or more employees; and (iii) have the authority to hire or fire other employees or have particular weight given to Executive’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other

 

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change of status of other employees and/or by reason of the Company Group’s investment of time, training, money, trust, exposure to the public, or exposure to clients, vendors, or other business relationships, (x) gain a high level of notoriety, fame, reputation, or public persona as the Company Group’s representative or spokesperson or (y) gain a high level of influence or credibility with the Company Group’s clients, vendors, or other business relationships and/or be intimately involved in the planning for or direction of the business of the Company Group or a defined unit of the business of the Company Group and/or obtain selective or specialized skills, knowledge, abilities, or client contacts or information.

2. Protection of Confidential Information.

(a) Non-disclosure of Confidential Information. From and after the Effective Date, Executive shall hold in confidence all Confidential Information and shall not, either directly or indirectly, use, transmit, copy, publish, reveal, divulge or otherwise disclose or make accessible any Confidential Information to any person or entity without the prior written consent of the General Counsel of the Company. Executive’s obligation of non-disclosure as set forth herein shall continue for so long as the information in question continues to constitute Confidential Information. The restrictions in this section 2 are in addition to and not in lieu of any other obligations of Executive to protect Confidential Information, including, but not limited to, obligations arising under the Company Group’s policies, ethical rules, applicable law, or any other contract or agreement. Nothing in this Agreement is intended to or should be interpreted as diminishing any rights and remedies the Company Group has under applicable law related to the protection of confidential information or trade secrets.

(b) Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means data or information relating to the business of the Company Group that has been or will be disclosed to Executive or of which Executive becomes aware as a consequence of or through Executive’s relationship with the Company Group and which has value to the Company Group or, if owned by someone else, has value to that third party, and is not generally known to the Company Group’s competitors. Confidential Information includes, but is not limited to, trade secrets, information regarding clients, contractors and the industry not generally known to the public, strategies, methods, books, records and documents, technical information concerning products, equipment, services and processes, procurement procedures, pricing and pricing techniques, information concerning past, current and prospective clients, investors and business affiliates, pricing strategies and price curves, plans or strategies for expansion or acquisitions, budgets, research, financial and sales data, communications information, evaluations, opinions and interpretations of information and data, marketing and merchandising techniques, electronic databases, models, specifications, computer programs, contracts, bids or proposals, technologies and methods, training methods and processes, organizational structure, personnel information, payments or rates paid to consultants or other service providers, and other such confidential or proprietary information, whether such information is developed in whole or in part by Executive, by others in the Company Group or obtained by the Company Group from third parties, and irrespective of whether such information has been identified by the Company Group as secret or confidential. Confidential Information does not include any data or information that has been voluntarily disclosed to the public by the Company Group (except where such public disclosure has been made by Executive without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means.

 

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(c) Notice to Company Group. In the event Executive is requested or required pursuant to any legal, governmental, or investigatory proceeding or process or otherwise to disclose any Confidential Information, Executive shall promptly notify the General Counsel of the Company in writing (in no event later than five business days prior to the disclosure unless disclosure is required in less than five days, in which event Executive shall notify the Company Group as soon as possible), so that the Company Group may seek a protective order or other appropriate remedy, or, if it chooses, waive compliance with the applicable provision of this Agreement. Executive shall cooperate with the Company Group to preserve the confidentiality of such Confidential Information consistent with applicable law or court order, and shall use Executive’s best efforts to limit any such disclosure to the minimum disclosure necessary to comply with such law or court order.

3. Protection Against Unfair Competition. Executive agrees and covenants that for a period of two (2) years from and after the Effective Date, Executive shall not, directly or indirectly, whether through Executive or through another person or entity, perform any of the Prohibited Activities (as defined below) in the Territory (as defined below) or any part thereof for or on behalf of Executive or any other person or entity that competes with the Business of the Company Group (as defined below) or any part thereof.

(a) For purposes of this Agreement, Executive’s “Prohibited Activities” means activities of the type conducted, provided, or offered by Executive pursuant to this Agreement within two (2) years prior to the Effective Date, including supervisory, management, operational, business development, maintenance of client relationships, corporate strategy, community relations, public policy, regulatory strategy, sales, marketing, investor relations, financial, accounting, human resource, technical and other similar or related activities and including service as a director or in any similar capacity.

(b) For purposes of this Agreement, the “Territory” means the United States of America, Mexico, Canada, Europe, and Brazil plus any other geographic area(s) in which Executive is performing services for or on behalf of the Company Group as of the Effective Date.

(c) For purposes of this Agreement, the “Business of the Company Group” means the business of (a) providing payment processing, merchant services and related payment services to financial and nonfinancial institutions, and (b) providing general-purpose reloadable prepaid debit cards and payroll cards and alternative financial services to underbanked consumers and others, or similar or related businesses or activities conducted, authorized, offered or provided by the Company Group within two (2) years prior to the Effective Date.

4. Non-solicitation of Clients. Executive agrees and covenants that for a period of two (2) years from and after the Effective Date, Executive shall not solicit or attempt to solicit, directly or by assisting others, any business from any of the Company Group’s clients, including actively sought prospective clients, with whom Executive had Material Contact during Executive’s employment, during Executive’s service as a director or during any other provision of services to the Company Group, in each case for purposes of providing products or services that are competitive with those provided by the Company Group.

 

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(a) For purposes of this Agreement, products or services shall be considered competitive with those provided by the Company Group if such products or services are of the type conducted, authorized, offered or provided by the Company Group within two (2) years prior to the Effective Date.

(b) For purposes of this Agreement, the term “Material Contact” means contact between Executive and each client or potential client (i) with whom Executive dealt on behalf of the Company Group, (ii) whose dealings with the Company Group were coordinated or supervised by Executive, (iii) about whom the Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Company Group, or (iv) who receives products or services authorized by the Company Group, the sale or possession of which results or resulted in possible compensation, commissions, or earnings for Executive within two (2) years prior to the Effective Date.

5. Non-solicitation of Employees. Executive agrees and covenants that for a period of two (2) years from and after the Effective Date, Executive shall not solicit or attempt to solicit, directly or by assisting others, any person who was an employee of the Company Group on, or within six (6) months before, the date of such solicitation or attempted solicitation and with whom Executive had contact while employed by, or serving as a director of, the Company, for purposes of inducing such person to leave the employment of the Company Group.

6. Non-disparagement. Executive agrees not to make, publish or communicate to any person or entity or in any public forum (including social media) at any time any defamatory or disparaging remarks, comments or statements concerning any of the Company Group, any of its affiliates, or any of their respective directors, officers and employees. Notwithstanding the foregoing, this section 6 does not in any way, restrict or impede Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency.

7. Enforcement. Executive acknowledges and agrees that a breach of any of the restrictive covenants set forth in this Agreement would cause irreparable damage to the Company Group, the exact amount of which would be difficult to determine, and that the remedies at law for any such breach would be inadequate. Accordingly, Executive agrees that, in addition to any other remedy that may be available at law, in equity, or hereunder, the Company Group shall be entitled to specific performance and injunctive relief, without posting bond or other security, to enforce or prevent any breach of any of the restrictive covenants set forth in this Agreement. In any action for injunctive relief, the prevailing party will be entitled to collect reasonable attorneys’ fees and other reasonable costs from the non-prevailing party.

8. Tolling. In the event the enforceability of any of the restrictive covenants in this Agreement are challenged in a claim or counterclaim in court during the time periods set forth in this Agreement for such restrictive covenants, and Executive is not immediately enjoined from breaching any of the restrictive covenants herein, then if a court of competent jurisdiction later

 

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finds that the challenged restrictive covenant is enforceable, the time periods set forth in the challenged restrictive covenant(s) shall be deemed tolled upon the filing of the claim or counterclaim in court seeking or challenging the enforceability of this Agreement until the dispute is finally resolved and all periods of appeal have expired; provided, however, that to the extent Executive complies with such restrictive covenant(s) during such challenge, the time periods set forth in the challenged restrictive covenant(s) shall not be deemed tolled.

9. Notification to Subsequent Employer. Executive agrees to notify any subsequent employer or entity for which Executive would serve as a member of the board of directors of such entity or in a similar capacity of the existence and terms of this Agreement. In addition, Executive authorizes the Company Group to provide a copy of this Agreement to third parties, including but not limited to Executive’s subsequent, anticipated, or possible future employers or entities on which Executive may serve or intend to serve on their board of directors or in a similar capacity.

10. Proprietary Rights.

(a) Ownership of Work Product. Executive acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, ideas and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Executive individually or jointly with others during the period of Executive’s employment by, or service as a director of, the Company and relating in any way to the business or contemplated business, research or development of the Company (regardless of when or where the Work Product is prepared or whose equipment or other resources is used in preparing the same) and all printed, physical and electronic copies, all improvements, rights and claims related to the foregoing, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), patents and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions and renewals thereof (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.

(b) Work Made for Hire; Assignment. Executive acknowledges that, by reason of being employed by, or serving as a director of, the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, Executive hereby irrevocably assigns to the Company, for no additional consideration, Executive’s entire right, title and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement is to be construed as reducing or limiting the Company’s rights, title or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.

 

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(c) Further Assurances; Power of Attorney. During and after Executive’s employment by, or service as a director of, the Company, Executive agrees to reasonably cooperate with the Company to (i) apply for, obtain, perfect and transfer to the Company all Work Product as well as all Intellectual Property Rights in the Work Product in any jurisdiction in the world, and (ii) maintain, protect and enforce the same, including, without limitation, executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments and other documents and instruments as may be requested by the Company. Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on Executive’s behalf in Executive’s name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, issuance, prosecution and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if Executive does not promptly cooperate with the Company’s request (without limiting the rights the Company may have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be effected by Executive’s subsequent incapacity.

(d) No License. Executive understands that this Agreement does not, and shall not be construed to, grant Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software or other tools made available to Executive by the Company.

11. Use of IT Systems. Executive acknowledges and agrees that all contents of the Company Group’s information technology resources and communications systems (collectively, “IT Systems”) are the property of the Company Group. Executive shall not transmit any Trade Secrets, Confidential Information or Work Product stored in the Company’s IT Systems to or via any unsecure source, including Executive’s personal e-mail accounts or electronic storage devices. Executive has no expectation of privacy whatsoever in any e-mail, file, data, document, facsimile, telephone conversation, public social media post, conversation or message, or any other kind or form of information or communication transmitted to, received or printed from, or stored or recorded on the Company Group’s IT Systems. Executive acknowledges and agrees that the Company Group has the right to monitor, intercept and review, without further notice, Executive’s activities using the Company Group’s IT Systems, including but not limited to e-mail (both outgoing and incoming), telephone conversations and voice mail recordings, instant messages and Internet and public social media postings and activities, and Executive consents to such monitoring.

12. Return of Property. Upon the Effective Date, or upon the Company Group’s request at any time, Executive shall (a) immediately deliver to the Company Group all property owned by the Company Group, including, without limitation, keys, access cards, identification cards, security devices, credit cards, network access devices, computers, hard drives, thumb drives or other removable information storage devices, cell phones, documents, and any other materials belonging to the Company Group (including but not limited to those that constitute or contain any Confidential Information), together with all copies of the foregoing; and (b) permanently erase all Confidential Information from any non-Company Group computer systems and electronic storage devices that are within Executive’s possession or control.

 

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13. No Claims; No Conflicts. Executive agrees that Executive does not and will not assert any rights to any Confidential Information or Work Product (including any inventions, discoveries, concepts or ideas, or improvements thereof or know-how related thereto) as having been made or acquired by Executive before Executive’s employment with the Company or service as a director, or since the commencement of Executive’s employment with or service as a director of the Company, and expressly warrants that any such rights or potential rights are subject to and governed by this Agreement. Executive further represents that Executive’s performance of all of the terms of this Agreement, and the performance of Executive’s duties as an employee or director of the Company, do not and will not breach any agreement with any other person or entity. Executive represents and warrants that Executive has not entered into, and will not enter into, any agreement that would conflict with this Agreement, including any employment, non-competition, non-solicitation, or confidentiality agreement. Executive agrees that Executive will, if requested by the Company, deliver to the Company a complete copy of any employment, non-competition, non-solicitation or confidentiality agreement, or related agreement, to which Executive is or was a party and that remains or may remain in effect.

14. Notices.

(a) All notices provided for or required by this Agreement shall be in writing and shall be deemed to have been properly given when sent to the other party by facsimile (confirmation of receipt required) or when received by the other party if mailed by certified or registered mail, return receipt requested, as follows:

 

If to the Company:		Total System Services, Inc.
		Attn: General Counsel
		One TSYS Way
		Post Office Box 1755
		Columbus, Georgia 31902
If to Executive:		Philip W. Tomlinson
		7498 Rolling Bend Road
		Columbus, Georgia, 31904

(b) Either party hereto may change the address to which notice is to be sent by written notice to the other party in accordance with the provisions of this section 14.

15. Entire Agreement. This Agreement constitutes a single integrated contract expressing the entire agreement of the parties, and supersedes and replaces any and all other agreements, written or oral, express or implied, between Executive and the Company concerning the subject matter hereof, with the express exception of the Retirement Agreement and the agreements contemplated thereby, which survive and remain in full force and effect.

16. Waiver. The waiver by any party to this Agreement of a breach of any of the provisions of this Agreement shall not operate or be construed as a waiver of any subsequent or simultaneous breach of the same or different provisions.

 

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17. Governing Law; Venue. This Agreement shall be deemed to be made in, and in all respects shall be interpreted, construed, and governed by and in accordance with the laws of the State of Georgia, irrespective of its choice-of-law rules. Any action arising under or related to this Agreement, Executive’s employment with the Company, or the cessation of Executive’s employment with the Company shall be filed exclusively in the state or federal courts with jurisdiction over Muscogee County, Georgia or Fulton County, Georgia and each of the parties hereby consents to the jurisdiction and venue of such courts.

18. Assignability. This Agreement is personal to Executive and may not be assigned by Executive. Any purported assignment by Employee shall be null and void from the initial date of the purported assignment. This Agreement shall be assignable by the Company and shall inure to the benefit of the Company and its successors and assigns.

19. Headings and Captions. The headings and captions used in this Agreement are for convenience of reference only, and shall in no way define, limit, expand or otherwise affect the meaning or construction of any provision of this Agreement.

20. Severability. Should any provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid for any reason, the validity of the remaining parts, terms or provisions of this Agreement shall not be affected thereby and the invalid or unenforceable part, term or provision shall be deemed not to be a part of this Agreement.

21. Third Party Beneficiaries. The parties agree that the Company Group and each member thereof are intended third party beneficiaries of this Agreement, with full rights to enforce this Agreement. Except as stated in the preceding sentence, this Agreement does not confer any rights or remedies upon any person or entity other than the parties to this Agreement and their respective successors and permitted assigns.

22. Interpretation. No provision of this Agreement or any related document shall be construed against or interpreted to the disadvantage of any party hereto by reason of such party’s having or being deemed to have structured or drafted such provision.

23. Modification. No provision of this Agreement may be modified or waived except in writing signed by Executive and a duly authorized representative of the Company. The writing shall specifically reference this Agreement and the provision that the Company and Executive intend to waive or modify. Notwithstanding the foregoing, if it is determined by a court of competent jurisdiction that any restrictive covenant set forth in this Agreement is excessive in duration or scope or is unreasonable or unenforceable, it is the intention of the parties that such restriction may be modified by the court to render it enforceable to the maximum extent permitted by law.

24. Survival. Executive’s obligations under this Agreement shall survive the termination of Executive’s employment and his service as director, in each case for any reason, and shall thereafter be enforceable whether or not such termination is claimed or found to be wrongful or to constitute or result in a breach of any contract or of any other duty owed or claimed to be owed to Executive by the Company.

 

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25. Counterparts. This Agreement may be executed in two or more counterparts (including electronically, such as by telefax or email), each of which will be deemed an original, and all of which together will constitute one document.

IN WITNESS WHEREOF, the parties are signing this Agreement as of the date stated in the preamble.

 

 

 

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EXHIBIT C

AWARDS

 

Award

Grant Date

Exercise Price

Number of Shares

Expiration Date

2013-2015 LTIP Nonqualified Option

April 1, 2013

$

24.44

234,759

March 31, 2023

2014-2016 LTIP Nonqualified Option

March 18, 2014

$

30.83

253,775

March 17, 2024

2013-2015 Sr. Executive Performance Share

April 1, 2013

NA

70,428

NA

2014-2016 Sr. Executive Performance Share

March 18, 2014

NA

55,831

NA

 

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EXHIBIT D

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT is made and entered into as of the 23rd day of June, 2014 (this “Consulting Agreement”) by and between PHILIP W. TOMLINSON, an individual resident of the State of Georgia (“Consultant”), and TOTAL SYSTEM SERVICES, INC., a corporation organized and existing under the laws of the State of Georgia (the “Company”).

WITNESSETH:

WHEREAS, Consultant has served as the Company’s Executive Chairman from July 31, 2014 to April 28, 2015 and as its Chief Executive Officer from January 1, 2004 to July 31, 2014 and prior to that date, in various other employment and management capacities with the Company;

WHEREAS, Consultant will be retiring from his position as a director of the Company on an as of yet undetermined future date (the “Retirement Date”); and

WHEREAS, it is the desire of the Company to provide for a smooth and orderly transition of its executive leadership and to avail itself of the knowledge and experience of Consultant in selected areas where his advice, counsel and efforts can assist in such transition and support the Company’s business development activities by working to maintain client relationships and performing such other services as may be reasonably requested of Consultant by the Chief Executive Officer of the Company (the “CEO”) for a period of two years from and after the Retirement Date.

NOW THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, Consultant and the Company, intending to be legally bound, do hereby agree as follows:

SECTION I.

CONSULTING RELATIONSHIP

The Company hereby engages Consultant, and Consultant hereby accepts such engagement to perform such consulting and advisory services as may be requested from time to time by the CEO, including services related to business development, maintenance of client relationships, executive and board development and such other matters as may be requested by the CEO.

The CEO and Consultant will agree on the appropriate work schedule necessary to accomplish the requested services and desired results. Consultant will control the means, methods, time, resources, and manner required to perform the consulting and advisory services requested from him. Consultant shall comply with all applicable laws, rules and regulations with regard to his performance of services and observe all reasonable policies and directives promulgated from time to time by the Company with respect to the consulting services to be

 

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rendered under this Consulting Agreement. Unless otherwise specifically agreed upon in writing, Consultant shall not have any authority to act as the Company’s agent for any purposes, and shall not have the authority to bind the Company or to otherwise incur any liability or obligation in the name or on behalf of the Company.

SECTION II.

TERM OF ENGAGEMENT

2.1 Consultant’s engagement under this Consulting Agreement shall commence as of the first day after the Retirement Date and shall end on the day immediately preceding the second (2^nd) anniversary of the Retirement Date, unless terminated earlier in accordance with Section 2.2 or Section 2.3 (the “Consulting Term”).

2.2 The Company may terminate this Consulting Agreement immediately if (a) Consultant breaches any obligation under this Consulting Agreement, that Transition and Retirement Agreement by and between the Company and Consultant dated June 23, 2014 (the “Retirement Agreement”), that Restrictive Covenant Agreement by and between the Company and the Consultant dated June 23, 2014, the Release described in the Retirement Agreement or any other agreement with the Company or (b) Consultant becomes totally and permanently disabled. The term “totally and permanently disabled” shall mean the substantial physical or mental inability of Consultant to fulfill his duties under this Consulting Agreement as certified to in writing by two (2) competent physicians practicing in Columbus, Georgia, one of whom shall be selected by the Company’s Board of Directors and the other of whom shall be selected by Consultant or his duly appointed guardian or legal representative.

2.3 This Consulting Agreement shall terminate immediately upon Consultant’s death.

SECTION III.

COMPENSATION

3.1 In consideration of the consulting services to be rendered by Consultant hereunder, and in consideration of the covenants and agreements of Consultant herein contained, the Company hereby agrees to pay to Consultant a consulting fee at the rate of Five Hundred Thousand Dollars ($500,000.00) per year during the Consulting Term (the “Consulting Fee”). The Consulting Fee shall be paid in monthly installments on the last day of each month during the Consulting Term.

3.2 In addition, the Company also shall pay reasonable out of pocket business expenses, including travel and entertainment, of Consultant incurred in connection with the consulting services performed under this Consulting Agreement in accordance with the Company’s expense reimbursement policies; provided, such out of pocket expenses are documented and submitted to the Company in accordance with such policy.

3.3 Consultant acknowledges that he is an independent contractor for all purposes. Consultant agrees to treat all payments made to him hereunder as payments received by an independent contractor for all tax purposes and to pay any and all taxes payable in connection

 

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with his engagement hereunder, including, without limitation, all applicable income and self-employment taxes. Consultant shall not be entitled to any contributions or benefits that are provided to employees of the Company other than those benefits to which Consultant is entitled as a result of his previous employment with the Company notwithstanding any determination by any regulatory agency or court that Consultant is a common law employee of the Company, or any provision in any employee benefit plan to the contrary.

SECTION IV.

MISCELLANEOUS

4.1 Governing Law. This Consulting Agreement shall be governed by and interpreted under the laws of the State of Georgia without regard to its conflict or choice of law provisions.

4.2 Notices. All notices or other communications required or permitted hereunder or necessary and convenient in connection herewith shall be in writing and delivered in person or by express delivery service or postage prepaid first class mail, return receipt requested, to the following addresses:

If to Consultant:

Philip W. Tomlinson

7498 Rolling Bend Road

Columbus, GA. 31904

If to the Company:

Total System Services, Inc.

Attn: General Counsel

One TSYS Way

Post Office Box 1755

Columbus, Georgia 31902

or to such other addresses as Consultant or the Company may designate by notice to the other parties hereto in the manner set forth in this Section 4.2.

4.3 Entire Agreement. This Consulting Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and may not be changed or amended except upon written amendment executed by the parties hereto.

4.4 Assignment. All of the terms and provisions of this Consulting Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of Consultant hereunder shall not be assignable in whole or in part by Consultant.

 

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4.5 Counterparts. This Consulting Agreement may be executed in two or more counterparts (including electronically, such as by telefax or email), each of which, when executed, shall be deemed an original instrument.

IN WITNESS WHEREOF, the Company has caused this Consulting Agreement to be executed on its behalf and Consultant has hereunto set his hand and seal, as of the day and year first above written.

 

 

 

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