EXHIBIT 10.2



 











EXHIBIT 10.2




SEPARATION AGREEMENT AND GENERAL RELEASE



This Separation Agreement and General Release (“Agreement”) is entered into between The BISYS
Group, Inc., (“BISYS”), BISYS Management Company (“Employer”) and James L. Fox (“Employee”).



WHEREAS, Employee and Employer have agreed that Employee’s employment with Employer will terminate
as contemplated by the provisions described below; and



WHEREAS, in consideration of the amounts payable to Employee hereunder Employee has agreed to
release BISYS and Employer from any claims Employee may have in connection with Employee’s
employment as more fully set forth herein;



NOW THEREFORE, in consideration of the mutual covenants and obligations set forth herein and for
other good and valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:





	1.	 	Termination. Employee’s last date of employment shall be the earlier of (a) the date
on which Employee commences alternate employment; and (b) October 2, 2005 (the “Employment
Termination Date”). At the option of the Company, the Employment Termination Date may be
extended at any time prior to a date not later than December 31, 2005. During the period
through the Employment Termination Date, Employee shall be working at the direction of the
Chief Executive Officer of the BISYS Group, Inc., primarily in support Alternative Investment
Services and Corporate Finance transition activities. In addition to the foregoing, Employee
shall be available to assist BISYS in matters involving the current SEC investigations related
to certain accounting matters and marketing and distribution support arrangements, as well as
any other regulatory or other matters which concern events in which Employee may have been
involved.
	 
	2.	 	Compensation and Benefits
	 
	2.1	 	Salary, Separation and Incentive Compensation Payments. In consideration of this
Agreement, following the Effective Date (as defined in Section 6.6 hereof), BISYS shall make
the following cash payments, to the extent not already made, to Employee:






	 	a.	 	One-time, lump sum, separation payment of $699,100 (annual base salary of
$405,100 plus an amount equal to FY 2005 actual incentive compensation of $294,000)
payable within three (3) weeks of the Employment Termination Date; provided that this
payment shall not be made if Employee’s employment terminates pursuant to Section 1(a)
above.
	 
	 	b.	 	Fiscal Year 2005 incentive plan compensation of $294,000 to be payable in cash
in full (no deferral) when FY 2005 incentive plan payments are made (i.e., first
payroll period in September 2005).
	 
	 	c.	 	One-time, lump sum, payment of $198,750 upon successful transition of
CFO/President of Alternative Services responsibilities, payable within three (3) weeks
of the Employment Termination Date.






	2.2	 	Medical, Dental, Vision and Flexible Spending Plan Benefits. Employee shall be
eligible to continue to participate in the medical, dental, vision, life insurance and
disability insurance and flexible spending benefits programs offered to employees of BISYS
through the Employment Termination Date. Employee shall be responsible for the Employee
portion of the premium costs associated with participation in such benefits programs, which
will be deducted from the annual base salary payments through the Employment Termination Date.






 









 









	2.3	 	Stock Options. All stock options previously granted to Employee and outstanding
(“Outstanding Stock Options”) shall continue to vest in accordance with their terms through
the Employment Termination Date.
	 
	2.4	 	Restricted Stock. As of October 1, 2005, Employee shall vest in 10,000 shares of the
20,000 share restricted grant granted to Employee in October 2003. As of August 16, 2005,
Employee shall vest in 5,500 shares of the 22,000 restricted grant granted to Employee in
August 2004. The remaining unvested 10,000 restricted shares of the October 2003 grant and
the remaining 16,500 restricted shares from the August 2004 grant shall be cancelled,
effective as of the Employee’s Termination Date.
	 
	2.5	 	D&O Insurance Coverage; Indemnification. BISYS agrees to continue and maintain
Directors’ and Officers’ liability insurance covering Employee to the extent it maintains such
coverage for executive officers of BISYS. Furthermore, Employee is entitled to the
indemnification provisions provided to officers and employees pursuant to the By-Laws of BISYS
as in effect from time to time for any actions taken while an employee of BISYS in accordance
with such provisions. For so long as Employee continues to fully cooperate with BISYS and any
regulatory authorities conducting inquiries or investigations of BISYS and unless BISYS shall
determine that Employee is not entitled to indemnification under the terms of such By-laws,
BISYS hereby agrees to advance the fees of counsel to Employee, subject to BISYS’ right to
recover any fees so advanced in accordance with the provisions of such By-Laws.
	 
	2.6	 	Employee Stock Purchase Plan and 401(k) Plan. Through the Employment Termination
Date, Employee shall be eligible to participate in the BISYS 2005 Employee Stock Purchase
Plans and the BISYS 401(k) Plan in accordance with the terms of such plans.
	 
	2.7	 	Satisfaction of Compensation. Tender of payments and/or other consideration provided
to Employee by BISYS or the Employer as described and set forth above, shall constitute
satisfaction by BISYS and the Employer of any and all claims by Employee for wages, vacation
pay, commissions, holiday pay, pay for personal days, severance pay, bonus or any other pay
for which Employee is or may be entitled and shall be deemed full and complete satisfaction of
BISYS’ obligations under that certain Key Executive Separation Agreement entered into by BISYS
and Employee.
	 
	2.8	 	Taxes. The compensation and benefits provided hereunder are subject to all
applicable federal, state and local taxes.
	 
	2.9	 	No Mitigation; No Offset. Employee is under no obligation to seek other employment
and there shall be no offset against amounts due to him on account of remuneration received
from subsequent employment.
	 
	3.	 	Post Employment Matters/Return of BISYS Property
	 
	3.1	 	All requests to Employer or BISYS for references regarding Employee’s employment with
Employer shall be coordinated with Mr. Rybarczyk. Employee will be notified and copied on all
related correspondence.
	 
	3.2	 	Not later than December 31, 2005, Employee shall return all BISYS property to BISYS,
including (i) all files and records, and rolodex or other medium containing BISYS information
(particularly customer data) and shall not retain any copies, including electronic or disk
copies of any such information, and (ii) any personal and/or laptop computer, monitor and
related software.
	 
	4.	 	General Release
	 
	4.1	 	In consideration of, and subject to, the payments and other consideration to be provided
pursuant to Paragraph 2 above and the other provisions of this Agreement and Release, as of
the Effective Date, Employee on Employee’s own behalf and on behalf of Employee’s heirs,
executors, administrators and assigns, hereby releases and forever discharges Employer, BISYS
and their respective predecessors, successors, subsidiaries and affiliates and each of their
officers, directors, employees, agents, shareholders, and assigns, whether previously or
hereinafter affiliated in any manner (collectively referred to as the “Released Parties”),
from and against any and all claims, demands, causes of action, obligations, damages,
attorneys’ fees, costs and





 









 






	 	 	liabilities of any nature whatsoever, whether or not now known, suspected or claimed, which
Employee ever had or now has against the Released Parties, or any of them, as of the
Effective Date, by reason of any act or omission concerning any matter, cause, or thing,
whether contractual, or under common law or statute, including but not limited to all claims
for breach of or interference with any alleged express or implied contract, wrongful
discharge, intentional or negligent infliction of emotional distress, breach of a covenant
of good faith and fair dealing, violation of public policy, defamation, interference with
contractual relations, invasion of privacy, misrepresentation, fraud, deceit, negligence,
and discrimination pursuant to Title VII of the Civil Rights Act of 1964 as amended, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967 as amended, the
Americans with Disabilities Act, and any and all claims under the Fair Labor Standards Act,
the Family and Medical Leave Act, the Employee Retirement Income Security Act, and any other
statute, federal or state, in each and every case relating to Employee’s employment or the
termination of employment, other than the obligations of BISYS and Employer set forth
herein; other obligations that by their terms are to be performed after the date hereof
(including, without limitation, obligations to Employee under stock option, stock awards,
pension or benefit plans which remain in effect in accordance with their terms); obligations
to indemnify Employee respecting acts or omissions in connection with his service as an
officer or employee of BISYS or any right Employee may have to obtain contribution for an
act for which Employee and BISYS are jointly responsible.
	 
	4.2	 	Employee understands and agrees that if Employee does not agree to the waiver and release set
forth in Paragraph 4.1 above, Employee would not be entitled to the benefits provided herein
following the Employment Termination Date other than COBRA continuation benefits.
	 
	4.3	 	THIS RELEASE IS ALSO INTENDED TO WAIVE ALL RIGHTS AND CLAIMS ARISING UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, 29 U.S.A. SECTION 621, ET. SEQ.
EMPLOYEE ACKNOWLEDGES THAT PURSUANT TO THIS PROVISION EMPLOYEE HAS BEEN ADVISED TO CONSULT
WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT. EMPLOYEE IS HEREBY ADVISED THAT UNDER THE
ACT EMPLOYEE HAS UP TO TWENTY-ONE (21) DAYS FROM RECEIPT OF THIS AGREEMENT TO CONSIDER THE
TERMS AND CONDITIONS HEREIN.
	 
	4.4	 	To the extent that the release set forth in Paragraph 4.1 runs in favor of persons or
entities not signatory hereto, this Agreement is hereby declared to be made for each of their
express benefits and uses. Employee declares, covenants and agrees that Employee has not
assigned heretofore, and will not hereafter seek to assign any claim, demand or cause of
action released herein.
	 
	4.5	 	Employee acknowledges that neither this Agreement nor the consideration referenced above is
to be construed as an admission on the part of the Released Parties, or any of them, of any
liability whatsoever.
	 
	4.6	 	Employee represents, warrants and agrees that Employee has not filed any claims, appeals,
complaints, charges or lawsuits (“Claims”) against the Released Parties with any governmental
agency or court, and that Employee will not file or permit to be filed or accept any benefit
from any Claim filed with any governmental agency or court by Employee or on Employee’s behalf
at any time hereafter; provided, however that this Agreement shall not limit any party hereto
from commencing and prosecuting any action or proceeding for the purpose of enforcing its
rights under this Agreement. Employee agrees not to provide any information, evidence or
testimony or otherwise participate in any Claim or proceeding of any kind or nature against
any of the Released Parties unless compelled by law.
	 
	4.7	 	Any disputes arising under or in connection with this Agreement shall be resolved by third
party mediation of the dispute and, failing that, by binding arbitration to be held in
Manhattan in accordance with the rules and procedures of the American Arbitration Association.
Each party shall bear his or its own costs of the mediation, arbitration or litigation.
Pending the resolution of any disputes, BISYS shall continue payment of all amounts due to
Employee under this Agreement and all benefits to which Employee is entitled at the time the
dispute arises.






3









 









	5.	 	Confidentiality and Non-Disparagement
	 
	 	 	As a specific condition to the performance of this Agreement by BISYS and Employer, until
such time as this Agreement is publicly disclosed:
	 
	5.1	 	Employee agrees not to disclose, for any purpose at any time, except as may be required by a
subpoena or an order of a court of competent jurisdiction, or in connection with enforcement
of Employee’s rights hereunder, any of the following facts to any person except Employee’s
immediate family, personal legal and financial advisors:






	 		(a)	 	The fact that this Agreement exists; except that Employee may disclose to a
prospective employer that a satisfactory arrangement has been worked out between
Employee and BISYS.
	 
	 	 	(b)	 	The fact that Employee will receive or has received any payment or
consideration of any kind from BISYS or Employer related in any way to Employee’s
separation of employment;
	 
	 	 	(c)	 	Any fact relating in any way to, or arising in any way out of, Employee’s
employment with BISYS or Employer; and
	 
	 	 	(d)	 	Any and all information of Employer and its subsidiaries and affiliates that
may constitute and be protected as confidential and proprietary information.






	5.2	 	Employee agrees not to make any statement to any third party or any other entity which
Employee could reasonably foresee would cause harm to the personal or professional reputation
of BISYS, its affiliates and subsidiaries, particularly Employer, and each of their respective
officers, directors and employees. Likewise, BISYS and Employer agree that they (including
any of their respective officers, directors, or employees) will not make any statement to any
third party or any other entity that could reasonably be foreseen would cause harm to the
personal or professional reputation of Employee.
	 
	6.	 	General
	 
	6.1	 	Employee acknowledges and agrees that any notice provisions in connection with any prior
agreements or letters of employment have been satisfied and superseded by this Agreement and
that this Agreement shall be governed by and construed in accordance with the substantive and
procedural laws of the State of New York.
	 
	6.2	 	This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, legal representatives, successors and permitted assigns, but shall not be
assignable by Employee.
	 
	6.3	 	If any provision of this Agreement shall be determined by a court of competent jurisdiction
to be unenforceable for any reason, such provision shall be deemed to be severable and this
Agreement shall otherwise continue in full force and effect.
	 
	6.4	 	The parties acknowledge that they have read this Agreement, that they are relying solely upon
the terms and conditions set forth herein, and are not relying upon any other representations,
warranties or inducements whatsoever as an inducement to enter into this Agreement, other than
those references herein and acknowledge that no representations, warranties or covenants have
been made which are not referenced in this Agreement.
	 
	6.5	 	The failure to enforce at any time any of the provisions of this Agreement or the failure to
require at any time performance of any of the provisions of this Agreement shall in no way be
construed to be a waiver of such provisions or to affect either the validity of this Agreement
or any part hereof, or the right thereafter to enforce each and every such provision in
accordance with the terms of this Agreement.
	 
	6.6	 	FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING EMPLOYEE’S EXECUTION OF THIS AGREEMENT,
EMPLOYEE MAY REVOKE THIS AGREEMENT, AND RESCIND





 









 






	 	 	EMPLOYEE’S ASSENT THERETO. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL
SEVEN (7) DAYS HAVE PASSED FOLLOWING EMPLOYEE’S EXECUTION OF THIS AGREEMENT. THE EFFECTIVE
DATE OF THIS AGREEMENT SHALL BE THE EIGHTH CALENDAR DAY AFTER EMPLOYEE EXECUTES THIS
AGREEMENT, IF EMPLOYEE HAS NOT EARLIER REVOKED IT (THE “EFFECTIVE DATE”). EMPLOYEE MAY
REVOKE THIS AGREEMENT ONLY BY GIVING WRITTEN NOTICE OF REVOCATION TO EMPLOYER WITHIN THE
AFOREMENTIONED SEVEN (7) DAY PERIOD.
	 
	6.7	 	Neither BISYS nor the Employer will oppose Employee’s application for unemployment insurance
benefits.
	 
	6.8	 	This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same document.
	 
	6.9	 	Unless otherwise set forth herein, all notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be hand delivered, sent by
nationally recognized overnight courier, or mailed by registered or certified mail, return
receipt requested, addressed as follows, or to such other address as may be provided by the
respective parties to this Agreement.





	 	 	 	 	 
	 

	 	If to BISYS:
	 	THE BISYS GROUP, INC.
	 

	 	 	 	90 Park Avenue, 10th floor
	 

	 	 	 	New York, New York 10016
	 

	 	 	 	Attn: Executive Vice President, Human Resources
	 
	 	 	 	 
	 

	 	If to Employee:
	 	At the last home address on file with the Employer







	6.10	 	This Agreement constitutes the entire understanding of the parties with respect to the
subject matter hereof and replaces and supersedes any and all prior agreements, oral and
written, between the parties hereto with respect to the subject matter hereof, and may not be
changed, modified, altered, or amended, nor any of its provisions waived, except in a writing
signed by the parties hereto. All prior non-compete, confidentiality, and/or restrictive
covenant agreements, if any, between Employee and Employer and/or BISYS shall remain in full
force and effect in accordance with their terms.




IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date set forth below.



The BISYS GROUP, INC.

(On behalf of itself and all of its subsidiaries and

affiliates, including BISYS Management Company)




	 	 	 	 	 	 	 
	By:

	 	/s/ Mark J. Rybarczyk
	 	Date:
	 	August 12, 2005
	 

	 	 
	 	 	 	 
	 

	 	Mark J. Rybarczyk	 	 	 	 
	 

	 	Executive Vice President, Human Resources	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	/s/ James L. Fox
	 	Date:
	 	Aug. 12, 2005
	 

	 	 
	 	 	 	 
	 

	 	James L Fox	 	 	 	 






5