EX-10.1




FORM OF CHANGE IN CONTROL AGREEMENT




This CHANGE IN CONTROL AGREEMENT (“Agreement”) is made and entered into the 30th day of
September, 2004 by and between THE REYNOLDS AND REYNOLDS COMPANY, a corporation existing under the
laws of the State of Ohio (hereinafter referred to as the “Employer”), and    (hereinafter
referred to as “Employee”).



WITNESSETH:





WHEREAS, Employee is currently an employee of the Employer; and



WHEREAS, the Employer considers Employee a key member of the management team of the Employer
and recognizes that the occurrence of a change in the control of the Employer would be of
significant concern to Employee;



WHEREAS, the parties hereto desire to set forth their mutual agreement regarding the terms of
Employee’s employment under certain specified circumstances in order to foster and encourage
continued attention and dedication to Employee’s assigned duties in the event of such
circumstances;



NOW, THEREFORE, in consideration of the foregoing premises, Employee’s continued employment
for any period after execution of this Agreement, and the mutual promises set forth herein, the
parties hereby agree as follows:



1. DEFINITIONS.




For purposes of this Agreement:




	 	(a)	 	“Base Compensation” shall mean the then-current annual base salary (exclusive
of Bonuses) of Employee, as the same may be fixed from time to time by the Board of
Directors or its Compensation Committee or, if applicable, by the appropriate
executive officer of Employer.






	 	(b)	 	“Bonuses” shall mean bonus payments earned by Employee under Employer’s
incentive compensation plans and under any future bonus or incentive compensation
plans of Employer for its officers in which Employee participates.






(c) “Change in Control” shall mean the occurrence of any of the following events:




	 	(i)	 	Any “person,” as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(other than Richard H. Grant, Jr., his children or his grandchildren,
Employer, any trustee or other fiduciary holding securities under an employee
benefit plan of Employer or any company owned, directly or indirectly, by the
shareholders of Employer in substantially the same proportions as their
ownership of stock of Employer), who is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Employer representing twenty percent (20%) or more of the
combined voting power of Employer’s then outstanding securities;






	 	(ii)	 	during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, and any new director
(other than a director designated by a person who has entered into an
agreement with Employer to effect a transaction described in clause (i), (iii)
or (iv) of this Section) whose election by Employer’s shareholders was
approved by a vote of at least two-thirds (2/3) of the directors at the
beginning of the period or whose election or nomination for election was
previously so approved cease for any reason to constitute at least a majority
thereof;






	 	(iii)	 	Employer is merged or consolidated with any other company
and as a result of such merger or consolidation less than 50% of the
outstanding voting securities of the surviving or resulting company are owned
in the aggregate by former shareholders of Employer, as the same shall have
existed immediately prior to such merger or consolidation; or






	 	(iv)	 	Employer is liquidated or dissolved, or there occurs a sale
or disposition of all or substantially all of Employer’s assets.






	 	(d)	 	“Disability” shall mean the inability of Employee, because of any mental or
physical illness or incapacity, to perform substantially the duties of his employment
with the Employer as determined under the Employer’s long-term disability program.






	 	(e)	 	“Discharge For Cause” shall be construed to have occurred whenever occasioned
by (i) reason of felonious acts on the part of Employee, (ii) actions by Employee
involving serious moral turpitude, (iii) Employee’s misconduct in such manner as to
bring substantial and material discredit upon Employer, (iv) Employee’s breach of the
non-competition provisions of the Officer Agreement executed by Employee as of October
8, 2002 (the “Officer Agreement”) which agreement is incorporated herein by reference,
or (v) Employee’s breach of the confidentiality provisions of the Officer Agreement
which is reasonably determined by the Board of Directors to cause material harm to
Employer, and following the giving of thirty (30) days’ written notice to Employee
specifying the respect in which Employer claims Employee has violated this provision
and the failure, inability or unwillingness of Employee to remedy the situation to the
satisfaction of Employer within said thirty-day period. In establishing whether a
Discharge For Cause shall have occurred, the standard for judgment shall be the level
of conduct by Employee and by other comparably situated officers prior to the alleged
improper activity of Employee for which the Discharge For Cause has been made.






	 	(f)	 	“Supplemental Plan” shall mean Employer’s existing Supplemental Retirement
Plan as the same may be amended or replaced from time to time.






	 	(g)	 	“Term” shall mean the term of this Agreement as described in Section 2
hereof.





2. TERM OF AGREEMENT




	 	(a)	 	[Subject to the provisions of Section 2(b),] [delete clause except for
Ventura, Medford and two other officers, all of whom have prior agreements] the term
of this Agreement shall commence on October 1, 2004 and shall continue until September
30, 2009 (the “Term”).






	 	(b)	 	Employee and Employer previously entered into that Change in Control
Agreement dated    ,    (“Prior Agreement”). The Prior Agreement expires on
   (the “Expiration Date”). Employee shall be entitled to the rights and
benefits provided by this Agreement commencing the day immediately following the
Expiration Date and continuing through the Term of this Agreement, so that at all
times the Employee shall be entitled to rights and benefits of either the Prior
Agreement or this Agreement, but at no time shall Employee be entitled to the rights
and benefits provided under both the Prior Agreement and this Agreement. [Delete
paragraph for all except Ventura, Medford and two other officers, all of whom have
prior agreements]





3. BENEFITS TO EMPLOYEE.




	 	(a)	 	Upon the occurrence of a Change in Control, provided that the Change in
Control occurs during the Term of this Agreement: (i) Employer shall not reduce
Employee’s Base Compensation below the amount of such Base Compensation in effect
immediately preceding the Change in Control without Employee’s written consent; (ii)
Employer shall continue to provide Employee with fringe benefits (including bonuses,
vacation, health and disability insurance, etc.) substantially equivalent to those of
other similarly situated officers of the Employer; (iii) Employee shall not be
required by the Employer to perform duties or services which differ significantly from
those performed by him prior to the Change in Control, or which are not ordinarily and
generally performed by a similarly situated executive of a corporation; (iv) the
nature of the duties or services which the Employer requires him to perform shall not
require the Employee to be absent overnight from his place of residence (as determined
prior to the Change in Control) because of travel involving the business affairs of
the Employer for more than ninety (90) days during any period of twelve (12)
consecutive months.






	 	(b)	 	If, during the Term of this Agreement, a Change in Control shall occur and
thereafter, either (i) Employer terminates Employee’s employment for any reason other
than a Discharge For Cause within the twenty-four (24) month period following the date
of the Change in Control, or (ii) Employee terminates his employment with Employer for
any of the reasons specified in Section 3(a) within the twenty-four (24) month period
following the date of the Change in Control, and in either case, provided that
Employee delivers to Employer and does not rescind a waiver of claims on a form
provided by Employer that releases Employer, its employees, officers, directors and
related entities from any and all claims arising out of or related to Employee’s
employment or termination of employment, Employee shall be entitled to receive from
Employer the following benefits:






	 	(i)	 	A lump sum severance payment (the “Severance Payment”), in
cash, equal to two (2.00) times [2.99 times for Medford] the sum of the (i)
higher of Employee’s annual Base Compensation (a) in effect immediately prior
to the occurrence of the event or circumstance upon which such termination of
employment is based or (b) in effect immediately prior to the Change in
Control, and (ii) the average of Employee’s Bonuses (excluding any
compensation attributable to Employer’s grant of any stock options, restricted
stock, stock appreciation rights or other stock incentives and any
compensation determined by the Board of Directors to be a long-term incentive
arrangement) during the three (3) calendar years immediately preceding the
year in which the date of termination occurs.






	 	(ii)	 	During the period expiring on the earlier of Employee
securing other employment or twenty-four (24) months from date of such
termination of employment, continued coverage under the Employer’s sponsored
medical benefits program in existence on such date of termination, or, if such
continued coverage is barred, or otherwise at the option of Employer, Employer
shall provide substantially equivalent medical benefit coverage through the
purchase of insurance or otherwise.






	 	(iii)	 	For purposes of determining Employee’s benefits under the
Supplemental Plan, Employee shall receive credit toward his “Years of Service”
under the Supplemental Plan for the two (2) year period following his
termination of employment. In addition, with respect to the two (2) year
period following such termination of employment, Employee’s Base Compensation
shall be deemed to be increased by the annual economic range adjustment for
Employer’s salaried employees announced in October of each year (or, if there
is no such announced economic range adjustment in a given year, by an assumed
five percent (5%) increase for that year) in order to calculate his highest
earnings during five (5) consecutive years out of the last ten (10) years
prior to retirement under the Supplemental Plan.






	 	(iv)	 	Employee shall be reimbursed for up to $20,000 for
outplacement fees if he chooses to seek other employment following his
termination of employment with Employer.






	 	(c)	 	Notwithstanding anything to the contrary in this Section 3(c), Employee shall
not be entitled to any payments pursuant to Section 3(b) if:






	 	(i)	 	Employee dies prior to making a claim for payment pursuant to
Section 3(b);






	 	(ii)	 	Employer terminates Employee’s employment because of a
Discharge for Cause or as a result of Employee’s Disability; or






	 	(iii)	 	Employee voluntarily terminates his employment with the
Employer for reasons other than as set forth in Section 3(a).






	 	(d)	 	Employee shall not be required to mitigate damages with respect to the amount
of any payments provided for in Section 3(b) by seeking other employment or otherwise.
Employee’s sole remedy under this Agreement for a breach by the Employer of Section
3(a) shall be to terminate employment and receive any payments to which he is entitled
under Section 3(b).






	 	(e)	 	If Employee disagrees with Employer that his termination of employment was
due to a Discharge For Cause, the dispute shall, within thirty (30) days after the
termination of employment, be submitted to arbitration by three (3) arbitrators, one
of whom shall be selected by Employer, another of whom shall be selected by Employee,
and the third of whom shall be selected by the two arbitrators so appointed. The
arbitration shall take place in Dayton, Ohio in accordance with the then-current rules
of the American Arbitration Association. The decision of the arbitrators on the
dispute shall be final and conclusive upon Employer, on the one hand, and upon
Employee and Employee’s spouse or widow, personal representatives, designated
beneficiaries and heirs, on the other hand, and shall be enforceable in any court
having competent jurisdiction thereof. A termination which is eventually determined
under arbitration to have been a Discharge For Cause, or no arbitration having been
requested and the termination being one which Employer has determined was a Discharge
For Cause, shall extinguish any and all liability of Employer under this Agreement
from and after the date of the termination of employment.






	 	(f)	 	In the event that, following the creation of Employee’s right to receive the
payments pursuant to Section 3(b) of this Agreement, Employee incurs any costs or
expenses, including attorneys’ fees, in the enforcement of rights under this Agreement
or under any plan for the benefit of employees of the Employer, including without
limitation, Employer’s stock plans, Supplemental Plan, payroll-based stock ownership
plan, tax deferred savings and protection plan, bonus arrangements, supplemental
pension plan, deferred compensation agreements, incentive compensation plans, and life
insurance and compensation program, then, unless the Employer or the consolidated,
surviving or transferee entity in the event of a consolidation, merger or sale of
assets, is wholly successful in defending against the enforcement of such rights, the
Employer, or such consolidated, surviving or transferee entity, shall promptly pay to
Employee all such costs and expenses.





4. INJUNCTIVE RELIEF.




	 	(a)	 	Employee agrees that, in the event of a breach or threatened breach by
Employee of this Agreement, Employer’s remedies at law would be inadequate, and
Employer shall be entitled to an injunction (without any bond or other security being
required), but nothing here shall be construed to preclude Employer from pursuing any
action or further remedy, at law or in equity, for any breach or threatened breach
including, but not limited to, the recovery of damages.






	 	(b)	 	Employee further agrees that Employee will be responsible for attorneys’ fees
and other legal expenses incurred by Employer or its successors and assigns to enforce
any of the covenants in this Agreement.





5. UNFUNDED AGREEMENT.




The Employer’s obligations under this Agreement are unfunded, but the Employer reserves the
right to provide for its liability under this Agreement in any manner it deems advisable,
including the purchasing of such assets as it may deem necessary or proper. Any asset so
purchased by the Employer shall be the sole property of the Employer and shall not be
deemed to provide funding of the Employer’s obligations under this Agreement. Any other
provision in this Agreement to the contrary notwithstanding, Employee shall be only an
unsecured general creditor of the Employer with respect to all payments to be made under
the terms of this Agreement and shall have no claim, equity, interest, or right in or to
any specific assets or funds of the Employer as security for said payments.



6. NON-ASSIGNABLE RIGHTS.




Employee shall not have the right to anticipate or commute with any third party, or to
sell, assign, transfer, or otherwise alienate or convey the right to receive any payments
hereunder, whether by his voluntary or involuntary act, or by operation of law and, in
particular, that any payments due hereunder shall not be subject to attachment or
garnishment or any other legal proceedings by any creditor, or be in any way responsible
for the debts or liabilities of Employee. Should any attempt be made to reach any payments
hereunder by other than Employee, Employer shall make each payment as it becomes due to
such person or persons, for the sole benefit of Employee as Employer may deem expedient.



7. FACILITY OF PAYMENT; LIMITATION.




	 	(a)	 	In the event of a Disability of Employee after Employee is entitled to
payments hereunder, such payments as may thereafter be due shall be paid to such
person or persons for the benefit of Employee as Employer may deem proper after
reasonable investigation. In the event of Employee’s death after he is entitled to
payments hereunder, the Employer shall pay such amounts as thereafter are due to such
beneficiary or beneficiaries as Employee shall have designated in writing on Exhibit A
attached hereto and made a part hereof, or failing such writing, to his estate. No
liability shall accrue to the Employer for any alleged payment to an improper person
or representative if so made after such reasonable investigation and the Employer
shall have no responsibility to see to the proper application of such payments.






	 	(b)	 	Notwithstanding any other provisions of this Agreement, in the event that any
payment or benefit received or to be received by Employee in connection with a Change
in Control or the termination of Employee’s employment (whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement with Employer, any
person whose actions result in a Change in Control or any person affiliated with
Employer or such person) (all such payments and benefits, including the Severance
Payment, being hereinafter called “Total Payments”) would be subject (in whole or
part), to an excise tax pursuant to Sections 280G and 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”) (such tax hereinafter referred to as the “Excise
Tax”), then the Severance Payment shall be reduced to the extent necessary so that no
portion of the Total Payments is subject to Excise Tax (after taking into account any
reduction in the Total Payments provided by reason of Section 280G of the Code in such
other plan, arrangement or agreement) if (A) the net amount of such Total Payments, as
so reduced, (and after deduction of the net amount of federal, state and local income
tax on such Total Payments), is greater than (B) the excess of (i) the net amount of
such Total Payments, without reduction (but after deduction of the net amount of
federal, state and local income tax on such Total Payments), over (ii) the amount of
Excise Tax to which Employee would be subject in respect of such Total Payments. For
purposes of determining whether and the extent to which the Total Payments will be
subject to the Excise Tax, (i) no portion of the Total Payments the receipt or
enjoyment of which Employee shall have effectively waived in writing prior to the date
of this termination of employment shall be taken into account, (ii) no portion of the
Total Payments shall be taken into account which in the opinion of tax counsel
selected by Employer does not constitute a “parachute payment” within the meaning of
Section 280G(b)(2) of the Code, (including by reason of Section 280G(b)(4)(A) of the
Code) and, in calculating the Excise Tax, no portion of such Total Payment shall be
taken into account which constitutes reasonable compensation for services actually
rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the
base amount as defined in Section 280G(b)(3) of the Code allowable to such reasonable
compensation, and (iii) the value of any non-cash benefit or any deferred payment or
benefit included in the Total Payments shall be determined by Employer in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code. Prior to the fifth day
following the date of Employee’s termination of employment, Employer shall provide
Employee with its calculation of the amounts referred to in this paragraph and such
supporting materials as are reasonably necessary for Employee to evaluate Employer’s
calculations. If Employee objects to Employer’s calculations, he shall notify Employer
of his objections within five (5) days after receipt of the calculation from Employer
and Employer shall pay to Employee such portion of the Total Payments (up to one
hundred percent (100%) thereof) as Employee determines is necessary to result in
Employee receiving the greater of clauses (A) and (B) of this paragraph.





8. RESPONSIBILITY FOR LEGAL EFFECT.




Neither party hereto makes any representations or warranties, express or implied, or
assumes any responsibility concerning the legal, tax, or other implications or effects of
this Agreement. The Employer shall take all actions required by law with respect to any
payments due hereunder including but not limited to, withholding of tax from such payments.



9. INDEPENDENCE OF AGREEMENT; EMPLOYMENT TERMINATION.




This Agreement shall be independent of any other contract or agreement that may exist
between the parties hereto from time to time. This Agreement shall not restrict the
Employer’s rights to terminate Employee’s employment with the Employer nor Employee’s
rights to terminate employment with the Employer; provided, however, that the Employer
shall not terminate Employee’s employment prior to a Change in Control solely to avoid its
obligations under this Agreement. No Change in Control shall occur without assumption of
the Agreement by the purchaser or payment by purchaser or Employer of the sums set forth in
Section 3(b).



10. SECTION HEADINGS.




The Section headings used in this Agreement are for convenience of reference only and shall
not be considered in construing this Agreement.



11. NOTICES.



Any notices required or permitted to be given under this Agreement shall be sufficient if in
writing and if personally delivered or sent by certified or registered mail to his residence as
last shown on the employment records of the Employer in the case of Employee, or to the corporate
headquarters to the attention of the President in the case of the Employer.



12. NON-WAIVER.



The waiver by the Employer or Employee of a breach of any provision of this Agreement by
Employee or the Employer shall not operate or be construed as a waiver of any subsequent breach by
Employee or the Employer of the same or any other provision hereof.



13. ENTIRE AGREEMENT; AMENDMENT



This Agreement and the documents incorporated by reference herein represent the entire
understanding of the parties with respect to the subject matter hereof and supersedes all previous
understandings, written or oral. Any amendment to this Agreement shall be executed in writing with
the same formality as this Agreement.



14. BINDING EFFECT.



This Agreement shall be binding upon Employee and the Employee’s heirs, executors,
administrators, successors and assigns and upon the Employer and its successors and assigns.



15. GOVERNING LAW.



This Agreement shall be governed by and construed in accordance with the laws of the State of
Ohio without regard to that state’s conflict of laws principles.



16. SEVERABILITY.



Each provision of the Agreement is severable. Should any court or other tribunal of competent
jurisdiction declare any provision(s) of the Agreement invalid or unenforceable by reason of any
rule of law or public policy, all other provisions hereof shall remain in full force and effect.
Employee hereby authorizes any court or other tribunal of competent jurisdiction to modify any
provision(s) held to be invalid or unenforceable to the extent permissible and to then enforce the
provision(s) as modified.



IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



1




EMPLOYER:




THE REYNOLDS AND REYNOLDS COMPANY




By:   




Its:   




EMPLOYEE:




   



2



EXHIBIT A




BENEFICIARY DESIGNATION




TO: The Reynolds and Reynolds Company



Pursuant to the Agreement dated    , 2004, the undersigned hereby designates the
following beneficiary (beneficiaries) to receive any benefits which may be payable under said
Agreement subsequent to the undersigned’s death:



(1)    



   



(2) If the beneficiary (beneficiaries) named in (1) above is not living or is no longer in
existence, as the case may be, then to:



   



   



This Beneficiary Designation revokes all prior designations made by the undersigned and is subject
to all the terms of the Agreement.



Dated:    , 2004




   




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