EXHIBIT 10.53
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of October 24,
2006 (the "Effective Date"), by and between FIDELITY NATIONAL INFORMATION
SERVICES, INC., a Georgia corporation (the "Company"), and XXXXXXX X. XXXXX, XX
(the "Employee"). In consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. Employment and Duties. Subject to the terms and conditions of this
Agreement, the Company employs the Employee to serve in an executive capacity as
Executive Chairman. Employee accepts such employment and agrees to undertake and
discharge the duties, functions and responsibilities set forth in Appendix A
attached hereto. In addition to the duties and responsibilities specifically
assigned to the Employee pursuant to Appendix A, the Employee will perform such
other duties and responsibilities as are from time to time assigned to the
Employee by the Board of Directors of the Company (the "Board") in writing,
consistent with the terms and provisions of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of three (3) years ending on the third
anniversary of the Effective Date or, if later, ending on the last day of any
extension made pursuant to the next sentence, subject to prior termination as
set forth in Section 7 (such term, including any extensions pursuant to the next
sentence, the "Employment Term"). The Employment Term shall be extended
automatically for one (1) additional year on the first anniversary of the
Effective Date and for an additional year each anniversary thereafter unless and
until either party gives written notice to the other not to extend the
Employment Term before such extension would be effectuated. Notwithstanding any
termination of the Employment Term or the Employee's employment, the Employee
and the Company agree that Sections 7 through 9 shall remain in effect until all
parties' obligations and benefits are satisfied thereunder.
3. Salary. During the Employment Term, the Company shall pay the Employee
an annual base salary, before deducting all applicable withholdings, of $500,000
per year, payable at the time and in the manner dictated by the Company's
standard payroll policies. Such minimum annual base salary may be periodically
reviewed and increased at the discretion of the Compensation Committee of the
Board (the "Committee") to reflect, among other matters, cost of living
increases and performance results (such annual base salary, including any
increases pursuant to this Section 3, the "Annual Base Salary").
4. Other Compensation and Fringe Benefits. In addition to any executive
bonus, pension, deferred compensation and long-term incentive plans which the
Company or an affiliate of the Company may from time to time make available to
the Employee, the Employee shall be entitled to the following during the
Employment Term:
(a) the standard Company benefits enjoyed by the Company's other top
executives as a group;
(b) payment by the Company of the Employee's initiation and membership
dues in all social and/or recreational clubs as deemed necessary and
appropriate by the Company to maintain various business
relationships on behalf of the Company;
provided, however, that the Company shall not be obligated to pay
for any of the Employee's personal purchases and expenses at such
clubs;
(c) medical and other insurance coverage (for the Employee and any
covered dependents) provided by the Company to its other top
executives as a group;
(d) supplemental disability insurance sufficient to provide two-thirds
of the Employee's pre-disability Annual Base Salary;
(e) an annual incentive bonus opportunity under the Company's annual
incentive plan ("Annual Bonus Plan") for each calendar year included
in the Employment Term, with such opportunity to be earned based
upon attainment of performance objectives established by the
Committee ("Annual Bonus"). The Employee's "bonus factor" or "bonus
target" under the Annual Bonus Plan shall be not less than 250% of
the Employee's Annual Base Salary. The Employee's "bonus factor" may
be periodically reviewed and increased (but not decreased without
the Employee's express written consent) at the discretion of the
Committee. The Annual Bonus shall be paid no later than the March
15th first following the calendar year to which the Annual Bonus
relates. Unless provided otherwise herein or the Board determines
otherwise, no Annual Bonus shall be paid to the Employee unless the
Employee is employed by the Company, or an affiliate thereof, on the
Annual Bonus payment date; and
(f) participation in the Company's equity incentive plans.
5. Vacation. For and during each calendar year within the Employment Term,
the Employee shall be entitled to reasonable paid vacation periods consistent
with his positions with the Company and in accordance with the Company's
standard policies, or as the Board may approve. In addition, the Employee shall
be entitled to such holidays consistent with the Company's standard policies or
as the Board or the Committee may approve.
6. Expense Reimbursement. In addition to the compensation and benefits
provided herein, the Company shall, upon receipt of appropriate documentation,
reimburse the Employee each month for his reasonable travel, lodging,
entertainment, promotion and other ordinary and necessary business expenses to
the extent such reimbursement is permitted under the Company's expense
reimbursement policy.
7. Termination of Employment. The Company or the Employee may terminate
the Employee's employment at any time and for any reason in accordance with
subsection 7(a) below. The Employment Term shall be deemed to have ended on the
last day of the Employee's employment. The Employment Term shall terminate
automatically upon the Employee's death.
(a) Notice of Termination. Any purported termination of the Employee's
employment (other than by reason of death) shall be communicated by
written Notice of Termination (as defined herein) from one party
hereto to the other party hereto in accordance with the notice
provisions contained in Section 25. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice that indicates the
Date of Termination (as that term is defined in Section 7(b)) and,
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with respect to a termination due to Disability (as that term
is defined in Section 7(e)), Cause (as that term is defined in
Section 7(d)) or Good Reason (as that term is defined in Section
7(f)), sets forth in reasonable detail the facts and circumstances
that are alleged to provide a basis for such termination. A Notice
of Termination from the Company shall specify whether the
termination is with or without Cause or due to the Employee's
Disability. A Notice of Termination from the Employee shall specify
whether the termination is with or without Good Reason or due to
Disability.
(b) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean the date specified in the Notice of
Termination (but in no event shall such date be earlier than the
30th day following the date the Notice of Termination is given,
unless expressly agreed to by the parties hereto) or the date of the
Employee's death.
(c) No Waiver. The failure to set forth any fact or circumstance in a
Notice of Termination, which fact or circumstance was not known to
the party giving the Notice of Termination when the notice was
given, shall not constitute a waiver of the right to assert such
fact or circumstance in an attempt to enforce any right under or
provision of this Agreement.
(d) Cause. For purposes of this Agreement, "Cause" means the Employee's
(i) persistent failure to perform duties consistent with a
commercially reasonable standard of care (other than due to a
physical or mental impairment or due to an action or inaction
directed by the Company that would otherwise constitute Good
Reason); (ii) willful neglect of duties (other than due to a
physical or mental impairment or due to an action or inaction
directed by the Company that would otherwise constitute Good
Reason); (iii) conviction of, or pleading nolo contendere to,
criminal or other illegal activities involving dishonesty; (iv)
material breach of this Agreement; or (v) impeding, or failing to
materially cooperate with, an investigation authorized by the Board.
The Employee's termination for Cause shall be effective when and if
a resolution is duly adopted by an affirmative vote of at least 3/4
of the Board (less the Employee), stating that, in the good faith
opinion of the Board, the Employee is guilty of the conduct
described in the Notice of Termination and such conduct constitutes
Cause under this Agreement; provided, however, that the Employee
shall have been given reasonable opportunity (i) to cure any act or
omission that constitutes Cause if capable of cure and (ii),
together with counsel, during the thirty (30) day period following
the receipt by the Employee of the Notice of Termination and prior
to the adoption of the Board's resolution, to be heard by the Board.
(e) Disability. For purposes of this Agreement, the Employee shall be
deemed to have a "Disability" if the Employee is entitled to
long-term disability benefits under the Company's long-term
disability plan or policy, as the case may be, as in effect on the
Date of Termination.
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(f) Good Reason. For purposes of this Agreement, the term "Good Reason"
means the occurrence (without the Employee's express written
consent) during the Employment Term of any of the following acts or
failures to act by the Company:
(i) an adverse change in the Employee's title, the assignment to
the Employee of duties materially inconsistent with the
Employee's position of Executive Chairman, or a substantial
diminution in the Employee's authority (for purposes of
clarification, a change in the number of direct reports shall
not be considered an adverse change);
(ii) the material breach by the Company of any of its other
obligations under this Agreement;
(iii) the Company gives the Employee notice of its intent not to
extend the Employment Term, any time during the one (1) year
period immediately following a Change in Control;
(iv) following a Change in Control, the relocation of the
Employee's primary place of employment to a location more than
50 miles from the Employee's primary place of employment
immediately prior to the Change in Control; or
(v) the failure of the Company to obtain the assumption of this
Agreement as contemplated in Section 21.
Notwithstanding the foregoing, the Board placing the Employee on a paid leave
for up to 60 days, pending the determination of whether there is a basis to
terminate the Employee for Cause, shall not constitute "Good Reason." The
Employee's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder; provided, however, that no such event described above shall
constitute Good Reason unless the Employee has given a Notice of Termination to
the Company specifying the condition or event relied upon for such termination
within ninety (90) days from the Employee's actual knowledge of the occurrence
of such event and, if capable of cure, the Company has failed to cure the
condition or event constituting Good Reason within the thirty (30) day period
following receipt of the Employee's Notice of Termination.
8. Obligations of the Company upon Termination.
(a) Termination by the Company for other than Cause or Disability or
Termination by the Employee for Good Reason or following a Change in
Control. If the Employee's employment is terminated by the Company
for any reason, other than Cause or Disability or by the Employee
(x) for Good Reason or (y) for any reason during the period
immediately following a Change in Control and ending on the six (6)
month anniversary of a Change in Control:
(i) the Company shall pay to the Employee, (A) within five (5)
business days after the Date of Termination, any earned but
unpaid Annual Base Salary and any expense reimbursement
payments owed to the Employee, and (B)
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no later than March 15 of the year in which the Date of
Termination occurs, any earned but unpaid Annual Bonus
payments relating to the prior calendar year (the "Accrued
Obligations");
(ii) the Company shall pay to the Employee, within thirty (30)
business days after the Date of Termination, a prorated Annual
Bonus based on (A) the target Annual Bonus opportunity in the
year in which the Date of Termination occurs or the prior year
if no target Annual Bonus opportunity has yet been determined
and (B) the fraction of the year the Employee was employed;
(iii) the Company shall pay to the Employee, within thirty (30)
business days after the Date of Termination, a lump-sum
payment equal to 300% of the sum of (x) the Employee's Annual
Base Salary in effect immediately prior to the Date of
Termination (disregarding any reduction in Annual Base Salary
to which the Employee did not expressly consent in writing)
and (y) the highest Annual Bonus paid to the Employee by the
Company within the three (3) years preceding his termination
of employment or, if higher, the target Annual Bonus
opportunity in the year in which the Date of Termination
occurs;
(iv) all stock option, restricted stock and other equity-based
incentive awards granted by the Company that were outstanding
but not vested as of the Date of Termination shall become
immediately vested and/or payable, as the case may be; and
(v) for a three (3) year period after the Date of Termination, the
Company will provide or cause to be provided to the Employee
(and any covered dependents), with life and health insurance
benefits (but not disability insurance benefits) substantially
similar to those the Employee and any covered dependents were
receiving immediately prior to the Notice of Termination at
the same level of benefits and at the same dollar cost to the
Employee as is available to the Company's executive officers
generally, provided that the Employee's continued receipt of
such benefits is possible under the general terms and
provisions of the applicable plans and programs, and provided
further, that such benefits would not be taxable to the
Employee or subject to Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code"). In the event that the
Employee's participation in any such plan or program is
prohibited, the Company shall, at its expense, arrange to
provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to
receive under such plans and programs from which his continued
participation is prohibited. If the Company arranges to
provide the Employee and covered dependents with life and
health insurance benefits, those benefits will be reduced to
the extent comparable benefits are received by, or made
available to, the Employee (at no greater cost to the
Employee) by another employer during the three (3) year period
following the Employee's Date of Termination. The Employee
must
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report to the Company any such benefits that he receives
or that are made available. In lieu of the benefits
described in this Section 8(a)(v), the Company, in its
sole discretion, may elect to pay to the Employee a lump
sum cash payment equal to the monthly premiums that
would have been paid by the Company to provide such
benefits to the Employee for each month such coverage is
not provided under this Section 8(a)(v). Nothing in this
Section 8(a)(v) will extend the COBRA continuation
coverage period.
(b) Termination by the Company for Cause or by the Employee
without Good Reason. If the Employee's employment is
terminated (i) by the Company for Cause or (ii) by the
Employee without Good Reason (excluding for this purpose the
Employee terminating his employment without Good Reason during
the six (6) month period immediately following a Change in
Control in accordance with Section 8(a)), the Company's only
obligation under this Agreement shall be payment of any earned
but unpaid Annual Base Salary and any expense reimbursement
payments owed to the Employee.
(c) Termination due to Death or Disability. If the Employee's
employment is terminated due to death or Disability, the
Company shall pay to the Employee (or to the Employee's estate
or personal representative in the case of the Employee's
death), within thirty (30) business days after the Date of
Termination, (i) any Accrued Obligations and (ii) a prorated
Annual Bonus based on (A) the target Annual Bonus opportunity
in the year in which the Date of Termination occurs or the
prior year if no target Annual Bonus opportunity has yet been
determined and (B) the fraction of the year the Employee was
employed.
(d) Definition of Change in Control. For purposes of this
Agreement, the term "Change in Control" shall mean that the
conditions set forth in any one of the following subsections
shall have been satisfied:
(i) the acquisition, directly or indirectly, by any "person"
(within the meaning of Section 3(a)(9) of the Securities
and Exchange Act of 1934, as amended (the "Exchange
Act") and used in Sections 13(d) and 14(d) thereof) of
"beneficial ownership" (within the meaning of Rule 13d-3
of the Exchange Act) of securities of the Company
possessing more than 50% of the total combined voting
power of all outstanding securities of the Company;
(ii) a merger or consolidation in which the Company is not
the surviving entity, except for a transaction in which
the holders of the outstanding voting securities of the
Company immediately prior to such merger or
consolidation hold, in the aggregate, securities
possessing more than 50% of the total combined voting
power of all outstanding voting securities of the
surviving entity immediately after such merger or
consolidation;
(iii) a reverse merger in which the Company is the surviving
entity but in which securities possessing more than 50%
of the total combined voting
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power of all outstanding voting securities of the
Company are transferred to or acquired by a person or
persons different from the persons holding those
securities immediately prior to such merger;
(iv) during any period of two (2) consecutive years during
the Employment Term or any extensions thereof,
individuals, who, at the beginning of such period,
constitute the Board, cease for any reason to constitute
at least a majority thereof, unless the election of each
director who was not a director at the beginning of such
period has been approved in advance by directors
representing at least two-thirds of the directors then
in office who were directors at the beginning of the
period;
(v) the sale, transfer or other disposition (in one
transaction or a series of related transactions) of
assets of the Company that have a total fair market
value equal to or more than one-third of the total fair
market value of all of the assets of the Company
immediately prior to such sale, transfer or other
disposition, other than a sale, transfer or other
disposition to an entity (x) which immediately following
such sale, transfer or other disposition owns, directly
or indirectly, at least 50% of the Company's outstanding
voting securities or (y) 50% or more of whose
outstanding voting securities is immediately following
such sale, transfer or other disposition owned, directly
or indirectly, by the Company. For purposes of the
foregoing clause, the sale of stock of a subsidiary of
the Company (or the assets of such subsidiary) shall be
treated as a sale of assets of the Company; or
(vi) the approval by the stockholders of a plan or proposal
for the liquidation or dissolution of the Company.
For purposes of this Agreement, no event or transaction which is entered into,
is contemplated by, or occurs as a result of the Agreement and Plan of Merger
dated as of June 25, 2006 by and between Fidelity National Information Services,
Inc. and Fidelity National Financial, Inc. or the Securities Exchange and
Distribution Agreement, dated as of June 25, 2006 between Fidelity National
Financial, Inc. and Fidelity National Title Group, Inc. shall constitute a
Change in Control. In addition, no event or transaction which results in the
merger or other combination of the Company or any affiliate thereof with
Fidelity National Financial, Inc. (f/k/a Fidelity National Title Group, Inc.) or
any affiliate thereof in which the combined shareholders of both entities before
such transaction own at least 80% in the aggregate of the voting power of the
stock of the combined or merged company immediately after such event or
transaction shall constitute a Change in Control.
9. Excise Tax Gross-up Payments.
(a) If any payments or benefits paid or provided or to be paid or
provided to the Employee or for his benefit pursuant to the terms of
this Agreement or otherwise in connection with, or arising out of,
his employment with the Company or its subsidiaries or the
termination thereof (a "Payment" and, collectively, the "Payments")
would be subject to the excise tax (the "Excise Tax") imposed by
Section 4999 of the Code, then, except as otherwise provided in this
Section 9(a),
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the Employee will be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that, after payment by the
Employee of all income taxes, all employment taxes and any Excise
Tax imposed upon the Gross-Up Payment (including any related
interest and penalties), the Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax (including any related
interest and penalties) imposed upon the Payments. Notwithstanding
the foregoing, if the amount of the Payments does not exceed by more
than 3% the amount that would be payable to the Employee if the
Payments were reduced to one dollar less than what would constitute
a "parachute payment" under Section 280G of the Code (the "Scaled
Back Amount"), then the Payments shall be reduced, in a manner
determined by the Employee, to the Scaled Back Amount, and the
Employee shall not be entitled to any Gross-Up Payment.
(b) An initial determination of (i) whether a Gross-Up Payment is
required pursuant to this Agreement, and, if applicable, the amount
of such Gross-Up Payment or (ii) whether the Payments must be
reduced to the Scaled Back Amount and, if so, the amount of such
reduction, will be made at the Company's expense by an accounting
firm selected by the Company. The accounting firm will provide its
determination, together with detailed supporting calculations and
documentation, to the Company and the Employee within ten (10)
business days after the date of termination of Employee's
employment, or such other time as may be reasonably requested by the
Company or the Employee. If the accounting firm determines that no
Excise Tax is payable by the Employee with respect to a Payment or
Payments, it will furnish the Employee with an opinion to that
effect. If a Gross-Up Payment becomes payable, such Gross-Up Payment
will be paid by the Company to the Employee within thirty (30)
business days of the receipt of the accounting firm's determination.
If a reduction in Payments is required, such reduction shall be
effectuated within thirty (30) business days of the receipt of the
accounting firm's determination. Within ten (10) business days after
the accounting firm delivers its determination to the Employee, the
Employee will have the right to dispute the determination. The
existence of a dispute will not in any way affect the Employee's
right to receive a Gross-Up Payment in accordance with the
determination. If there is no dispute, the determination will be
binding, final, and conclusive upon the Company and the Employee. If
there is a dispute, the Company and the Employee will together
select a second accounting firm, which will review the determination
and the Employee's basis for the dispute and then will render its
own determination, which will be binding, final, and conclusive on
the Company and on the Employee for purposes of determining whether
a Gross-Up Payment is required pursuant to this Section 9(b) or
whether a reduction to the Scaled Back Amount is required, as the
case may be. If as a result of any dispute pursuant to this Section
9(b) a Gross-Up Payment is made or additional Gross-Up Payments are
made, such Gross-Up Payment(s) will be paid by the Company to the
Employee within thirty (30) business days of the receipt of the
second accounting firm's determination. The Company will bear all
costs associated with the second accounting firm's determination,
unless such determination does not result in additional Gross-Up
Payments to the Employee or unless such determination does not
mitigate the reduction in Payments required
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to arrive at the Scaled Back Amount, in which case all such costs
will be borne by the Employee.
(c) For purposes of determining the amount of the Gross-Up Payment and,
if applicable, the Scaled Back Amount, the Employee will be deemed
to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment
is to be made or the Scaled Back Amount is determined, as the case
may be, and applicable state and local income taxes at the highest
marginal rate of taxation in the state and locality of the
Employee's residence on the date of termination of Employee's
employment, net of the maximum reduction in federal income taxes
that would be obtained from deduction of those state and local
taxes.
(d) As a result of the uncertainty in the application of Section 4999 of
the Code, it is possible that Gross-Up Payments which will not have
been made by the Company should have been made, the Employee's
Payments will be reduced to the Scaled Back Amount when they should
not have been or the Employee's Payments are reduced to a greater
extent than they should have been (an "Underpayment") or Gross-Up
Payments are made by the Company which should not have been made,
the Employee's Payments are not reduced to the Scaled Back Amount
when they should have been or they are not reduced to the extent
they should have been (an "Overpayment"). If it is determined that
an Underpayment has occurred, the accounting firm shall determine
the amount of the Underpayment that has occurred and any such
Underpayment (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) shall be promptly paid by the Company to
or for the benefit of Employee. If it is determined that an
Overpayment has occurred, the accounting firm shall determine the
amount of the Overpayment that has occurred and any such Overpayment
(together with interest at the rate provided in Section 1274(b)(2)
of the Code) shall be promptly paid by the Employee (to the extent
he has received a refund if the applicable Excise Tax has been paid
to the Internal Revenue Service) to or for the benefit of the
Company; provided, however, that if the Company determines that such
repayment obligation would be or result in an unlawful extension of
credit under Section 13(k) of the Exchange Act, repayment shall not
be required. The Employee shall cooperate, to the extent his
expenses are reimbursed by the Company, with any reasonable requests
by the Company in connection with any contest or disputes with the
Internal Revenue Service in connection with the Excise Tax.
(e) The Employee shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require a
payment resulting in an Underpayment. Such notification shall be
given as soon as practicable but no later than ten (10) business
days after the Employee is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid. The Employee shall not
pay such claim prior to the expiration of the thirty (30) day period
following the date on which he gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies
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the Employee in writing prior to the expiration of such period that
it desires to contest such claim, the Employee shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceeding relating
to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and
hold the Employee harmless, on an after-tax basis, for any Excise
Tax or income tax (including related interest and penalties) imposed
as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this
Section 9(e), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Employee to pay the tax
claimed and xxx for a refund or contest the claim in any permissible
manner, and the Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company
directs the Employee to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Employee, on
an interest-free basis and shall indemnify and hold the Employee
harmless, on an after-tax basis, from any Excise Tax or income tax
(including related interest or penalties) imposed with respect to
such advance or with respect to any imputed income with respect to
such advance. The Company's control of the contest shall be limited
to issues that may impact Gross-Up Payments or reduction in Payments
under this Section 9, and the Employee shall be entitled to settle
or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(f) If, after the receipt by the Employee of an amount advanced by the
Company pursuant to Section 9(e), the Employee becomes entitled to
receive any refund with respect to such claim, the Employee shall
(subject to the Company's complying with the requirements of Section
9(e)) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Employee of an
amount advanced by the Company pursuant to Section 9(e), a
determination is made that
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the Employee shall not be entitled to any refund with respect to
such claim and the Company does not notify the Employee in writing
of its intent to contest such denial of refund prior to the
expiration of thirty (30) days after such determination, then such
advance shall be forgiven and shall not be required to be repaid.
10. Non-Delegation of Employee's Rights. The obligations, rights and
benefits of the Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
11. Confidential Information. The Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence and he further acknowledges that he will have access to and learn
substantial information about the Company and its affiliates and their
operations that is confidential or not generally known in the industry
including, without limitation, information that relates to purchasing, sales,
customers, marketing, and the Company's and its affiliates' financial positions
and financing arrangements. The Employee agrees that all such information is
proprietary or confidential, or constitutes trade secrets and is the sole
property of the Company and/or its affiliates, as the case may be. The Employee
will keep confidential, and will not reproduce, copy or disclose to any other
person or firm, any such information or any documents or information relating to
the Company's or its affiliates' methods, processes, customers, accounts,
analyses, systems, charts, programs, procedures, correspondence or records, or
any other documents used or owned by the Company or any of its affiliates, nor
will the Employee advise, discuss with or in any way assist any other person,
firm or entity in obtaining or learning about any of the items described in this
Section 11. Accordingly, the Employee agrees that during the Employment Term and
at all times thereafter he will not disclose, or permit or encourage anyone else
to disclose, any such information, nor will he utilize any such information,
either alone or with others, outside the scope of his duties and
responsibilities with the Company and its affiliates.
12. Non-Competition During Employment Term. The Employee agrees that,
during the Employment Term, he will devote such business time, attention and
energies reasonably necessary to the diligent and faithful performance of the
services to the Company and its affiliates, and he will not engage in any way
whatsoever, directly or indirectly, in any business that is a direct competitor
with the Company's or its affiliates' principal business, nor solicit customers,
suppliers or employees of the Company or affiliates on behalf of, or in any
other manner work for or assist any business which is a direct competitor with
the Company's or its affiliates' principal business. For purposes of
clarification, Fidelity National Financial, Inc. and its affiliates shall not be
considered to be competitive with the Company and its affiliates, for purposes
of Section 12 and Section 13 of this Agreement. In addition, during the
Employment Term, the Employee will undertake no planning for or organization of
any business activity competitive with the work he performs as an employee of
the Company, and the Employee will not combine or conspire with any other
employee of the Company or any other person for the purpose of organizing any
such competitive business activity.
13. Non-Competition After Employment Term. The parties acknowledge that as
an executive officer of the Company the Employee will acquire substantial
knowledge and information concerning the business of the Company and its
affiliates as a result of his
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employment. The parties further acknowledge that the scope of business in which
the Company and its affiliates are engaged as of the Effective Date is national
and very competitive and one in which few companies can successfully compete.
Competition by an executive officer such as the Employee in that business after
the Employment Term is terminated would severely injure the Company and its
affiliates. Accordingly, for a period of one (1) year after the Employee's
employment terminates for any reason whatsoever, except as otherwise stated
herein below, the Employee agrees (a) not to become an employee, consultant,
advisor, principal, partner or substantial shareholder of any firm or business
that directly competes with the Company or its affiliates in their principal
products and markets, and (b), on behalf of any such competitive firm or
business, not to solicit any person or business that was at the time of such
termination and remains a customer or prospective customer, a supplier or
prospective supplier, or an employee of the Company or an affiliate.
Notwithstanding any of the foregoing provisions to the contrary, the Employee
shall not be subject to the restrictions set forth in this Section 13 under the
following circumstances:
(a) if the Employee's employment is terminated by the Company without
Cause;
(b) if the Employee's employment is terminated as a result of the
Company's unwillingness to extend the Employment Term;
(c) if the Employee terminates employment for Good Reason; or
(d) if the Employee terminates employment without Good Reason, any time
during the six (6) month period beginning on the first day following
the six (6) month anniversary of a Change in Control.
14. Return of Company Documents. Upon termination of the Employment Term,
Employee shall return immediately to the Company all records and documents of or
pertaining to the Company or its affiliates and shall not make or retain any
copy or extract of any such record or document, and other property of the
Company or its affiliates.
15. Improvements and Inventions. Any and all improvements or inventions,
which the Employee may make or participate in during the Employment Term, unless
wholly unrelated to the business of the Company and its affiliates and produced
not in the scope of Employee's employment hereunder, shall be the sole and
exclusive property of the Company. The Employee will, whenever requested by the
Company, execute and deliver any and all documents which the Company shall deem
appropriate in order to apply for and obtain patents for improvements or
inventions or in order to assign and convey to the Company the sole and
exclusive right, title and interest in and to such improvements, inventions,
patents or applications.
16. Actions. The parties agree and acknowledge that the rights conveyed by
this Agreement are of a unique and special nature and that the Company will not
have an adequate remedy at law in the event of a failure by the Employee to
abide by its terms and conditions nor will money damages adequately compensate
for such injury. It is, therefore, agreed between and hereby acknowledged by the
parties that, in the event of a breach by the Employee of any of his obligations
contained in this Agreement, the Company shall have the right, among other
rights, to damages sustained thereby and to obtain an injunction or decree of
specific performance from any court of competent jurisdiction to restrain or
compel the Employee to perform as agreed
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herein. The Employee hereby acknowledges that obligations under Sections 11, 13,
14, 15, 16, 17 and 18 shall survive the termination of his employment and he
shall be bound by their terms at all times subsequent to the termination of his
employment for the periods specified therein. Nothing herein contained shall in
any way limit or exclude any other right granted by law or equity to the
Company.
17. Release. Notwithstanding any provision herein to the contrary, the
Company will require that, prior to payment of any amount or provision of any
benefit under Section 8 or payment of any Gross-Up Payment pursuant to Section 9
of this Agreement (other than due to the Employee's death), the Employee shall
have executed a complete release of the Company and its affiliates and related
parties in such form as is reasonably required by the Company, and any waiting
periods contained in such release shall have expired.
18. No Mitigation. The Company agrees that, if the Employee's employment
hereunder is terminated during the Employment Term, the Employee is not required
to seek other employment or to attempt in any way to reduce any amounts payable
to the Employee by the Company hereunder. Further, the amount of any payment or
benefit provided for hereunder (other than pursuant to Section 8(a)(v) hereof)
shall not be reduced by any compensation earned by the Employee as the result of
employment by another employer, by retirement benefits or otherwise.
19. Entire Agreement and Amendment. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter of this Agreement, and supersedes and replaces all prior agreements,
understandings and commitments with respect to such subject matter. This
Agreement may be amended only by a written document signed by both parties to
this Agreement.
20. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, excluding any conflicts or
choice of law rule or principle that might otherwise refer construction or
interpretation of this Agreement to the substantive law of another jurisdiction.
Any litigation pertaining to this Agreement shall be adjudicated in courts
located in Xxxxx County, Florida.
21. Successors. In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any such successor that expressly assumes this
Agreement or otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
22. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
23. Attorneys' Fees. If any party finds it necessary to employ legal
counsel or to bring an action at law or other proceedings against the other
party to interpret or enforce any of
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the terms hereof, the party prevailing in any such action or other proceeding
shall be paid by the other party its reasonable legal fees, court costs,
litigation expenses, all as determined by the court and not a jury; provided,
however, that on or after a Change in Control, if any party finds it necessary
to employ legal counsel or to bring an action at law or other proceedings
against the other party to interpret or enforce any of the terms hereof, the
Company shall pay (on an ongoing basis) to the Employee to the fullest extent
permitted by law, all legal fees, court costs and litigation expenses reasonably
incurred by the Employee or others on his behalf (such amounts collectively
referred to as the "Reimbursed Amounts"); provided, further, that the Employee
shall reimburse the Company for the Reimbursed Amounts if it is determined that
a majority of the Employee's claims or defenses were frivolous or without merit.
24. Severability. If any section, subsection or provision hereof is found
for any reason whatsoever to be invalid or inoperative, that section, subsection
or provision shall be deemed severable and shall not affect the force and
validity of any other provision of this Agreement. If any covenant herein is
determined by a court to be overly broad thereby making the covenant
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of the Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants in this Agreement.
25. Notices. Any notice, request, or instruction to be given hereunder
shall be in writing and shall be deemed given when personally delivered or three
(3) days after being sent by United States Certified Mail, postage prepaid, with
Return Receipt Requested, to the parties at their respective addresses set forth
below:
To the Company:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
To the Employee:
Xxxxxxx X. Xxxxx, XX
c/o Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
26. Waiver of Breach. The waiver by any party of any provisions of this
Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
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27. Tax Withholding. The Company or an affiliate may deduct from all
compensation and benefits payable under this Agreement any taxes or withholdings
the Company is required to deduct pursuant to state, federal or local laws.
28. Code Section 409A. To the extent applicable, it is intended that this
Agreement and any payment made hereunder shall comply with the requirements of
Section 409A of the Code, and any related regulations or other guidance
promulgated with respect to such Section by the U.S. Department of the Treasury
or the Internal Revenue Service ("Code Section 409A"). Any provision that would
cause the Agreement or any payment hereof to fail to satisfy Code Section 409A
shall have no force or effect until amended to comply with Code Section 409A,
which amendment may be retroactive to the extent permitted by Code Section 409A.
IN WITNESS WHEREOF the parties have executed this Agreement to be
effective as of the date first set forth above.
FIDELITY NATIONAL INFORMATION
SERVICES, INC.
By: /s/ Xxx X. Xxxxxxx
Its: President and Chief Executive Officer
XXXXXXX X. XXXXX, XX
/s/ Xxxxxxx X. Xxxxx XX
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APPENDIX A
POSITION TITLE: EXECUTIVE CHAIRMAN
DUTIES AND RESPONSIBILITIES: Reporting to the Board, the Employee's duties and
responsibilities include:
1. member of the Company's Board as Chairman, if so elected;
2. strategic planning and initiatives;
3. mergers and acquisitions;
4. business development;
5. budget and long range planning advice;
6. presiding over meetings of the Board and shareholders, if elected as
Chairman of the Board;
7. planning the contents and agenda of such meetings with the
assistance of Company management;
8. supervising the Company's communications with its shareholders;
9. participating in customer relations and public relations.
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