EXHIBIT 10.9
LENDER PROCESSING SERVICES, INC.
Executive Life and Supplemental
Retirement Benefit Plan
Effective as of July 2, 2008
THIS EXECUTIVE LIFE AND SUPPLEMENTAL
RETIREMENT BENEFIT PLAN (the “Plan”), maintained by
Lender Processing Services, Inc. (the “Company”) for
selected executives as provided herein, is hereby adopted by the
Company effective as of July 2, 2008 (the “Effective
Date”).
Article I — Purpose
The purpose of the Plan is to reward
certain specified executives of the Company for their service to
the Company and to provide an incentive to the Participants,
including newly hired executives, for future service and loyalty to
the Company. This Plan provides benefits through life insurance
policies (each a “Policy”) on the lives of
Participants. Plan benefits and a Participant’s interest in a
Policy shall be as set forth in the Participant Agreements that
each Participant is required to execute with the Company before
becoming a participant herein. In all cases, a Participant’s
interest in this Plan and the benefits provided hereunder shall be
governed by this Plan and the terms of the Participant Agreements,
which shall be considered to be a part of this Plan.
The Plan is established by the
Company in connection with the spinoff of the Company from Fidelity
National Information Services, Inc. Prior to the spinoff, the
Company was a participating employer in the Fidelity National
Information Services, Inc. Executive Life and Supplemental
Retirement Benefit Plan (the “FIS Plan”). This Plan
shall be considered to be a successor plan to the FIS Plan.
Article II — Eligibility and Participation
2.1 Eligibility and
Participation . Participants shall be designated by
the Plan Administrator and shall be informed in writing of the
effective date of their participation in the Plan (the
“Commencement Date”) and their level of life insurance
benefits to which they may be entitled. In order to participate, a
Participant must complete certain enrollment documents and must
execute a Split-Dollar Life Insurance Agreement which specifies,
among other matters, the respective interests of the Participant
and the Company in the Policy issued by the Insurance Company
(collectively, the “Participant Agreements”). In
certain circumstances, as determined at the discretion of the Plan
Administrator, a Participant may also be required to complete and
execute (i) a Collateral Assignment of certain rights in the
Policy in favor of the Company, and/or (ii) a Policy
Endorsement securing certain rights in the Policy in favor of the
Company (as appropriate, the phrase “Participant
Agreements” as used herein shall include such Collateral
Assignment or Policy Endorsement). There shall be no new
Participants added to the Plan.
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2.2 Participation of
Executive Officers . With respect to any Participant
who will become an Executive Officer after the Effective Date, then
notwithstanding any contrary term in such Participant’s
Participant Agreement, immediately prior to the Participant’s
becoming an Executive Officer, the rights of the Participant (or
the rights of a Trustee in Interest) to any cash surrender value in
any Policy covering the Participant shall forfeit immediately to
the Company. Effective as of the time the Participant becomes an
Executive Officer, certain Policy rights (including ownership of
the Policy) shall immediately transfer to the Company. The Company
shall determine the period of advance notice, if any, and the
manner of notice to be provided to any Participant who may become
subject to this Section 2.2. In the event a forfeiture of
Policy rights occurs, as described above, then immediately and
automatically upon the Participant’s becoming an Executive
Officer the Participant (and/or Trustee in Interest) shall become a
party to a Participant Agreement substantially in the form
determined by the Plan Administrator. This agreement shall not
substantially reduce the effective death benefits provided under
the prior Participant Agreement nor impair the right to name a
beneficiary for such death benefits, but such modification may
reduce or eliminate the right to any portion of the death benefits
that are derived from cash value.
2.3 Transfer of
Participants . Any Participants who are employed by
the Company and who participated in the FIS Plan prior to the
spinoff of the Company shall be transferred to this Plan as of the
Effective Date and their eligibility and participation in this Plan
shall continue pursuant to the terms of this Plan. The Participant
Agreements of each transferred Participant from the FIS Plan shall
also transfer to this Plan as of the Effective Date, and each
transferred Participant shall retain his/her original Commencement
Date from the FIS Plan. To the extent that a Participant is
eligible to have his/her Policy premiums paid from the Certegy Inc.
grantor trust under the FIS Plan, the transfer to this Plan shall
have no effect on such premium payments and such
Participants’ Policy premiums shall continue to be paid from
such grantor trust based on its terms and conditions.
Article III — Definitions
The following terms shall have the
meanings ascribed to them below for purposes of the Plan, the
Participant Agreements and the Questions and Answers for the
Executive Life and Supplemental Retirement Benefit Plan, and any
amendments, supplements or successors thereto. Other capitalized
terms used herein and not defined herein shall have the meanings
ascribed to them in the Participant Agreements.
3.1 Cause
. “Cause” shall mean termination by the Company
of the Participant’s employment upon any one of the following
circumstances:
(a) the Participant’s willful
and continued failure to substantially perform the
Participant’s duties with the Company (other than any failure
resulting from the Participant’s incapacity due to physical
or mental illness, including being Permanently Disabled), after a
written demand for substantial performance is delivered to the
Participant by the Chief Executive Officer of the Company (or if
the Participant is the Chief Executive Officer, the Chairman of the
Compensation and Human Resources Committee of the Board of
Directors) that specifically identifies the manner in which the
Chief Executive Officer (or the Chairman) believes that the
Participant has not substantially performed the Participant’s
duties, or
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(b) the Participant willfully
engaging in conduct that is materially injurious to the Company,
monetarily or otherwise.
For purposes of this
Section 3.1, no act, or failure to act, on the
Participant’s part will be considered “willful”
unless done, or omitted to be done, by the Participant not in good
faith and without reasonable belief that the Participant’s
action or omission was in the best interest of the Company.
Notwithstanding the above, the Participant will not be deemed to
have been terminated for Cause unless and until the Participant has
been given a copy of a Notice of Termination from the Chief
Executive Officer of the Company (or if the Participant is the
Chief Executive Officer, the Chairman of the Compensation and Human
Resources Committee of the Board of Directors), after reasonable
notice to the Participant and an opportunity for the Participant,
together with the Participant’s counsel, to be heard before
(i) the Chief Executive Officer, or (ii) if the
Participant is an elected officer of the Company, the Board of
Directors of the Company, finding that in the good faith opinion of
the Chief Executive Officer, or, in the case of an elected officer,
finding that in the good faith opinion of two-thirds of the Board
of Directors, the Participant committed the conduct set forth above
in clauses (a) or (b) of this Section 3.1, and
specifying the particulars of that finding in detail.
3.2 Change in
Control . “ Change in Control” shall
mean the occurrence of any one of the following events during the
period in which the Plan remains in effect:
(a) Voting Stock Accumulations
. The accumulation by any Person of Beneficial Ownership of twenty
percent (20%) or more of the combined voting power of the
Company’s Voting Stock; provided that for purposes of
this paragraph (a), a Change in Control will not be deemed to have
occurred if the accumulation of twenty percent (20%) or more of the
voting power of the Company’s Voting Stock results from any
acquisition of Voting Stock (i) directly from the Company that
is approved by the Incumbent Board, (ii) by the Company,
(iii) by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, or
(iv) by any Person pursuant to a Business Combination that
complies with all of the provisions of clauses (i), (ii) and
(iii) of paragraph (b) below;
(b) Business Combinations .
The consummation of a Business Combination, unless, immediately
following that Business Combination, (i) all or substantially
all of the Persons who were the beneficial owners of Voting Stock
of the Company immediately prior to that Business Combination
beneficially own, directly or indirectly, more than sixty-six and
two-thirds percent (66 2/3%) of the then outstanding shares of
common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors of the entity resulting from that Business Combination
(including an entity that as a result of that transaction owns the
Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries) in
substantially the same proportions relative to each other as their
ownership, immediately prior to that Business Combination, of the
Voting Stock of the Company, (ii) no Person (other than the
Company, that entity resulting from that Business Combination, or
any employee benefit plan (or related trust) sponsored or
maintained by the Company, any Eighty Percent (80%) Subsidiary or
that entity resulting from that Business Combination) beneficially
owns, directly or indirectly, twenty percent (20%) or more of the
then outstanding shares of common stock of the entity resulting
from that Business Combination or the combined voting power of the
then outstanding
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voting
securities entitled to vote generally in the election of directors
of that entity, and (iii) at least a majority of the members
of the Board of Directors of the entity resulting from that
Business Combination were members of the Incumbent Board at the
time of the action of the board providing for that Business
Combination;
(c) Sale of Assets . A sale or
other disposition of all or substantially all of the assets of the
Company; or
(d) Liquidations or
Dissolutions . Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company, except pursuant
to a Business Combination that complies with all of the provisions
of clauses (i), (ii) and (iii) of paragraph
(b) above.
For
purposes of this Section 3.2, the following definitions will
apply:
“Beneficial Ownership”
means beneficial ownership as that term is used in Rule 13d-3
promulgated under the Exchange Act.
“Business Combination”
means a reorganization, merger or consolidation of the
Company.
“Eighty Percent (80%)
Subsidiary” means an entity in which the Company directly or
indirectly beneficially owns eighty percent (80%) or more of the
outstanding Voting Stock.
“Exchange Act” means the
Securities Exchange Act of 1934, including amendments, or successor
statutes of similar intent.
“Incumbent Board” means a
Board of Directors at least a majority of whom consist of
individuals who either are (a) members of the Company’s
Board of Directors as of the day after the spinoff of the Company
from Fidelity National Information Services, Inc. became effective,
or (b) members who became members of the Company’s Board
of Directors subsequent to such date whose election, or nomination
for election by the Company’s shareholders, was approved by a
vote of at least two-thirds (2/3) of the directors then comprising
the Incumbent Board (either by a specific vote or by approval of
the proxy statement of the Company in which that person is named as
a nominee for director, without objection to that nomination), but
excluding, for that purpose, any individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest (within the meaning of Rule 14a-11 of the
Exchange Act) with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board of
Directors.
“Person” means any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14 (d)(2) of the Exchange Act).
“Voting Stock” means the
then outstanding securities of an entity entitled to vote generally
in the election of members of that entity’s Board of
Directors.
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3.3 Claimant
. “Claimant” shall have the meaning given to it
in Section 4.1.
3.4 Commencement
Date . “Commencement Date” shall have
the meaning given to it in Section 2.1.
3.5 Company
. “Company” shall mean Lender Processing
Services, Inc., and its successor or successors.
3.6 Competitive
Activity . A Participant or former Participant shall
be deemed to engage in “Competitive Activity” if he or
she:
(a) directly or indirectly owns,
operates, controls, participates in, performs services for, or
otherwise carries on, a business substantially similar to or
competitive with the business conducted by the Company or any
Subsidiary (without limit to any particular region, because
Participant acknowledges that such business may be engaged in
effectively from any location in the United States or Canada);
provided that nothing set forth in this paragraph
(a) will prohibit a Participant from owning not in excess of
5% of any class of capital stock of any corporation if such stock
is publicly traded and listed on any national or regional stock
exchange or on the Nasdaq Stock Market;
(b) directly or indirectly attempts
to persuade any employee or customer of the Company or any
Subsidiary to terminate such employment or business relationship in
order to enter into any such relationship on behalf of the
Participant or any third party in competition with the business
conducted by the Company or any Subsidiary; or
(c) directly or indirectly engages in
any activity that is harmful to the interests of the Company or any
Subsidiary, as determined by the Compensation and Human Resources
Committee in its sole discretion, including the disclosure or
misuse of any confidential information or trade secrets of the
Company or a Subsidiary.
3.7 Executive
Officer . “Executive Officer” shall mean
an officer of the Company who the Plan Administrator determines, in
an exercise of the Plan Administrator’s discretion, to be an
executive officer within the meaning of the Sarbanes-Oxley Act of
2002.
3.8 Good Reason
. “Good Reason” shall mean a termination by the
Participant of the Participant’s employment within the period
of time beginning six (6
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