EXHIBIT 10.10
LENDER PROCESSING SERVICES, INC.
Special Supplemental Executive Retirement Plan
Article I — Introduction and Establishment
THIS SPECIAL SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN (the “Plan”), maintained by Lender
Processing Services, Inc. (the “Company”), is
established for the benefit of certain executive officers of the
Company whose ability to participate in an equity split-dollar life
insurance program has been limited by the Sarbanes-Oxley Act of
2002. The Plan is effective as of July 2, 2008 (the
“Effective Date”).
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. Special Supplemental Executive
Retirement Plan (the “FIS Plan”). This Plan shall be
considered to be a successor plan to the FIS Plan.
Article II — Definitions
When used in this Plan, the following
terms shall have the meanings set forth below unless a different
meaning is plainly required by the context:
2.1 Board.
“Board” shall mean the Board of Directors of the
Company.
2.2 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
(b) the Participant willfully
engaging in conduct that is materially injurious to the Company,
monetarily or otherwise.
For purposes of this
Section 2.2, 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
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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 2.2, and specifying the
particulars of that finding in detail.
2.3 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 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
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(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 2.3, 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.
2.4 Commencement
Date. “Commencement Date” with respect to each
Participant shall mean the “Commencement Date” as
provided in Sections 2.1 and 2.3 of the Split Dollar
Plan.
2.5 Competitive
Activity . A Participant or former Participant shall
be deemed to engage in “Competitive Activity” if he or
she:
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(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.
2.6 Early
Benefit . “Early Benefit” shall have the
meaning provided in Section 4.8.
2.7 ERISA
. “ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended.
2.8 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.
2.9 Good Reason
. “Good Reason” shall mean a termination by the
Participant of the Participant’s employment within the period
of time beginning six (6) months prior to a Change in Control
and ending on the third anniversary of such Change in Control and
based on:
(a) The assignment to the Participant
of duties inconsistent with the Participant’s position and
status with the Company as they existed immediately prior to the
Change in Control, or a substantial change in the
Participant’s title, offices or authority, or in the nature
of the Participant’s responsibilities, as they existed
immediately prior to the Change in Control, except in connection
with the termination of the Participant’s employment by the
Company for Cause, by the Participant other than for Good Reason or
as a result of death;
(b) A reduction by the Company in the
Participant’s base salary as in effect on the Commencement
Date or as the Participant’s salary may be increased from
time to time;
(c) A failure by the Company to
continue the Company’s incentive compensation plan(s), as it
may be modified from time to time, substantially in the form in
effect immediately prior to a Change in Control (the
“Incentive Plan”), or a failure by
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the Company to
continue the Participant as a participant in the Incentive Plan on
at least the basis of the Participant’s participation
immediately prior to a Change in Control, or to pay the Participant
the amounts that the Participant would be entitled to receive in
accordance with the terms of the Incentive Plan (as in effect
immediately prior to the Change in Control);
(d) The Company requiring the
Participant to be based more than thirty-five (35) miles from
the location where the Participant is based prior to the Change in
Control, except for required travel on Company business to an
extent substantially consistent with the Participant’s
business travel obligations immediately prior to the Change in
Control; or if the Participant consents to the relocation, the
failure by the Company to pay (or reimburse the Participant for)
all reasonable moving expenses incurred by the Participant or to
indemnify the Participant against any loss realized on the sale of
the Participant’s principal residence in connection with the
relocation;
(e) The failure by the Company to
continue in effect any retirement plan, compensation plan,
performance share plan, stock option plan, life insurance plan,
health and accident plan, disability plan or another benefit plan
in which the Participant is participating immediately prior to a
Change in Control (except that the Company may cancel any such
plans without triggering this paragraph (e), if it provides the
Participant with substantially similar benefits under another
plan), the taking of any action by the Company that would adversely
affect the Participant’s participation or materially reduce
the Participant’s benefits under any such plans or deprive
the Participant of any material fringe benefit enjoyed by the
Participant immediately prior to a Change in Control, or the
failure by the Company to provide the Participant with the number
of paid vacation days to which the Participant is then entitled in
accordance with the Company’s normal vacation practices in
effect immediately prior to a Change in Control; or
(f) Any purported termination not
effected pursuant to a Notice of Termination shall not be valid for
purposes of this Plan.
2.10 Notice of
Termination . A “Notice of Termination”
shall mean a written notice that indicates the specific provision
in the definition of Cause relied upon as the basis for the
Participant’s termination of employment and setting forth in
reasonable detail the facts and circumstances claimed to provide a
basis for the termination of Participant’s employment under
the provision so indicated.
2.11
Participant . “Participant” shall
mean any eligible Executive Officer who is listed on
Schedule A , has satisfied the requirements for
participation in this Plan and has a Participant Interest.
2.12 Participant
Interest . “Participant Interest” shall
mean the amount reflected in records maintained by the Plan
Administrator to determine each Participant’s interest, if
any, under this Plan. Such Participant Interest shall be reflected
as an entry in the Company’s records.
2.13 Payment
Event . “Payment Event” shall have the
meaning provided in Section 4.7.
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2.14 Permanently
Disabled . “Permanently Disabled” shall
mean the Participant suffering a sickness, accident or injury,
which in the determination of the Plan Administrator would entitle
the Participant to disability benefits under either social security
or the Company’s long-term disability plan. The Company
reserves the right to require the Participant to first qualify for
disability benefits under either social security or the
Company’s long-term disability plan before determining
whether such Participant is Permanently Disabled for purposes of
this Plan.
2.15 Plan.
“Plan” shall mean the Lender Processing Services, Inc.
Special Supplemental Executive Retirement Plan, as it may be
amended from time to time.
2.16 Plan
Administrator . “Plan Administrator”
shall mean the designated committee of the Board, or its designee
or designees. The Plan Administrator shall be the named fiduciary
under the Plan.
2.17 Retirement
. “Retirement” shall mean a Participant’s
termination of employment with the Company and all affiliates after
(a) attaining age 65, (b) attaining age 55 and five years
of service with the “LPS Group” or (c) attaining
age 50 and the Participant’s age plus his or her years of
service with the “LPS Group” equals at least 75.
“LPS Group” means the Company, any related company that
is required to be aggregated with the Company under Code Section
414(b) or (c), and any predecessor to the Company, including
Fidelity National Information Services, Inc. and Certegy Inc.
2.18 Rollout
Event . “Rollout Event” shall have the
meaning provided in Section 4.4.
2.19 Split Dollar
Plan . “Split Dollar Plan” shall mean the
Lender Processing Services, Inc. Executive Life and Supplemental
Retirement Benefit Plan, effective as of July 2, 2008, as
amended from time to time.
2.20 Subsidiary
. “Subsidiary” shall mean an entity more than
fifty percent (50%) of whose equity interests are owned directly or
indirectly by the Company.
2.21 Valuation
Date . “Valuation Date” shall mean any
date(s) selected by the Plan Administrator in its sole discretion
as of which the Participants’ Participant Interests are
valued.
2.22 Vesting.
“Vesting” shall mean when a Participant becomes vested
under the Plan in accordance with Section 4.2
Article III — Participation
3.1 Eligibility and
Participation . Each Executive Officer who has been
authorized to enter into a Split-Dollar Life Insurance Agreement
(Endorsement Non-Equity Method) by the Plan Administrator (but not
by any designee thereof) shall be eligible to participate in the
Plan. All Participants shall be listed on Schedule A. An
Executive Officer who is eligible to participate shall become a
Participant on the date he first has a Participant Interest, as
determined by the Plan Administrator or its designee in its
discretion. An Executive Officer who becomes a
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Participant shall continue as a Participant, until his Participant
Interest is determined by the Plan Administrator or its designee to
have been fully paid out, forfeited or permanently eliminated. Any
Executive Officers 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 Split-Dollar Life Insurance
Agreements (Endorsement Non-Equity Method) and Participant
Interests of each transferred Participant from the FIS Plan shall
also transfer to this Plan as of the Effective Date. There shall be
no new Participants added to the Plan.
3.2 Participant
Interest .
(a) As of one or more Valuation
Dates, as determined by the Plan Administrator, a
Participant’s Participant Interest
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