THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is effective as
of May 1, 2008 (the “Effective Date”), by and
between FIDELITY NATIONAL INFORMATION SERVICES, INC., a
Georgia corporation (the “Company”), and FRANK R.
SANCHEZ (the “Employee”). In consideration of the
mutual covenants and agreements set forth herein, the parties agree
as follows:
1.
Purpose and Release . The purpose of this Agreement is to
terminate all prior agreements between Company, and any of its
affiliates, and Employee relating to the subject matter of this
Agreement (including an Employment Agreement dated March 1,
2005 and a Non-Competition Agreement dated January 27, 2004
with Fidelity Information Services, Inc.), to recognize
Employee’s significant contributions to the overall financial
performance and success of Company, to protect Company’s
business interests through the addition of restrictive covenants,
and to provide a single, integrated document which shall provide
the basis for Employee’s continued employment by Company. In
consideration of the execution of this Agreement and the
termination of all such prior agreements, the parties each release
all rights and claims that they have, had or may have arising under
such prior agreements.
2.
Employment and Duties . Subject to the terms and conditions
of this Agreement, Company employs Employee to serve as President,
Strategic Solutions. Employee accepts such employment and agrees to
undertake and discharge the duties, functions and responsibilities
commensurate with the aforesaid position and such other duties and
responsibilities as may be prescribed from time to time by the
Chief Executive Officer (the “CEO”) or the Board of
Directors of the Company (the “Board”). Except as
expressly provided in Subsection 13(c), Employee shall devote
substantially all of his business time, attention and effort to the
performance of his duties hereunder and shall not engage in any
business, profession or occupation, for compensation or otherwise
without the express written consent of the CEO or Board, other than
personal, personal investment, charitable, or civic activities or
other matters that do not conflict with Employee’s
duties.
3.
Term . This Agreement shall commence on the Effective Date
and, unless terminated as set forth in Section 8, continue
through April 15, 2011. This Agreement shall be extended
automatically for successive one (1) year periods (the initial
period and any extensions being collectively referred to as the
“Employment Term”). Either party may terminate this
Agreement as of the end of the then-current period by giving
written notice at least thirty (30) days prior to the end of
that period. Notwithstanding any termination of this Agreement or
Employee’s employment, Sections 8 through 10 shall
remain in effect until all obligations and benefits that accrued
prior to termination are satisfied.
4.
Salary . During the Employment Term, Company shall pay
Employee an annual base salary, before deducting all applicable
withholdings, of no less than $590,000.00 per year, payable at the
time and in the manner dictated by Company’s standard payroll
policies. Such minimum annual base salary may be periodically
reviewed and increased (but not decreased without Employee’s
express written consent) at the discretion of the CEO, Board or
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 4, the “Annual Base
Salary”).
5. Other
Compensation and Fringe Benefits . In addition to any executive
bonus, pension, deferred compensation and long-term incentive plans
which Company or an affiliate of Company may from time to time make
available to Employee, Employee shall be entitled to the following
during the Employment Term:
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(a)
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the
standard Company benefits enjoyed by Company’s other top
executives as a group;
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(b)
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medical and other insurance coverage
(for Employee and any covered dependents) provided by Company to
its other top executives as a group;
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(c)
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supplemental disability insurance
sufficient to provide two-thirds of Employee’s pre-disability
Annual Base Salary;
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(d)
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an
annual incentive bonus opportunity under 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 CEO, Board or Committee (“Annual Bonus”).
Employee’s target Annual Bonus under the Annual Bonus Plan
shall be no less than 150% of Employee’s Annual Base Salary,
with a maximum of up to 300% of Employee’s Annual Base Salary
(collectively, the target and maximum are referred to as the
“Annual Bonus Opportunity”). Employee’s Annual
Bonus Opportunity may be periodically reviewed and increased (but
not decreased without Employee’s express written consent) at
the discretion of the Committee, Board or CEO. The Annual Bonus
shall be paid no later than the March 15
th
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 Employee unless Employee is employed by Company,
or an affiliate thereof, on the Annual Bonus payment date;
and
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(e)
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participation in Company’s
equity incentive plans.
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6.
Vacation . For and during each calendar year within the
Employment Term, Employee shall be entitled to reasonable paid
vacation periods consistent with Employee’s position and in
accordance with Company’s standard policies, or as the CEO,
Board or Committee may approve. In addition, Employee shall be
entitled to such holidays consistent with Company’s standard
policies or as the CEO, Board or Committee may approve.
7.
Expense Reimbursement . In addition to the compensation and
benefits provided herein, Company shall, upon receipt of
appropriate documentation, reimburse 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 Company’s expense
reimbursement policy.
8.
Termination of Employment . Company or Employee may
terminate Employee’s employment at any time and for any
reason in accordance with Subsection 8(a) below. The Employment
Term shall be deemed to have ended on the last day of
Employee’s employment. The Employment Term shall terminate
automatically upon Employee’s death.
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(a)
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Notice of Termination
. Any purported
termination of Employee’s employment (other than by reason of
death) shall be communicated by written Notice of Termination (as
defined herein) from one party to the other 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 Subsection 8(b)) and, with respect to a termination due
to Cause (as that term is defined in Subsection 8(d)), Disability
(as that term is defined in Subsection 8(e)) or Good Reason (as
that term is defined in Subsection 8(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 Company
shall specify whether the termination is with or without Cause or
due to Employee’s Disability. A Notice of Termination from
Employee shall specify whether the termination is with or without
Good Reason or due to Disability.
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(b)
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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 thirtieth (30 th ) day following the date the Notice
of Termination is given) or the date of Employee’s
death.
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(c)
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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.
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(d)
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Cause . For purposes of this Agreement, a
termination for “Cause” means a termination by Company
based upon 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 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 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) failure to
materially cooperate with or impeding an investigation authorized
by the Board.
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(e)
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Disability . For purposes of this Agreement, a
termination based upon “Disability” means a termination
by Company based upon Employee’s entitlement to long-term
disability benefits under 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)
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Good Reason . For purposes of this Agreement, a
termination for “Good Reason” means a termination by
Employee during the Employment Term based upon the occurrence
(without Employee’s express written consent) of any of the
following:
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(i)
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a
material diminution in Employee’s position or title, or the
assignment of duties to Employee that are materially inconsistent
with Employee’s position or title;
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(ii)
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a
material diminution in Employee’s Annual Base Salary or
Annual Bonus Opportunity;
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(iii)
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within six (6) months
immediately preceding or within two (2) years immediately following
a Change in Control: (A) a material adverse change in
Employee’s status, authority or responsibility (e.g., The
Company has determined that a change in the department or
functional group over which Employee has managerial authority would
constitute such a material adverse change); (B) a change in
the person to whom Employee reports that results in a material
adverse change to the Employee’s service relationship or the
conditions under which Employee performs his duties; (C) a
material adverse change in the position to whom Employee reports or
a material diminution in the authority, duties or responsibilities
of that position; (D) a material diminution in the budget over
which Employee has managing authority; or (E) a material
change in the geographic location of Employee’s principal
place of employment, which is currently Jacksonville, Florida
(e.g., The Company has determined that a relocation of more than
thirty-five (35) miles would constitute such a material
change); or
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(iv)
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a
material breach by Company of any of its obligations under this
Agreement.
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Notwithstanding
the foregoing, Employee being placed on a paid leave for up to
sixty (60) days pending a determination of whether there is a
basis to terminate Employee for Cause shall not constitute Good
Reason. 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: (1) Employee gives Notice of Termination to Company
specifying the condition or event relied upon for such termination
either: (x) within ninety (90) days of the initial
existence of such event; or (y) in the case of an event predating a
Change in Control, within ninety (90) days of the Change in
Control; and (2) Company fails to cure the condition or event
constituting Good Reason within thirty (30) days following
receipt of Employee’s Notice of Termination.
9.
Obligations of Company Upon Termination .
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(a)
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Termination by Company for a Reason
Other than Cause, Death or Disability and Termination by Employee
for Good Reason . If Employee’s employment is
terminated by: (1) Company for any reason other than Cause,
Death or Disability; or (2) Employee for Good Reason:
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(i)
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Company shall pay Employee the
following (collectively, the “Accrued Obligations”):
(A) within five (5) business days after the Date of
Termination, any earned but unpaid Annual Base Salary;
(B) within a
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reasonable time
following submission of all applicable documentation, any expense
reimbursement payments owed to Employee for expenses incurred prior
to the Date of Termination; and (C) no later than
March 15th of the year in which the Date of Termination
occurs, any earned but unpaid Annual Bonus payments relating to the
prior calendar year;
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(ii)
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Company shall pay Employee no later
than March 15 th of the calendar year following the
year in which the Date of Termination occurs, a prorated Annual
Bonus based upon the actual Annual Bonus that would have been
earned by Employee for the year in which the Date of Termination
occurs (based upon the target Annual Bonus opportunity in the year
in which the Date of Termination occurred, or the prior year if no
target Annual Bonus opportunity has yet been determined, and the
actual satisfaction of the applicable performance measures, but
ignoring any requirement under the Annual Bonus plan that Employee
must be employed on the payment date) multiplied by the percentage
of the calendar year completed before the Date of
Termination;
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(iii)
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Company shall pay Employee, within
thirty (30) business days after the Date of Termination, a
lump-sum payment equal to 300% of the sum of:
(A) Employee’s Annual Base Salary in effect immediately
prior to the Date of Termination (disregarding any reduction in
Annual Base Salary to which Employee did not expressly consent in
writing); and (B) the highest Annual Bonus paid to Employee by
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;
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(iv)
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All
stock option, restricted stock and other equity-based incentive
awards granted by 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; unless the equity incentive awards are
based upon satisfaction of performance criteria; in which case,
they will only vest pursuant to their express terms; and
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(v)
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As
long as Employee pays the full monthly premiums for COBRA coverage,
Company shall provide Employee and, as applicable, Employee’s
eligible dependents with continued medical and dental coverage, on
the same basis as provided to Company’s active executives and
their dependents until the earlier of: (i) three
(3) years after the Date of Termination; or (ii) the date
Employee is first eligible for medical and dental coverage (without
pre-existing condition limitations) with a subsequent employer. In
addition, within thirty (30) business days after the Date of
Termination, Company shall pay Employee a lump sum cash payment
equal to thirty-six monthly medical and dental COBRA premiums based
on the level of coverage in effect for the Employee (e.g., employee
only or family coverage) on the Date of Termination.
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(b)
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Termination by Company for Cause and
by Employee without Good Reason . If Employee’s employment is
terminated by Company for Cause or by Employee without Good Reason,
Company’s only obligation under this Agreement shall be
payment of any Accrued Obligations.
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(c)
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Termination due to Death or
Disability .
If Employee’s employment is terminated due to death or
Disability, Company shall pay Employee (or to Employee’s
estate or personal representative in the case of death), within
thirty (30) business days after the Date of Termination:
(i) any Accrued Obligations; plus (ii) a prorated Annual
Bonus based upon the target Annual Bonus opportunity in the year in
which the Date of Termination occurred (or the prior year if no
target Annual Bonus opportunity has yet been determined) multiplied
by the percentage of the calendar year completed before the Date of
Termination; plus (iii) the unpaid portion of the Annual Base
Salary for the remainder of the Employment Term.
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(d)
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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:
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(i)
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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 Company possessing more than 50% of
the total combined voting power of all outstanding securities of
Company;
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(ii)
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a
merger or consolidation in which Company is not the surviving
entity, except for a transaction in which the holders of the
outstanding voting securities of 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;
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(iii)
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a
reverse merger in which Company is the surviving entity but in
which securities possessing more than 50% of the total combined
voting power of all outstanding voting securities of Company are
transferred to or acquired by
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