AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “ Agreement
”) is entered into as of September 30, 2009, by and
between FIDELITY NATIONAL INFORMATION SERVICES, INC., a
Georgia corporation (the “ Company ”), and
LEE A KENNEDY (the “ Employee ”) and is
effective as of the Effective Date (as defined in the Agreement and
Plan of Merger, dated as of March 31, 2009, by and among the
Company, Cars Holdings, LLC and Metavante Technologies, Inc.). In
consideration of the mutual covenants and agreements set forth
herein, the parties agree as follows:
1.
Purpose and Release . This Agreement amends and restates, in
its entirety, the obligations of the parties under the Employment
Agreement between the Company and the Employee, dated as of
May 1, 2008 (the “ Prior Agreement ”). The
purpose of this Agreement is to recognize the Employee’s
significant contributions to the overall financial performance and
success of the Company, to acknowledge the importance of the
Employee’s continued services to the Company’s future
success, to assure the Company of the services of the Employee
following the Effective Date notwithstanding any right the Employee
may have to terminate the Prior Agreement, and to provide a single,
integrated document which shall provide the basis for the
Employee’s continued employment by the 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, including the Prior Agreement. In the event
the Effective Date does not occur, this Amended and Restated
Employment Agreement shall be void ab initio and of no
further force and effect, and the Employee’s Prior Agreement
shall continue in full force and effect.
2.
Employment and Duties . Subject to the terms and conditions
of this Agreement, the Company agrees to continue to employ the
Employee to serve in an executive capacity as Executive Vice
Chairman. The Employee accepts such continued employment and agrees
to undertake and discharge the duties, functions and
responsibilities set forth in Appendix A attached hereto. In
addition to the duties, functions and responsibilities specifically
assigned to the Employee pursuant to Appendix A, the Employee
will perform such other duties, functions and responsibilities as
may be 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.
3.
Term . The term of this Agreement shall commence on the
Effective Date and, unless terminated as set forth in
Section 8, shall continue for a period of two (2) years
ending on the second anniversary of the Effective Date or, if
later, through the last day of any extension made pursuant to the
next sentence (the initial period and any extensions being
collectively referred to as the “ Employment Term
”). This Agreement shall be extended automatically for one
additional one (1) year on the first anniversary of the
Effective Date and for an additional year each anniversary
thereafter unless either party gives written notice to the other
not to extend the Employment Term before such extension would be
effectuated. Notwithstanding any termination of this Agreement or
the Employee’s employment, Sections 8 through 10 shall
remain in effect unless and until all parties’ obligations
and benefits are satisfied thereunder.
4.
Salary . During the Employment Term, the Company shall pay
the Employee a base salary, at an annual rate, before deducting all
applicable withholdings, of no less than $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 (but not decreased without the
Employee’s express written consent) at the discretion of the
Board or 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 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 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:
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(a)
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the
standard Company benefits enjoyed by the Company’s other top
executives as a group;
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(b)
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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 or expenses at such clubs;
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(c)
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medical and other insurance coverage
(for the Employee and any covered dependents) provided by the
Company to its other top executives as a group;
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(d)
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supplemental disability insurance
sufficient to provide two-thirds of the Employee’s
pre-disability Annual Base Salary;
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(e)
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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 target Annual Bonus under
the Annual Bonus Plan shall be no less than 200% of the
Employee’s Annual Base Salary, with a maximum of up to 400%
of the Employee’s Annual Base Salary (collectively, the
target and maximum are referred to as the “ Annual Bonus
Opportunity ”). The Employee’s Annual Bonus
Opportunity 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 15 th first following the calendar year
to which the Annual Bonus relates. Unless provided otherwise herein
or the Board or the Committee determines otherwise, no Annual Bonus
shall be paid to the
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Employee unless
the Employee is employed by the Company, or an affiliate thereof,
on the Annual Bonus payment date;
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(f)
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on
the Effective Date, any award of restricted stock granted to the
Employee prior to the Effective Date shall vest and become free of
any applicable forfeiture and transfer restrictions as of the
Effective Date;
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(g)
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on
the Effective Date, the Employee shall be awarded a cash retention
bonus in an amount equal to $10,468,302 (the “Retention Cash
Award”), payable in a single lump sum pursuant to the
Employee’s Prior Agreement as an inducement for Employee to
enter into this Agreement and continue his employment relationship
with the Company; provided that, for the avoidance of doubt,
the Retention Cash Award shall not be taken into account in
computing any benefits under any plan, program or arrangement of
the Company or its affiliates and shall not be considered an
“Annual Bonus”; and
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(h)
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participation in the Company’s
equity incentive plans and all other benefits and incentive
opportunities customarily made available to the Company’s
other top executives.
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6.
Vacation . For and during each calendar year within the
Employment Term, the Employee shall be entitled to reasonable paid
vacation periods consistent with the Employee’s position and
in accordance with the Company’s standard policies, or as the
Board or the Committee 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.
7.
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.
8.
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 8(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 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 the Company shall
specify
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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.
(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 thirtieth (30 th )
day following the date the Notice of Termination is given) or the
date of the Employee’s death. Notwithstanding the foregoing,
in no event shall the Date of Termination occur until the Employee
experiences a “separation from service” within the
meaning of Code Section 409A (as defined in Section 28 of
the Agreement), and notwithstanding anything contained herein to
the contrary, the date on which such separation from service takes
place shall be the “Date of Termination,” and all
references herein to a “termination of employment” (or
words of similar meaning) shall mean a “separation from
service” within the meaning of Code
Section 409A.
(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, a termination of the
Employee’s employment for “ Cause ” means
a termination of the Employee’s employment by the Company
based upon 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) failure to materially cooperate with or impeding an
investigation authorized by the Board.
(e)
Disability . For purposes of this Agreement, a termination
based upon “ Disability ” means a termination by
the Company based upon the Employee’s entitlement 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; provided , however , that if the
Employee is not a participant in the Company’s long-term
disability plan or policy on the Date of Termination, he shall
still be considered terminated based upon Disability if he would
have been entitled to benefits under the Company’s long-term
disability plan or policy had he been a participant on his Date of
Termination.
(f)
Good Reason . For purposes of this Agreement, a termination
for “ Good Reason ” means a termination by the
Employee during the Employment Term based upon the occurrence
(without the Employee’s express written consent) of any of
the following:
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(i)
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a
material diminution in the Employee’s position or title, or
the assignment of duties to the Employee that are materially
inconsistent with the Employee’s position or title as set
forth in this Agreement;
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(ii)
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a
material diminution in the 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 the Employee’s status, authority or responsibility (e.g.
the Company has determined that a change in the department or
functional group over which the Employee has managerial authority
would constitute such a material adverse change) as of immediately
following the Effective Date; (B) a requirement that the
Employee report to a corporate officer or the Employee instead of
reporting directly to the Board; (C) a material diminution in
the budget over which the Employee has managing authority as of
immediately following the Effective Date; or (D) a material
change in the geographic location of the 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 the Company of any of its obligations under this
Agreement.
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Notwithstanding
the foregoing, the Employee being placed on a paid leave for up to
sixty (60) days pending a 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: (1) the Employee
gives Notice of Termination to the 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) the Company fails to cure the condition or event
constituting Good Reason within thirty (30) days following
receipt of the Employee’s Notice of Termination (the “
Cure Period ”). In the event that the Company fails to
remedy the condition constituting Good Reason during the applicable
Cure Period, the Employee’s Date of Termination must occur,
if at all, within one-hundred fifty (150) days following such
Cure Period in order for such termination as a result of such
condition to constitute a termination for Good Reason.
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9.
Obligations of Company Upon Termination .
(a)
Termination by Company for a Reason Other than Cause, Death or
Disability and Termination by Employee for Good Reason . If the
Employee’s employment is terminated by: (1) the Company for
any reason other than Cause, Death or Disability; or (2) the
Employee for Good Reason:
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(i)
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the
Company shall pay the 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 reasonable time
following submission of all applicable documentation, any expense
reimbursement payments owed to the 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
calendar year prior to the year in which the Date of Termination
occurs;
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(ii)
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the
Company shall pay the Employee no later than March 15th 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 the 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 the 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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the
Company shall pay the Employee, within sixty-five (65) days
after the Date of Termination, a lump-sum payment equal to the sum
of (A) the amount equal to the product of (x) the sum of
(1) 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 (2) the Employee’s
target Annual Bonus Opportunity in the year in which the Date of
Termination occurs, and (y) a fraction, the numerator of which
is equal to the number of days remaining in the then-current
Employment Term from and after the Date of Termination and the
denominator of which is equal to 365, and (B) to the extent
unpaid, the Retention Cash Award;
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(iv)
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all
stock options, restricted stock, performance shares and other
equity-based awards granted by the Company prior to the
Effective
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Date
(collectively, the “ Prior Equity Awards ”) and
all stock options, restricted stock and other equity-based
incentive awards granted by the Company on or following the
Effective Date (the “ New Equity Awards ”), in
each case, that are outstanding but not vested as of the Date of
Termination shall become immediately vested and/or paid or settled,
as the case may be; provided, however , that notwithstanding
the foregoing, any such Prior Equity Awards or New Equity Awards
that constitute a non-qualified deferred compensation arrangement
within the meaning of Code Section 409A shall be paid or
settled on the earliest date coincident with or following the Date
of Termination that does not result in a violation of or penalties
under Code Section 409A; and
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(v)
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the
Company shall provide the Employee with certain continued welfare
benefits as follows:
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(a)
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Any
life insurance coverage provided by the Company shall terminate at
the same time as life insurance coverage would normally terminate
for any ot
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