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 GEORGE SCANLON
(the “Employee”) and is effective upon the occurrence
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 terminate all prior agreements between the
Company, and any of its affiliates, and the Employee relating to
the subject matter of this Agreement, 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 rights the Employee may have to terminate Prior
Agreement, to protect the Company’s business interests
through the inclusion of restrictive covenants, 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 Agreement shall be void
ab initio and of no further 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 as Corporate Executive Vice President - Finance,
or in such other capacity as may be mutually agreed by the parties.
The Employee accepts such continued employment and agrees to
undertake and discharge the duties, functions and responsibilities
set forth in Appendix A attached hereto and such other duties
and responsibilities as may be prescribed from time to time by the
Chief Financial Officer (the “CFO”), the Chief
Executive Officer (the “CEO”) or the Board of Directors
of the Company (the “Board”). Except as expressly
provided in this Agreement, the Employee shall devote substantially
all business time, attention and effort to the performance of
duties hereunder, and shall not engage in any business, profession
or occupation, for compensation or otherwise without the express
written consent of the CFO, CEO or Board, other than personal,
personal investment, charitable, or civic activities or other
matters that do not conflict with the Employee’s
duties.
3.
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 8 (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 at least two hundred seventy
(270) days before such extension would be
effectuated.
4.
Salary . During the Employment Term, the Company shall pay
the Employee a base salary, before deducting all applicable
withholdings, at an annual rate of no less than $450,000 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 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, 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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equivalent or more beneficial
medical and other insurance coverage (for the Employee and any
covered dependents) provided by the Company to executives with the
same corporate title (e.g., Corporate Executive Vice
President);
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(b)
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supplemental disability insurance
sufficient to provide a benefit to the Employee equal to two-thirds
of the Employee’s pre-disability Annual Base Salary, provided
that such coverage is available in the market using traditional
standards of underwriting;
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(c)
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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 Board or Committee (“Annual Bonus”). The
Employee’s target Annual Bonus under the Annual Bonus Plan
shall be no less than 150% of the Employee’s then current
Annual Base Salary, with a maximum of up to 300% of the
Employee’s then current Annual Base Salary (collectively, the
target and maximum Annual Bonus are referred to as the
“Annual Bonus Opportunity”). The Employee’s
Annual Bonus Opportunity may be periodically reviewed and
increased, but may not be decreased without the Employee’s
express written consent. If owed pursuant to the terms of the
Annual Bonus Plan, 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 Committee 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;
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(d)
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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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(e)
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on
the Effective Date, the Employee shall be awarded a cash retention
bonus in an amount equal to $3,000,000 (the “Retention Cash
Award”), 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”;
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(f)
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eligibility to participate in the
Company’s equity incentive plans; and
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(g)
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all
other benefits and incentive opportunities customarily made
available to executives with the same corporate title.
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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 and holidays consistent with the Employee’s
position and in accordance with the Company’s standard
policies, or as the CFO, CEO, Board or 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
reasonable travel, lodging, entertainment, promotion and other
ordinary and necessary business expenses incurred during the
Employment Term 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 (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.
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(a)
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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 this Agreement.
For purposes of this Agreement, a “Notice of
Termination” shall mean a notice that indicates the
“Date of Termination” and, with respect to a
termination due to “Cause”, “Disability” or
“Good Reason”, 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.
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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 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 26 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.
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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 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 or moral
turpitude; (iv) material breach of this Agreement;
(v) material breach of the Company’s business policies,
accounting practices or standards of ethics; or (vi) 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 of the Employee’s employment based upon
“Disability” means a termination of the
Employee’s employment 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.
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(f)
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Good Reason . For purposes of this Agreement, a
termination of the Employee’s employment for “Good
Reason” means a termination of the Employee’s
employment by the Employee 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 adverse change in the Employee’s position or title,
or a material diminution in the Employee’s managerial
authority, duties or responsibilities or the conditions under which
such duties or responsibilities are performed (e.g., a material
reduction in the number or scope of department(s), functional
group(s) or personnel over which the Employee has managerial
authority), in each case, as of immediately following the Effective
Date;
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(ii)
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a
material adverse change in the position to whom the Employee
reports (e.g., CFO), or a material diminution in the managerial
authority, duties or responsibilities of the person in that
position, in each case, as of immediately following the Effective
Date;
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(iii)
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a
material change in the geographic location of the Employee’s
principal working location (currently, 601 Riverside Avenue,
Jacksonville, Florida), which the Company has determined to be a
relocation of more than thirty-five (35) miles;
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(iv)
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a
material diminution in the Employee’s Annual Base Salary or
Annual Bonus Opportunity; or
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(v)
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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 within ninety (90) days of
the initial existence of such event 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.
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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 the Employee’s
employment is terminated during the Employment Term 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
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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 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 the Employee for the year in which the Date of
Termination occurs, ignoring any requirement under the Annual Bonus
Plan that the Employee must be employed on the payment date (using
the Employee’s Annual Bonus Opportunity for the prior year if
no Annual Bonus Opportunity has been approved for the year in which
the Date of Termination occurs), 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 as soon as practicable, but not
later than the sixty-fifth (65th) day after the Date of
Termination, a lump-sum payment equal to 300% of the sum of:
(A) 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 (B) the highest Annual
Bonus paid to the Employee by the Company within the three
(3) years preceding termination of employment or, if higher,
the target Annual Bonus in the year in which the Date of
Termination occurs;
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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
Date (collectively, the “Pri
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