THIS EMPLOYMENT
AGREEMENT (the “ Agreement ”) is entered into as
of March 31, 2009, by and among FIDELITY NATIONAL
INFORMATION SERVICES, INC. , a Georgia corporation (the “
Company ”) and MICHAEL D. HAYFORD (the “
Employee ”). In consideration of the mutual covenants
and agreements set forth herein, the parties agree as
follows:
1.
Purpose and Release . Subject to the occurrence of the
Effective Time (as defined in the Agreement and Plan of Merger by
and among the Company, Cars Holdings, LLC and Metavante
Technologies, Inc., a Wisconsin corporation (“
Metavante ”) (the “ Merger Agreement
”)), the purpose of this Agreement is to amend and restate
all prior agreements between the Company, Metavante and any of
their respective affiliates, and Employee relating to the subject
matter of this Agreement (including, without limitation,
(a) the Employment Agreement dated as of November 1, 2007
and amended as of November 1, 2008 by and between Metavante
(f/k/a Metavante Holding Company) and the Employee (the “
Prior Employment Agreement ”) and (b) the Change
of Control Agreement dated as of November 1, 2007 by and
between Metavante (f/k/a Metavante Holding Company) and the
Employee (the “ Prior COC Agreement ”))
(collectively, the “ Prior Agreements ”), to
assure the Company of the services of the Employee following the
Effective Time, and to provide a single, integrated document which
shall provide the basis for Employee’s continued employment
by the Company. Subject to the occurrence of the Effective Time and
in consideration of the execution of this Agreement and the
amendment and restatement 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 (other than rights under the
terms of a benefit plan or program of the Company or its Affiliates
(other than the Prior Employment Agreement and the Prior COC
Agreement) which shall be determined in accordance with the terms
of such plans and programs).
2.
Employment and Duties . Subject to the occurrence of the
Effective Time and subject to the terms and conditions of this
Agreement, the Company employs Employee to serve as Executive Vice
President and Chief Financial Officer of the Company. 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 either the Board of
Directors of the Company (the “ Board ”) or the
Chief Executive Officer of the Company. 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 Chief Executive Officer or Board,
other than personal, personal investment, charitable, or civic
activities or other matters that do not conflict with
Employee’s duties. The location of the Employee’s
principal place of employment will be in Jacksonville,
Florida.
3.
Term . Subject to the occurrence of the Effective Time, this
Agreement shall commence immediately following the Effective Time
and, unless terminated as set forth in Section 8, continue
through the third (3 rd )
anniversary of the Effective Time. 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 two hundred seventy (270) 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, the Company shall pay
Employee an annual base salary, before deducting all applicable
withholdings, at a rate of no less than $625,000 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
Employee’s express written consent) at the discretion of the
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 the Company or an affiliate of the Company may from time to
time make available to Employee, Employee shall be entitled to the
following during the Employment Term (and for retiree benefits
under Section 5(b) following 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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medical and other insurance coverage
(for Employee and any covered dependents) provided by the Company
to its other top executives as a group. In addition to the benefits
described in Section 9(a)(v), Employee shall be entitled to
access to retiree health coverage from the Company, if any, on the
same terms and conditions as if Employee had satisfied the minimum
age and service conditions for such coverage as of the Effective
Date, provided however, that Employee shall pay the entire premium
(including any administrative costs) for such coverage unless
Employee qualifies for a subsidy based on his actual age and actual
service with the Company, it being understood that the
Company’s obligation shall cease to apply in the event that
the Company no longer provides such coverage;
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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 the Company’s annual
incentive plan (“ Annual Bonus Plan ”) for each
calendar year, including 2009, included in the Employment Term,
with such opportunity to be earned based upon attainment of
performance objectives established by the 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
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Opportunity may be periodically
reviewed and increased (but not decreased without 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 determines otherwise, no Annual Bonus
shall be paid to Employee unless Employee is employed by the
Company, or an affiliate thereof, on the Annual Bonus payment
date;
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(e)
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participation in the Company’s
equity incentive plans;
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(f)
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on
the first business day following the Effective Date, a grant of
non-qualified stock options to acquire 750,000 shares of the
Company’s common stock with an exercise price per share equal
to the closing price per share of the Company’s common stock
on the first business day following the Effective Date and, except
as provided in Section 9(a)(iv), becoming vested as to
one-third the number of shares awarded on each of the first, second
and third anniversaries of the Effective Date, subject to continued
employment and the terms and conditions of the applicable plan
under which the grant is made, and such grant of non-qualified
stock options shall be evidenced by, and subject to the terms and
conditions of, an award agreement in substantially the same form as
the stock option agreement attached hereto as Exhibit A
; and
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(g)
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the
retention/relocation benefits (the “ Relocation
Benefits ”) specified in the letter agreement entered
concurrently with this Agreement (the “ Relocation Letter
Agreement ”).
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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 the Company’s standard policies, or as the
Board or Committee may approve. In addition, Employee shall be
entitled to such holidays consistent with the Company’s
standard policies or as the 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 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 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
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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 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, the “ 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. Notwithstanding the foregoing, in no event
shall the Date of Termination occur until 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.
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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 of
Employee’s employment by the 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 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. For the avoidance of doubt, the definition of
“Cause” as described in this Section 8(d) of this
Agreement shall apply to the Employee’s stock options,
restricted stock
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and
performance share and other equity-based awards attributable to
grants made prior to the Effective Time (collectively, the “
Prior Equity Awards ”).
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(e)
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Disability . For purposes of this Agreement, a
termination based upon “ Disability ” means a
termination of Employee’s employment by the Company based
upon 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.
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(f)
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Good Reason . For purposes of this Agreement
(and for the avoidance of doubt the definition of “Good
Reason” as described in this Section 8(f) of this Agreement
shall apply to the Employee’s Prior Equity Awards), a
termination for “ Good Reason ” means a
termination of Employee’s employment 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 in effect as of immediately
following the Effective Time;
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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
reporting to a person other than the Chief Executive Officer (or,
if that office is vacant, a more senior officer of the Company);
(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 to a location other
than Jacksonville, Florida (it being understood that a relocation
of more than thirty-five (35) miles (other than a relocation
to Jacksonville, Florida) shall 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,
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 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 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, Employee’s “separation from service”
(within the meaning of Code Section 409A) 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 the Company Upon Termination .
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(a)
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Termination by the Company for a
Reason Other than Cause, Death or Disability and Termination by
Employee for Good Reason . Subject to Sections 9(e) and 17,
if Employee’s employment is terminated by: (1) the
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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The
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 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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The
Company shall pay Employee six (6) months following the Date
of Termination, 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
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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 Employee, six (6) months following 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
the Company or its affiliates within the three (3) years
preceding the Date of Termination (including any such bonus paid
prior to the Effective Time by an affiliate of the Company) or, if
higher, the target Annual Bonus opportunity in the year in which
the Date of Termination occurs (the “Highest Annual
Bonus”);
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(iv)
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All
stock option, restricted stock and other equity-based incentive
awards granted by the Company (or granted by an affiliate of the
Company prior to the Effective Time and assumed by the Company)
that were outstanding but not vested as of the Date of Termination
shall, subject to Section 9(e), 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 the Employee’s Prior Equity Awards that are stock options
shall be exercisable for the lesser of (x) the remaining term
of such stock options and (y) five (5) years after the Date of
Termination; and
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(v)
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As
long as Employee pays the full monthly premiums for COBRA coverage,
the Company shall provide Employee and, as applicable,
Employee’s eligible dependents with continued medical and
dental coverage, on the same basis as provided to the
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, six (6) months following the
Date of Termination, the Company shall pay Employee a lump sum cash
payment equal to thirty-six (36) 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 the Company for Cause
and by Employee without Good Reason . Subject to Section 17, if
Employee’s employment is terminated by the Company for Cause
or by Employee without Good Reason, the 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 .
Subject to Sections 9(e) and 17, if Employee’s employment is
terminated due to death or Disability, the Company shall pay
Employee (or to Employee’s estate or personal representative
in the case of death): (i) any Accrued Obligations; plus
(ii) six (6) months following the Date of Termination, a
lump sum payment equal to the sum of (x) 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 (y) the unpaid portion of the Annual Base
Salary for the remainder of the then-applicable Employment Term. If
Employee’s employment is terminated due to death or
Disability, the Employee’s Prior Equity Awards that are stock
options and were vested but unexercised as of the Date of
Termination shall be exercisable for the lesser of (x) the
remaining term of such stock options and (y) five
(5) years after the Date of Termination.
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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 the Company
possessing more than 50% of the total combined voting power of all
outstanding securities of the Company;
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(
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