SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS
SECOND 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
WILLIAM P. FOLEY, II (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 . This Agreement amends and restates, in its
entirety, the obligations of the parties under the Amended and
Restated Employment Agreement between the Company and the Employee,
dated as of July 2, 2008 (the “Prior Agreement”).
The purpose of this Agreement is to recognize 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 the event
the Effective Date does not occur, this Second 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 to remain 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 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 and responsibilities specifically assigned to the Employee
pursuant to Appendix A, the Employee will perform such other
duties, functions and responsibilities as are 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 shall continue for a period of two
(2) years ending on the second 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 before such extension would be effectuated.
Notwithstanding any termination of the Employment Term or the
Employee’s employment, the Employee and the Company agree
that Sections 8 through 10 shall remain in effect 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 $550,000
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:
|
|
(a)
|
|
the
standard Company benefits enjoyed by the Company’s other top
executives as a group;
|
|
|
|
|
|
|
|
(b)
|
|
medical and other insurance coverage
(for the Employee and any covered dependents) provided by the
Company to its other top executives as a group, which the Employee
has not elected to receive as of the date hereof because he
receives such insurance coverage from another employer;
|
|
|
|
|
|
|
|
(c)
|
|
eligibility to elect and purchase
supplemental disability insurance sufficient to provide two-thirds
of the Employee’s pre-disability Annual Base
Salary;
|
|
|
|
|
|
|
|
(d)
|
|
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 250% of the Employee’s Annual Base Salary, with a
maximum of up to 500% 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 15th 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 Employee unless the
Employee is employed by the Company, or an affiliate thereof, on
the Annual Bonus payment date;
|
|
|
|
|
|
|
|
(e)
|
|
participation in all
Company-sponsored incentive compensation plans, including a Synergy
Plan that is associated with the integration of Metavante
Technologies, Inc. pursuant to which the Employee shall be eligible
to receive a bonus in the amount of $7,000,000 upon the Company
achieving at least $260,000,000 in post-Effective Date annual
recurring cost savings payable at the same time and in the same
proportion as paid to all other participants in the Synergy Plan in
accordance with and subject to such terms and conditions
established by the Committee (the “Synergy
Bonus”);
|
|
|
(f)
|
|
on
the Effective Date, the Employee shall be granted a retention
equity award consisting of that number of restricted stock units in
respect of Company common stock determined by dividing $9,100,000
by the closing price per share of the Company’s common stock
on the Effective Date (the “Retention RSU Award”). The
Retention RSU Award shall fully vest and be settled on the date
that is six months from the Effective Date (provided that Employee
remains employed with the Company through the date that is six
months from the Effective Date), subject to earlier vesting and
settlement in accordance with Section 9 of this Agreement upon
the termination of the Employee’s employment for any reason
other than by the Employee without Good Reason (as defined below).
The Retention RSU Award shall be settled in shares of Company
common stock;
|
|
|
|
|
|
|
|
(g)
|
|
on
the Effective Date, the Employee shall be awarded a cash retention
award in an amount equal to $1,400,000 (the “Retention Cash
Award”), payable in a single lump sum coincident with the
Company’s payment under the Annual Bonus Plan (but in no
event later than March 15, 2010), subject to such terms and
conditions established by the Committee;
|
|
|
|
|
|
|
|
(h)
|
|
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; and
|
|
|
|
|
|
|
|
(i)
|
|
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.
|
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 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 Disability (as that term is defined
in Subsection 8(e)), Cause (as that term is defined in Subsection
8(d)), 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 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 (30th) 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. The Employee’s
termination for Cause shall be effective when and if a resolution
is duly adopted by an affirmative vote of at least three-fourths
(3/4) of the Board (less the Employee), stating that, in the good
faith opinion of the Board, the Employee is guilty of the conduct
described in the Notice of Termination and such conduct constitutes
Cause under this Agreement; provided , however , that
the Employee shall have been given reasonable opportunity
(A) to cure any act or omission that constitutes Cause if
capable of cure and (B), together with counsel,
|
|
|
|
|
during the thirty (30) day
period following the receipt by the Employee of the Notice of
Termination and prior to the adoption of the Board’s
resolution, to be heard 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:
|
|
|
(i)
|
|
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;
|
|
|
|
|
|
|
|
(ii)
|
|
a
material diminution in the Employee’s Annual Base Salary or
Annual Bonus Opportunity;
|
|
|
|
|
|
|
|
(iii)
|
|
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 Employee no longer serving as Executive Chairman of the Board
would constitute such a material adverse change) as of immediately
following the Effective Date; (B) a material adverse change in
the position to whom the Employee reports (including any
requirement that the Employee report to a corporate officer or
employee instead of reporting directly to the Board) or to the
Employee’s service relationship (or the conditions under
which the Employee performs his duties) as a result of such
reporting structure change, or a material diminution in the
authority, duties or responsibilities of the position to whom the
Employee reports; (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 ( e.g. , the Company has determined that a
relocation of more than thirty-five (35) miles would
constitute such a material change); or
|
|
|
|
|
|
|
|
(iv)
|
|
a
material breach by the Company of any of its obligations under this
Agreement.
|
|
|
|
|
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.
|
9.
Obligations of the Company Upon Termination .
|
|
(a)
|
|
Termination by the Company for a
Reason Other than Cause, Death or Disability and Termination by the
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:
|
|
|
(i)
|
|
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;
|
|
|
|
|
|
|
|
(ii)
|
|
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;
|
|
|
(iii)
|
|
the
Company shall pay the Employee, no later than the sixty-fifth
(65th) calendar day after the Date of Termination, a lump-sum
payment equal to the sum of (A) 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 highest Annual Bonus
paid to the Employee by the 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 and (y) if the Date of Termination occurs
(1) during the period from the Effective Date through the
first annual anniversary of the Effective Date, three (3);
(2) during the period from the day following the first annual
anniversary of the Effective Date through the second annual
anniversary of the Effective Date, two (2); and (3) following
the second annual anniversary of the Effective Date through the end
of the Employment Term (including extensions), one (1), and (B) to
the extent unpaid, the Retention Cash Award;
|
|
|
|
|
|
|
|
(iv)
|
|
all
stock options, restricted stock, performance shares and other
equity-based awards granted by the Company prior to the Effective
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”), including the Retention RSU
Award, in each case, that are outstanding
|
|
