EXHIBIT 10.69
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of
July 9, 2002, (the "Effective Date), by and between FIDELITY NATIONAL
INFORMATION SOLUTIONS, INC., a Delaware corporation (the "Company"), and XXXXXX
XXXXXX (the "Employee"). In consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. Employment and Duties. Subject to the terms and conditions of this
Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as President and Chief Operating Officer, and the Employee
accepts such employment and agrees to perform such reasonable responsibilities
and duties commensurate with the aforesaid positions as directed by the
Company's Board of Directors and Chief Executive Officer, or as set forth in the
Articles of Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of three (3) years ending July 8, 2005, subject
to prior termination as set forth in Section 7, below (the "Term"). The Term may
be extended at any time upon mutual written agreement of the parties.
3. Salary. During the Term, the Company shall pay the Employee a minimum
base annual salary, before deducting all applicable withholdings, of $450,000
per year, payable at the times and in the manner dictated by the Company's
standard payroll policies. Such minimum base annual salary may be periodically
reviewed and increased at the discretion of the Board of Directors to reflect,
among other matters, cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any executive
bonus, pension, deferred compensation and stock option plans which the Company
may from time to time make available to the employee upon mutual agreement, the
Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the Company's other top
executives.
(b) 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 Employee 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
and expenses at such club.
(c) Provision by the Company during the Term and any extensions
thereof to the Employee and his dependents of medical and other
insurance coverage under the Company's Executive Medical Plan.
(d) Provision by the Company of supplemental disability insurance
sufficient to provide two-thirds of the Employee's pre-disability
minimum base annual salary.
(e) An annual bonus to be paid annually at an amount determined at the
discretion of the Chief Executive Officer of the Company and the
Compensation Committee of the Board of Directors of the Company. The
annual bonus payable after and with respect to the first year of
employment shall be an amount not less than $200,000.
(f) A grant under the Company's Stock Option Plan of options to
purchase 450,000 shares of the Company's Common Stock. The exercise
price for such options shall be the closing price as of the Effective
Date as reported by the Wall Street Journal. Such options shall vest
as follows:
(i) 90,000 shares on the Effective Date;
(ii) 120,000 shares on the first anniversary of the Effective
Date;
(iii) 120,000 shares on the second anniversary of the Effective
Date; and,
(iv) 120,000 shares on the third anniversary of the Effective
Date.
(g) The Company shall pay Employee's reasonable relocation expenses,
including closing costs related to the sale of Employee's residence.
In addition, the Company shall provide a loan to Employee to assist
Employee in raising a down payment for a replacement residence, the
terms of which shall be negotiated by the Chief Executive Officer and
Employee.
The Company shall deduct from all compensation payable under this
Agreement to the Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of the Term and any extensions
thereof, the Employee shall be entitled to reasonable paid vacation periods
consistent with his position with the Company. In addition, the Employee shall
be entitled to such holidays consistent with the Company's standard policies or
as the Company's Board of Directors may approve.
6. 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.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
annual salary due him through the date of termination. Cause shall be limited to
(i) the failure to perform duties consistent with a commercially reasonable
standard of care; (ii) the willful neglect of duties; (iii) criminal or other
illegal activities involving dishonesty; or (iv) a material breach of this
Agreement.
(b) Without Cause. Either party may terminate this Agreement
immediately without cause by giving written notice to the other. If the Company
terminates under this Section 7(b) on or before six months from the Effective
Date, it shall only be obligated to pay Employee the portion of the minimum base
annual salary due him through the date of termination. If the Company terminates
under this Section 7(b) after six months from the Effective Date, then it shall
be obligated (i) to pay to the Employee his minimum base annual salary in effect
as of the date of termination; (ii) to pay Employee the amount of Bonus the
Employee would have earned if employed on the next anniversary of the Effective
Date; (iii) to accelerate the vesting of options granted under Paragraph 4(f)
for the number of shares which would have vested on the next anniversary of the
Effective Date but for termination under this Paragraph 7(b); and (iv) to
maintain in full force and effect for the continued benefit of the Employee for
one year all employee benefit plans and programs in which the Employee was
entitled to participate immediately prior to the date of termination, provided
that the Employee's continued participation is possible under the general terms
and provisions of such plans and programs. In the event that the Employee's
participation in any such plan or program is prohibited, the Company shall, at
its expense, arrange to provide the Employee with benefits substantially similar
to those which the Employee would otherwise have been entitled to receive under
such plans and programs for which his continued participation is prohibited and
to make such arrangements that ensures that Employee's coverage in any such
plans and programs is continuous. If the Employee terminates under this Section
7(b), then the Company shall only be obligated to pay the Employee the portion
of the minimum annual base salary due him through the date of termination. Any
payment made under this Section 7(b) shall be made in a lump sum on or before
the fifth day following the date of termination, or as otherwise directed by the
Employee.
(c) Disability. If the Employee fails to perform his duties
hereunder on account of illness or other incapacity for a period of six
consecutive months, then the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by paying
the Employee the portion of the minimum annual base salary due him through the
date of termination. Such payment shall be made in a lump sum on or before the
fifth day following the date of termination, or as otherwise directed by the
Employee.
(d) Death. If the Employee dies during the Term, then this
Agreement shall terminate immediately and Employee shall be entitled to (i) that
portion of the minimum annual base salary due him through the date of death
payable in a lump sum on or before the fifth day following the date of death or
as otherwise directed by the Employee's executor or personal representative and
(ii) the amount of bonus the Employee would have earned if employed on the next
anniversary of the Effective Date but for his death.
(e) Termination by Employee Without Good Reason. Employee may
terminate his employment hereunder immediately, with or without Good Reason, as
defined in Section 8(a). If the Employee terminates without Good Reason under
this Section 7(d), then the Company shall only be obligated to pay the Employee
the portion of the minimum annual base salary due him through the date of
termination.
(f) Effect of Termination. Termination for any reason or for no
reason shall not constitute a waiver of the Company's rights under this
Agreement nor a release of the Employee from any obligation hereunder except his
obligation to perform his day-to-day duties as an employee.
8. Severance Payment.
(a) The Employee may terminate his employment hereunder for "Good
Reason," which for purposes of this Agreement shall mean a
"change in control of the Company." A "change in control of the
Company," for purposes of this Agreement, shall be deemed to
have occurred if (i) there shall be consummated (x) any
consolidation or merger of the Company other than a
consolidation or merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger own
more than 50% of the voting securities of the surviving
corporation immediately after the merger, or (y) any sale, lease
exchange or other transfer (in one transaction or a series of
related transactions) of all, of substantially all, of the
assets of the Company, or (ii) the stockholders of the Company
approve any plan or proposal for the liquidation or dissolution
of the Company, or (iii) any "person" (such as that term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 (the "Exchange Act")), other than the Company or any
"person" who, on the date hereof, is a director or officer of
the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company
representing 30% or more of the combined voting power of the
Company's then outstanding securities, or (iv) during any period
of two (2) consecutive years during the Term or any extensions
thereof, individuals, who, at the beginning of such period,
constitute the Board of Directors, cease for any reason to
constitute at least a majority thereof, unless the election of
each director who was not a director at the beginning of such
period has been approved in advance by directors
representing at least two-thirds of the directors then in office
who were directors at the beginning of the period.
(b) If the Employee terminates his employment for Good Reason, or,
if after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement
or pursuant to Section 7(b), then:
(i) The Company shall pay the Employee his minimum base
annual salary due him through the date of termination.
(ii) In lieu of any further salary and bonus payments or
other payments due to the Employee for periods
subsequent to the date of termination, the Company shall
pay, as severance to the Employee, an amount equal to
the product of (A) the Employee's minimum base annual
salary in effect as of the date of termination,
multiplied by (B) the number of years (including partial
years) remaining in the Term or the number 2 (two),
whichever is greater.
(iii) All options granted to the Employee which had not vested
as of the date of termination hereunder shall vest
immediately; and
(iv) The Company shall maintain in full force and effect, for
the continued benefit of the Employee for the number of
years (including partial years) remaining in the Term,
all employee benefit plans and programs in which the
Employee was entitled to participate immediately prior
to the date of termination, provided that the Employee's
continued participation is possible under the general
terms and provisions of such plans and programs. In the
event that the Employee's participation in any such plan
or program is prohibited, the Company shall, at its
expense, arrange to provide the Employee with benefits
substantially similar to those which the Employee would
otherwise have been entitled to receive under such plans
and programs from which his continued participation is
prohibited.
(c) For purposes of this Section 8 and Section 7 hereof, the
Employee shall not be required to mitigate the amount of any
payment provided for in Sections 7 and 8 by seeking other
employment or otherwise, nor shall any compensation or other
payments received by the Employee after the date of termination
reduce any payments due under such Sections.
9. Indemnification for Taxes. The Company shall indemnify Employee for
any and all taxes, penalties, additions to tax and interest on tax deficiencies
of any kind
(collectively, "Taxes") with respect to any and all payments and benefits
provided by this Agreement or other agreements with Employee which are subject
(if at all) to the excise tax ("Excise") pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended. This indemnification shall extend to
any and all Taxes with respect to any and all reimbursements hereunder such
that, on a net-after-tax basis, Employee is in the same position that Employee
would have been in if no payments made by Company to Employee had been subject
to the Excise Tax (and, therefore, no indemnification payments hereunder had
been necessary).
10. Non-Delegation of Employee's Rights. The obligations, rights and
benefits of the Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
11. Confidential Information. The Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence and he further acknowledges that he will have access to and learn
substantial information about the Company and its operations that is
confidential or not generally known in the industry including, without
limitation, information that relates to purchasing, sales, customers, marketing,
and the Company's financial position and financing arrangements. The Employee
agrees that all such information is proprietary or confidential, or constitutes
trade secrets and is the sole property of the Company. The Employee will keep
confidential, and will not reproduce, copy or disclose to any other person or
firm, any such information or any documents or information relating to the
Company's methods, processes, customers, accounts, analyses, systems, charts,
programs, procedures, correspondence or records, or any other documents used or
owned by the Company, nor will the Employee advise, discuss with or in any way
assist any other person, firm or entity in obtaining or learning about any of
the items described in this Section 9. Accordingly, the Employee agrees that
during the Term and at all times thereafter he will not disclose, or permit or
encourage anyone else to disclose, any such information, nor will he utilize any
such information, either alone or with others, outside the scope of his duties
and responsibilities with the Company.
12. Non-Competition During Employment Term. The Employee agrees that,
during the term and any extensions thereof, he will devote substantially all his
business time and effort, and give undivided loyalty, to the Company. He will
not engage in any way whatsoever, directly or indirectly, in any business that
is competitive with the Company or its affiliates, nor solicit, or in any other
manner work for or assist any business which is competitive with the Company or
its affiliates. In addition, during the Term and any extensions thereof, the
Employee will undertake no planning for or organization of any business activity
competitive with the work he performs as an employee of the Company, and the
Employee will not combine or conspire with any other employee of the Company or
any other person for the purpose of organizing any such competitive business
activity.
13. Non-Competition After Employment Term. The parties acknowledge that
as an executive officer of the Company the Employee will acquire substantial
knowledge and information concerning the business of the Company as a result of
his employment. The parties further acknowledge that the scope of business in
which the Company is engaged as of the Effective Date is national and very
competitive and one in which few companies can successfully compete. Competition
by an executive officer such as the Employee in that business after this
Agreement is terminated would severely injure the Company. Accordingly, for a
period of one year after this Agreement is terminated or the Employee leaves the
employment of the Company for any reason whatsoever, except as otherwise stated
herein below, the Employee agrees (i) not to become an employee, consultant,
advisor, principal, partner or substantial shareholder of any firm or business
(except as the owner of less than 5% of the shares of a publicly held
corporation) that in any way competes with the Company in any of its
presently-existing or then-existing products and markets; and (ii) not to
solicit any person or business that was at the time of such termination and
remains a customer or prospective customer, or an employee of the Company.
Notwithstanding any of the foregoing provisions to the contrary, the Employee
shall not be subject to the restrictions set forth in this Section 11 under the
following circumstances:
(a) If the Employee's employment with the Company is terminated by
the Company without cause; or
(b) If the Employee's employment with the Company is terminated a a
result of the Company's unwillingness to extend the Term of this Agreement.
(c) If the Employee terminates employment with the Company for Good
Reason as defined in Section 8(a).
14. Return of Company Documents. Upon termination of this Agreement,
Employee shall return immediately to the Company all records and documents of or
pertaining to the Company and shall not make or retain any copy or extract of
any such record or document.
15. Improvements and Inventions. Any and all improvements or inventions,
which the Employee may make or participate in during the period of his
employment, shall be the sole and exclusive property of the Company. The
Employee will, whenever requested by the Company, execute and deliver any and
all documents which the Company shall deem appropriate in order to apply for and
obtain patents for improvements or inventions or in order to assign and convey
to the Company the sole and exclusive right, title and interest in and to such
improvements, inventions, patents or applications.
16. Actions. The parties agree and acknowledge that the rights conveyed
by this Agreement are of a unique and special nature and that the Company will
not have an adequate remedy at law in the event of a failure by the Employee to
abide by its terms and conditions nor will money damages adequately compensate
for such injury. It is,
therefore, agreed between the parties that, in the event of a breach by the
Employee of any of his obligations contained in this Agreement, the Company
shall have the right, among other rights, to damages sustained thereby and to
obtain an injunction or decree of specific performance from any court of
competent jurisdiction to restrain or compel the Employee to perform as agreed
herein. The Employee agrees that this Section 14 shall survive the termination
of his employment and he shall be bound by its terms at all times subsequent to
the termination of his employment for so long a period as Company continues to
conduct the same business or businesses as conducted during the Term or any
extensions thereof. Nothing herein contained shall in any way limit or exclude
any other right granted by law or equity to the Company.
17. Amendment. This Agreement contains, and its terms constitute, the
entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
18. Governing Law. California law shall govern the construction and
enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be adjudicated in courts located in
California. This Agreement supercedes and replaces any prior agreements or
understandings between the parties with respect to the subject matter hereof.
19. Attorneys' Fees. If any party finds it necessary to employ legal
counsel or to bring an action at law or other proceedings against the other
party to enforce any of the terms hereof, the party prevailing in any such
action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs, all as determined by the court and not a
jury.
20. Severability. If any section, subsection or provision hereof is
found for any reason whatsoever, to be invalid or inoperative, that section,
subsection or provision shall be deemed severable and shall not affect the force
and validity of any other provision of this Agreement. If any covenant herein is
determined by a court to be overly broad thereby making the covenant
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of the Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants in this Agreement.
21. Notices. Any notice, request, or instruction to be given hereunder
shall be in writing and shall be deemed given when personally delivered or three
(3) days after being sent by United States Certified Mail, postage prepaid, with
Return Receipt Requested, to the parties at their respective addresses set forth
below:
To the Company: Fidelity National Information Solutions, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
(000) 000-0000
Fax: (000) 000-0000
with a copy to:
Fidelity National Information Solutions, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
(000) 000-0000
Fax: (000) 000-0000
To the Employee: Xxxxxx Xxxxxx
0000 Xxxx Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
22. Waiver of Breach. The Waiver by any party of any provisions of this
Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
23. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement to be
effective as of the date first set forth above.
FIDELITY NATIONAL INFORMATION SOLUTIONS,
INC.
By:
---------------------------------------
Its:
---------------------------------------
EMPLOYEE
--------------------------------------------
XXXXXX XXXXXX
AMENDMENT TO EMPLOYMENT AGREEMENT DATED JULY 9, 2002
EFFECTIVE JANUARY 21, 2003
4. Other Compensation and Fringe Benefits
e) An annual bonus to be paid annually at an amount determined at the
discretion of the Chief Executive Officer of the Company and the
Compensation Committee of the Board of Directors of the Company. The
annual bonus payable shall be an amount not less than $200,000.
FIDELITY NATIONAL INFORMATION
SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Its: CEO
EMPLOYEE:
/s/ Xxxxxx Xxxxxx
---------------------------------------
XXXXXX XXXXXX
