EXHIBIT 10.56
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE OF ALL CLAIMS
This Confidential Separation Agreement and General Release of All Claims
("Separation Agreement") is made by and between Fidelity National Information
Solutions, Inc. ("FNIS"), formerly dba Vista Information Solutions, Inc.
("Vista"), Fidelity National Financial, Inc. ("FNF") and Xxxxxx Xxxxxx
("Employee") with respect to the following facts:
A. Employee was employed by Vista as Chief Executive Officer pursuant to
an Executive Employment Agreement, dated January 1, 2001 ("Employment
Agreement"). A copy of the Employment Agreement is attached as Exhibit A.
B. Employee and Vista are parties to a Stock Option Agreement (the
"Option Agreement") granting Employee the right to purchase 280,000 shares of
Vista Common Stock (the "Option") subject to the vesting schedules and other
restrictions on exercise as set forth in the Option Agreement and Vista's 1999
Stock Option Plan (the "Stock Option Plan").
C. As a result of the acquisition of Vista by Fidelity National
Financial (the "Acquisition"), Employee's position was eliminated. Employee's
employment ceased effective August 1, 2001 ("Separation Date"). The parties
acknowledge that the Acquisition falls within the definition of "Change in
Control" set forth in section 6.4(c) of the Employment Agreement.
D. Pursuant to section 6.4(a) of the Employment Agreement, the parties
are entering into this Separation Agreement. By entering into this Separation
Agreement, the parties desire to settle all claims and issues that have, or
could have been raised, in relation to Employee's employment with Vista and
arising out of or in any way related to the acts, transactions or occurrences
between Employee and Vista to date, including, but not limited to, Employee's
employment with Vista or the termination of that employment, on the terms set
forth below.
THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed by and between the undersigned as follows:
1. Severance Package. FNIS agrees to provide Employee with the following
payments and benefits ("Severance Package") to which Employee is not otherwise
entitled. Employee acknowledges and agrees that this Severance Package
constitutes adequate legal consideration for the promises and representations
made by Employee in this Separation Agreement.
1.1 Severance Payment. FNIS agrees to pay Employee the equivalent
of twelve (12) months' base salary for a total of ($220,000), less all
appropriate federal and state income and employment taxes ("Severance Payment").
The Severance Payment will be made in equal installments in accordance with
FNIS' regular payroll schedule beginning the first payday following the
Effective Date as described in section 11 below. In the event of Employee's
death prior to the receipt of the Severance Payment in its entirety, any
remaining portion of the Severance Payment shall be paid to Employee's estate n
accordance with this section 1.1. FNIS also agrees to pay an incentive payment
in the amount of thirty thousand dollars and no/100, $30,000.00, less applicable
withholdings, per the terms and conditions of the Employment Agreement. This
payment will be made to Employee 8 days after execution of this Agreement.
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1.2 Continuation of Fringe Benefits.
(a) Health Benefits. FNIS agrees to continue all of
Employee's health benefits (including medical, dental, vision and section 125
plan coverage) for twelve (12) months, effective August 1, 2001, on the same
terms as when Employee was working, provided FNIS' insurance carrier or benefit
plans allow for such benefits continuation. In the event FNIS' insurance carrier
or benefit plans do not allow such coverage continuation, FNIS agrees to pay the
premiums required to continue Employee's group health care coverage for the
12-month period under the applicable provisions of the Consolidated Omnibus
Budget Reconciliation Action of 1985 ("COBRA"), provided that Employee elects to
continue and remains eligible for these benefits under COBRA, and does not
obtain health coverage through another employer during this period.
(b) Automobile Allowance. FNIS agrees to continue to pay
Employee an automobile allowance in the amount of $500 per month, less
applicable withholding and employment taxes for the 12-month period.
(c) Other Fringe Benefits. FNIS agrees to continue to
provide Employee with any other fringe benefits that Employee enjoys as of the
Separation Date for the 12-month period on the same terms as when Employee was
working.
1.3 Outplacement Services. FNIS agrees to provide Employee with
outplacement services through DrakeBeamMorin, not to exceed $15,000, following
the Separation Date.
1.4 Stock Options. FNIS agrees to accelerate the vesting of
Employee's Option such that the Option will be 100% vested on the Separation
Date. With the exception of the vesting schedule outlined herein, the Option
shall be subject to the terms and conditions of the Stock Option Plan and Option
Agreement.
2. General Release.
2.1 Employee unconditionally, irrevocably and absolutely releases
and discharges FNIS, and any parent and subsidiary corporations, divisions and
affiliated corporation, partnerships or other affiliated entities of FNIS, past
and present, as well as FNIS' employees, officers, directors, agents, successors
and assigns (collectively, "Released Parties"), from all claims related in any
way to the transactions or occurrences between them to date, to the fullest
extent permitted by laws, including, but not limited to, Employee's employment
with FNIS, the termination of Employee's employment, and all other less,
liabilities, claims, charges, demands and causes of action, known or unknown,
suspected or unsuspected, arising directly or indirectly out of or in any
connected with Employee's employment with FNIS. This release is intended to have
the broadest possible application and includes, but is not limited to, any tort,
contract, common law, constitutional or other statutory claims, including, but
not limited to alleged violations of the California Labor Code or the federal
Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964 and the
California Fair Employment and Housing Act, the Americans with Disabilities Act,
the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), and
all claims for attorneys' fees, costs and expenses.
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2.2 Employee acknowledges that Employee may discover facts of law
different from, or in addition to, the facts or law that Employee knows or
believes to be true with respect to the claims related in this Separation
Agreement and agrees, nonetheless, that this Separation Agreement and the
release contained in it shall be and remain effective in all respect
notwithstanding such different or additional facts or the discovery of them.
2.3 Employee declares and represents that Employee intends this
Separation Agreement to be complete and not subject to any claim of mistake, and
that the release herein expresses a full and complete release and, regardless of
the adequacy or inadequacy of the consideration, Employee intends to release
herein to be final and complete. Employee executes this release with the full
knowledge that this release covers all possible claims against the Released
Parties, to the fullest extent permitted by law.
2.4 Employee expressly waives Employee's right to recovery of any
type, including damages or reinstatement, in any administrative or court action,
whether state or federal, and whether brought by Employee or on Employee's
behalf, related in any was to the matters related herein.
3. California Civil Code Section 1542 Waiver. Employee expressly
acknowledges and agrees that all rights under Section 1542 of the California
Civil Code are expressly waived. That section provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
4. Representation Concerning Filing of Legal Actions. Employees
represent that, as of the date of this Separation Agreement, Employee has not
filed any lawsuits, charges, complaints, petitions, claims or other accusatory
pleadings against FNIS or any of the other Released Parties in any court or with
any governmental agency. Employee further agrees that, to the fullest extent
permitted by law, Employee will not prosecute, nor allow to be prosecuted on
Employee's behalf, in any administrative agency, whether state or federal, or in
any court, whether state or federal, any claim or demand of any type related to
the matters released above, it being the intention of the parties that with the
execution of this release, the Released Parties will be absolutely,
unconditionally and forever discharged of and from all obligations to or on
behalf of Employee related in any way to the matters discharged herein.
5. Consulting Services. Pursuant to section 6.2(b)(iii) of the
Employment Agreement, Employee agrees to make himself available during the
12-month period following the Separation Date, as needed, without any additional
compensation, to provide consulting services to FNIS. Employee agrees to be
available to answer business-related questions by phone or in person and to
travel on FNIS business, at FNIS' expense, as needed. The consulting arrangement
does not prevent Employee from seeking or fulfilling other employment, as long
as it does not violate any other provision of this Agreement. Employee
understands and agrees that as a consultant, he will not be an employee of FNIS
and will not be eligible for any FNIS benefits other than those specified above.
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Employee agrees to comply with all laws applicable to him in the performance of
his duties as a consultant. Employee agrees to provide all tools and
instrumentalities, if any, required to perform the services under this
Agreement, however, FNIS will allow Employee to retain his laptop, Palm Pilot,
cell phone, and other similar business items, to facilitate the efficient
rendering of Employee's services to FNIS as a consultant. Such business items
shall be used by Employee, if at all, at Employee's discretion. At the end of
the 12-month period, Employee will return these business items to FNIS.
6. 280G. Notwithstanding section 1 above, if it is determined that the
amounts and benefits payable to Employee under this Separation Agreement, when
considered together with any other amounts payable to Employee as a result of
the Change in Control (as defined in the Employment Agreement), cause such
payments to be treated as "excess parachute payments" within the meaning of
Section 280G of the Internal Revenue Code, FNIS shall reduce the amount payable
to Employee under Section 1 (to the least extent possible) to an amount that
will not subject Employee to the imposition of tax under Section 4999 of the
Internal Revenue Code.
7. Mutual Nondisparagement. All parties agree that neither will not make
any voluntary statements, written or oral, or cause or encourage other to make
any such statements that defame, disparage or in any way criticize the personal
and/or business reputations, practices or conduct of FNIS, Employee or any of
the other Released Parties.
8. Confidentiality and Return of FNIS Property.
8.1 Confidential Separation Information. Employee agrees that the
terms and conditions of this Separation Agreement, as well as the discussions
that led to the terms and conditions of this Separation Agreement (collectively
referred to as the "Confidential Separation Information") are intended to remain
confidential between Employee and FNIS. Employee further agrees that Employee
will not disclose the Confidential Separation Information to any other persons,
except that Employee may disclose such information to Employee's immediate
family members and to Employee's attorney(s) and accountant(s), if any, to the
extent needed for legal advice or income tax reporting purposes. When releasing
this information to any such person, Employee shall advise the person receiving
the information of its confidential nature. Neither Employee, nor anyone to whom
the Confidential Separation Information has been disclosed, will respond to, or
in any way participate in or contribute to, any public discussion, notice or
other publicity concerning the Confidential Separation Information. Without
limiting the generality of the foregoing, Employee specifically agrees that
neither Employee, Employee's immediate family, Employee's attorney nor
Employee's accountant, if any, shall disclose the Confidential Separation
Information to any current, former or prospective employee of FNIS. Nothing in
this Section will preclude Employee from disclosing information required in
response to a subpoena duly issued by a court of law or government agency having
jurisdiction or power to compel such disclosure, or from giving full, truthful
and cooperative answers in response to a duly issued subpoena.
8.2 Confidential or Proprietary Information. Employee also agrees
that Employee will not use, remove from FNIS' premises, make unauthorized copies
of or disclose and confidential or proprietary information of FNIS or any
affiliated or related entities, including but not limited to, their trade
secrets, copyrighted information, customer lists, any information encompassed in
any research and development, reports, work in progress, drawings, software,
computer files or models, designs, plans, proposals, marketing and sales
programs, financial projections, and all
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concepts or ideas, materials or information related to the business or sales of
FNIS and any affiliated or related entities that has not previously been
released to the public by an authorized representative of those companies.
8.3 Continuing Obligations. If Employee has signed a
confidentiality or proprietary rights agreement (or any other agreement
protecting the confidentiality of FNIS information), Employee understand that
certain terms and conditions of that agreement survive the termination of
Employee's employment, and as such, Employee agrees to abide by such surviving
provisions of the agreement. In addition, Employee agrees to continue to comply
with all surviving provisions of the Employment Agreement, including but not
limited to section 9 ("Nonsolicitation").
8.4 Return of Company Property. By signing this Separation
Agreement, Employee represents and warrants that Employee will have returned to
FNIS on or before the Separation Date, all Vista property, including all
confidential and proprietary information, as described in section 8.2 above, and
all materials and documents containing trade secrets and copyrighted materials,
including all copies and excerpts of the same.
9. Enforcement. If Employee breaches any of the terms in section 7 or 8
above or their subparts, FNIS will immediately cease providing the severance
payments described in section 1.1 above, to the extent those payments have not
yet been provided.
10. No Admissions. By entering into this Separation Agreement, the
Released Parties make no admission that they have engaged, or are not engaging,
in any unlawful conduct. The parties understand and acknowledge that this
Separation Agreement is not an admission of liability and shall not be used or
construed as such in any legal or administrative proceeding.
11. Older Workers' Benefit Protection Act. This Separation Agreement is
intended to satisfy the requirements of the Older Workers' Benefit Protection
Act, 29 U.S.C. Section 626(f). Accordingly, Employee acknowledges and agrees
that Employee has read and understand the terms of this Separation Agreement;
that this Separation Agreement advises Employee in writing that Employee may
consult with an attorney before executing this Separation Agreement, if desired;
that Employee has obtained and considered such legal counsel as Employee deems
necessary; that Employee has been given twenty-one days to consider whether or
not to enter into this Separation Agreement (although Employee may elect not to
use the full 21-day period at Employee's option); and that by signing this
Separation Agreement, Employee acknowledges that Employee does so freely,
knowingly, and voluntarily. The Separation Agreement shall not become effective
or enforceable until the eighth day after Employee signs the Separation
Agreement ("Effective Date"). In other words, the Employee may revoke acceptance
of this Separation Agreement within seven (7) days after signing it. The
Employee's revocation must be in writing and received by Xxxxxxx Xxxxx, by 5:00
p.m. Pacific Standard Time on the seventh day in order to be effective. The
payments and benefits described in section 1 and its subparts will become due
and payable after the Effective Date, provided the Separation Agreement has not
been revoked. This Separation Agreement does not waive or release any rights or
claims that Employee may have under the ADEA that arise after the execution of
this Separation Agreement.
12. Severability. In the event any provision of this Separation
Agreement shall be found unenforceable by a court of competent jurisdiction, the
provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that FNIS
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shall receive the benefits contemplated herein to the fullest extent permitted
by law. If a deemed modification is not satisfactory in the judgment of such
court, the unenforceable provision shall be deemed deleted, and the validity and
enforceability of the remaining provisions shall not be affected thereby.
13. Applicable Law. The validity, interpretation and performance of this
Separation Agreement shall be construed and interpreted according to the laws of
the United States of America of California. Each of the parties irrevocably
consents to the exclusive jurisdiction of the federal and state courts located
in California, as applicable, for any matter arising out of or relating to this
Separation Agreement.
14. Binding on Successors. The parties agree that this Separation
Agreement shall be binding on, and inure to the benefit of, their successors and
assigns.
15. Full Defense. This Separation Agreement may be pled as a full and
complete defense to, and may be used as a basis for an injunction against, any
action, suit or other proceeding that may be prosecuted, instituted or attempted
by Employee in breach hereof. Employee agrees that in the event an action or
proceeding is instituted by the Released Parties in order to enforce the terms
or provisions of this Separation Agreement, the Released Parties shall be
entitled to an award of reasonable costs and attorneys; fees incurred in
connection with enforcing this Separation Agreement.
16. Good Faith. The parties agree to do all things necessary and
appropriate, including executing further documents, to carry out and effectuate
the terms and purposes of this Separation Agreement.
17. Entire Agreement; Modification. This Separation Agreement, including
the definitions and surviving provisions of the Employment Agreement (Exhibit
A), the Stock Option Plan, the Option Agreement and any confidentiality or
proprietary rights agreement signed by Employee, is intended to be the entire
agreement between the parties and supersedes and cancels any and all other and
prior agreements, written or oral, between the parties regarding this subject
matter. It is agreed that there are no collateral agreements or representations,
written or oral, regarding the terms and conditions of Employee's separation of
employment with FNIS and settlement of all claims between the parties, other
than those set forth in this Separation Agreement. This Separation Agreement may
be amended only by a written instrument executed by all parties hereto.
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THE PARTIES TO THIS SEPARATION AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND
FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE
PARTIES HAVE EXECUTED THIS SEPARATION AGREEMENT ON THE DATES SHOWN BELOW.
Employee
Dated: August 14, 2001 By: /s/ XXXXXX XXXXXX
----------------- --------------------------------------
Xxxxxx Xxxxxx
Fidelity National Information
Solutions, Inc.
Dated: August 14, 2001 By: /s/ XXXX XXXXXXX
----------------- --------------------------------------
Xxxx Xxxxxxx
Senior Vice President Finance and
Administrative and Chief
Financial Officer
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