EX-10.2 EMPLOYMENT AGREEMENT






Exhibit 10.2




EMPLOYMENT AGREEMENT




     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 (3rd) 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):




	 	(a)	 	the standard Company benefits enjoyed by the Company’s other
top executives as a group;
	 
	 	(b)	 	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;
	 
	 	(c)	 	supplemental disability insurance sufficient to provide
two-thirds of 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,
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





-2-









 











	 	 	 	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 15th 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;
	 
	 	(e)	 	participation in the Company’s equity incentive plans;
	 
	 	(f)	 	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
	 
	 	(g)	 	the retention/relocation benefits (the “Relocation
Benefits”) specified in the letter agreement entered concurrently with this
Agreement (the “Relocation Letter Agreement”).





     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.




	 	(a)	 	Notice of Termination. Any purported termination of
Employee’s employment (other than by reason of death) shall be communicated by





-3-









 











	 	 	 	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.
	 
	 	(b)	 	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
(30th) 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.
	 
	 	(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
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





-4-









 








	 	 	 	and performance share and other equity-based awards attributable to grants made
prior to the Effective Time (collectively, the “Prior Equity
Awards”).
	 
	 	(e)	 	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.
	 
	 	(f)	 	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:






	 	(i)	 	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;
	 
	 	(ii)	 	a material diminution in 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 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
	 
	 	(iv)	 	a material breach by the Company of any of its
obligations under this Agreement.





-5-









 











	 	 	 	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.





     9. Obligations of the Company Upon Termination.




	 	(a)	 	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:






	 	(i)	 	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;
	 
	 	(ii)	 	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





-6-









 











	 	 	 	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 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”);
	 
	 	(iv)	 	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
	 
	 	(v)	 	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.






	 	(b)	 	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.





-7-









 











	 	(c)	 	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.
	 
	 	(d)	 	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:






	 	(i)	 	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;
	 
	 	(ii)	 	a merger or consolidation in which the Company
is not the surviving entity, except for a transaction in which the
holders of the outstanding voting securities of the Company immediately
prior to such merger or consolidation hold, in the aggregate,
securities possessing more than 50% of the total combined voting power
of all outstanding voting securities of the surviving entity
immediately after such merger or consolidation;
	 
	 	(iii)	 	a reverse merger in which the Company is the
surviving entity but in which securities possessing more than 50% of
the total combined voting power of all outstanding voting securities of
the Company are transferred to or acquired by a person or persons
different from the persons holding those securities immediately prior
to such merger;
	 
	 	(iv)	 	during any period of two (2) consecutive years
during the Employment Term or any extensions thereof, individuals, who,
at the beginning of such period, constitute the Board, cease for any





-8-









 











	 	 	 	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;
	 
	 	(v)	 	the sale, transfer or other disposition (in one
transaction or a series of related transactions) of assets of the
Company that have a total fair market value equal to or more than
one-third of the total fair market value of all of the assets of the
Company immediately prior to such sale, transfer or other disposition,
other than a sale, transfer or other disposition to an entity (x) which
immediately following such sale, transfer or other disposition owns,
directly or indirectly, at least 50% of the Company’s outstanding
voting securities or (y) 50% or more of whose outstanding voting
securities is immediately following such sale, transfer or other
disposition owned, directly or indirectly, by the Company. For
purposes of the foregoing clause, the sale of stock of a subsidiary of
the Company (or the assets of such subsidiary) shall be treated as a
sale of assets of the Company; or
	 
	 	(vi)	 	the approval by the stockholders of a plan or
proposal for the liquidation or dissolution of the Company.






	 	 	 	For purposes of this Agreement, no event or
transaction that is entered into, is contemplated by, or occurs as a
result of the transactions contemplated by the Merger Agreement shall
constitute a Change in Control, and references to “the Company” in the
definition of “Change in Control” set forth above shall be deemed to
refer to the Company or a parent (within the meaning of the Exchange
Act) thereof. In addition, Employee agrees and consents to any
conversion or modification of Employee’s outstanding stock options,
restricted stock or other equity-based incentive awards
permissible under the corresponding plans (if any) and/or the assignment
of this Agreement in connection with the transactions contemplated by
the Merger Agreement.
	 
	 	(e)	 	Six-Month Delay. To the extent Employee is a
“specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code and
the regulations and other guidance promulgated thereunder and any elections
made by the Company in accordance therewith, notwithstanding the timing of
payment provided in any other Section of this Agreement, no payment,
distribution
or benefit under this Agreement that constitutes a distribution of deferred
compensation (within the meaning of Treasury Regulation Section 1.409A-1(b))
upon Employee’s “separation from service” (within the meaning of Treasury
Regulation Section 1.409A-1(h)), after taking into account all available
exemptions, that would otherwise be payable during the six-month period
after separation from service, will be made





-9-









 











	 	 	 	during such six-month period,
and any such payment, distribution or benefit will instead be paid on the
first business day after such six-month period (the “Delayed Payment
Date”); provided, however, that if Employee dies
following the Date of Termination but prior to the Delayed Payment Date,
such amounts shall be paid to the personal representative of Employee’s
estate within thirty (30) days following the Employee’s death.





     10. Excise Tax Gross-up Payments.




	 	(a)	 	If any payments or benefits paid or provided or to be paid or
provided to Employee or for his benefit pursuant to the terms of this Agreement
(including the Relocation Letter Agreement) or otherwise in connection with, or
arising out of, his employment with the Company or its subsidiaries or the
termination thereof (a “Payment” and, collectively, the
“Payments”) would be subject to the excise tax imposed by Section 4999
of the Code (the “Excise Tax”), then, except as otherwise provided in
this Subsection 10(a), Employee will be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that, after payment by
Employee of all income taxes, all employment taxes and any Excise Tax imposed
upon the Gross-Up Payment (including any related interest and penalties but not
taxes arising under Code Section 409A), Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax (including any related interest and
penalties but not taxes arising under Code Section 409A) imposed upon the
Payments. Notwithstanding the foregoing, if the amount of the Payments does
not exceed by more than 3% the amount that would be payable to Employee if the
Payments were reduced to one dollar less than what would constitute a
“parachute payment” under Section 280G of the Code (the “Scaled Back
Amount”), then the Payments shall be reduced to the Scaled Back Amount, and
Employee shall not be entitled to any Gross-Up Payment. The reduction of the
Payments, if applicable, shall be made by reducing the payments and benefits
under the following sections of this Agreement in the following order: (i)
Section 9(a)(iii); (ii) Section 9(a)(ii); and (iii) Section 9(a)(v). If the
reduction of the amounts payable under this Agreement would not result in a
reduction of the parachute value of all Payments to the Scaled Back Amount, no
amounts payable under this Agreement shall be reduced pursuant to this Section
10(a) and Employee shall be entitled to the Gross-Up Payment. The Company’s
obligation to make Gross-Up Payments under this Section 10 shall not be
conditioned upon Employee’s termination of employment.
	 
	 	(b)	 	An initial determination of (i) whether a Gross-Up Payment is
required pursuant to this Agreement, and, if applicable, the amount of such
Gross-Up Payment or (ii) whether the Payments must be reduced to the Scaled
Back Amount and, if so, the amount of such reduction, will be made at the
Company’s expense by an accounting firm selected by the Company. The
accounting firm will provide its determination, together with detailed





-10-









 











	 	 	 	supporting calculations and documentation, to the Company and Employee within
ten (10) business days of the receipt of notice from the Company or the
Employee that there has been a Payment, or such earlier time as is requested by
the Company or the Employee. If the accounting firm determines that no Excise
Tax is payable by Employee with respect to a Payment or Payments, it will
furnish Employee with an opinion to that effect. If a Gross-Up Payment becomes
payable, such Gross-Up Payment will be paid by the Company to Employee within
sixty (60) days of the receipt of the accounting firm’s determination. If a
reduction in Payments is required, such reduction shall be effectuated within
sixty (60) days of the receipt of the accounting firm’s determination. Within
ten (10) business days after the accounting firm delivers its determination to
Employee, Employee will have the right to dispute the determination. The
existence of a dispute will not in any way affect Employee’s right to receive a
Gross-Up Payment in accordance with the determination. If there is no dispute,
the determination will be binding, final, and conclusive upon the Company and
Employee. If there is a dispute, the Company and Employee will together select
a second accounting firm, which will review the determination and Employee’s
basis for the dispute and then will render its own determination, which will be
binding, final, and conclusive on the Company and on Employee for purposes of
determining whether a Gross-Up Payment is required pursuant to this Subsection
10(b) or whether a reduction to the Scaled Back Amount is required, as the case
may be. The Company will bear all costs associated with the second accounting
firm’s determination, unless such determination does not result in additional
Gross-Up Payments to Employee or unless such determination does not mitigate
the reduction in Payments required to arrive at the Scaled Back Amount, in
which case all such costs will be borne by Employee.
	 
	 	(c)	 	For purposes of determining the amount of the Gross-Up Payment
and, if applicable, the Scaled Back Amount, Employee will be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Gross-Up Payment is to be made or the Scaled
Back Amount is determined, as the case may be, and applicable state and local
income taxes at the highest marginal rate of taxation in the state and locality
of Employee’s residence on the date of termination of Employee’s employment,
net of the maximum reduction in federal income taxes that would be obtained
from deduction of those state and local taxes.
	 
	 	(d)	 	As a result of the uncertainty in the application of
Section 4999 of the Code, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made, Employee’s Payments will
be reduced to the Scaled Back Amount when they should not have been or
Employee’s Payments are reduced to a greater extent than they should have been
(an “Underpayment”) or Gross-Up Payments are made by the





-11-









 











	 	 	 	Company which
should not have been made, Employee’s Payments are not reduced to the Scaled
Back Amount when they should have been or they are not reduced to the extent
they should have been (an “Overpayment”). If it is determined that an
Underpayment has occurred, the accounting firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be
promptly paid by the Company to or for the benefit of Employee. If it is
determined that an Overpayment has occurred, the accounting firm shall
determine the amount of the Overpayment that has occurred and any such
Overpayment (together with interest at the rate provided in Section 1274(b)(2)
of the Code) shall be promptly paid by Employee (to the extent he has received
a refund if the applicable Excise Tax has been paid to the Internal Revenue
Service) to or for the benefit of the Company; provided,
however, that if the Company determines that such repayment obligation
would be or result in an unlawful extension of credit under Section 13(k) of
the Exchange Act, repayment shall not be required. Employee shall cooperate,
to the extent his expenses are reimbursed by the Company, with any reasonable
requests by the Company in connection with any contest or disputes with the
Internal Revenue Service in connection with the Excise Tax.
	 
	 	(e)	 	Employee shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require a payment
resulting in an Underpayment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after Employee is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. Employee shall
not pay such claim prior to the expiration of the thirty (30) day period
following the date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies Employee in writing prior to the
expiration of such period that it desires to contest such claim, Employee
shall: (i) give the Company any information reasonably requested by the Company
relating to such claim; (ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order effectively to contest
such claim; and (iv) permit the Company to participate in any proceeding
relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and
hold Employee harmless, on an after-tax basis, for any Excise Tax or income
tax (including related interest and penalties) imposed as a result of such
representation and payment of costs and expenses. Without limitation on





-12-









 











	 	 	 	the
foregoing provisions of this Subsection 10(e), the Company shall control all
proceedings taken in connection with such contest and, at its sole option,
may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct Employee to pay the tax claimed
and sue for a refund or contest the claim in any permissible manner, and
Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided,
however, that if the Company directs Employee to pay such claim and
sue for a refund, the Company shall advance the amount of such payment to
Employee, on an interest-free basis and shall indemnify and hold Employee
harmless, on an after-tax basis, from any Excise Tax or income tax
(including related interest or penalties) imposed with respect to such
advance or with respect to any imputed income with respect to such advance.
The Company’s control of the contest shall be limited to issues that may
impact Gross-Up Payments or reduction in Payments under this Section 10, and
Employee shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
	 
	 	(f)	 	If, after the receipt by Employee of an amount advanced by the
Company pursuant to Subsection 10(e), Employee becomes entitled to receive any
refund with respect to such claim, Employee shall (subject to the Company’s
complying with the requirements of Subsection 10(e)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by Employee of
an amount advanced by the Company pursuant to Subsection 10(e), a determination
is made that Employee shall not be entitled to any refund with respect to such
claim and the Company does not notify Employee in writing of its intent to
contest such denial of refund prior to the expiration of thirty (30) days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid.
	 
	 	(g)	 	Any Gross-Up Payment or additional Gross-Up Payment shall be
paid by the Company to the Employee within sixty (60)  days of the receipt of
the accounting firm’s (or second accounting firm’s) determination, provided
that, notwithstanding any other provision of this Section to the contrary, any
Gross-Up Payment or other payment under this Section 10 must be made by the
Company no later than the end of the tax year of the
Employee following the tax year in which the Employee remits the related tax
payments.





     11. Non-Delegation of Employee’s Rights. The obligations, rights and benefits of
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.



-13-









 





     12. Confidential Information. Employee acknowledges that he will occupy a position of
trust and confidence and will have access to and learn substantial information about the Company
and its affiliates and their operations that is confidential or not generally known in the industry
including, without limitation, information that relates to purchasing, sales, customers, marketing,
and the financial positions and financing arrangements of the Company and its affiliates. Employee
agrees that all such information is proprietary or confidential, or constitutes trade secrets and
is the sole property of the Company and/or its affiliates, as the case may be. 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 or its affiliates’ methods,
processes, customers, accounts, analyses, systems, charts, programs, procedures, correspondence or
records, or any other documents used or owned by the Company or any of its affiliates, nor will
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 12. Accordingly, Employee agrees that
during the Employment 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 and its
affiliates.



     13. Non-Competition.




	 	(a)	 	During Employment Term. Employee agrees that, during
the Employment Term, he will devote such business time, attention and energies
reasonably necessary to the diligent and faithful performance of the services
to the Company and its affiliates, and he will not engage in any way
whatsoever, directly or indirectly, in any business that is a direct competitor
with the Company’s or its affiliates’ principal business, nor solicit
customers, suppliers or employees of the Company or affiliates on behalf of, or
in any other manner work for or assist any business which is a direct
competitor with the Company’s or its affiliates’ principal business. In
addition, during the Employment Term, 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 Employee will not combine or conspire with
any other employee of Company or any other person for the purpose of organizing
any such competitive business activity.
	 
	 	(b)	 	After Employment Term. The parties acknowledge that
Employee will acquire substantial knowledge and information concerning the
business of the Company and its affiliates as a result of his employment. The
parties further acknowledge that the scope of business in which the Company and its
affiliates are engaged as of the Effective Time is national and very
competitive and one in which few companies can successfully compete.
Competition by Employee in that business after the Employment Term would
severely injure the Company and its affiliates. Accordingly, for a period
of one (1) year after Employee’s employment terminates for any reason
whatsoever, except as otherwise stated herein below, Employee agrees:
(1) not to become an employee, consultant, advisor, principal,





-14-









 








	 	 	 	partner or substantial shareholder of any firm or business that directly competes with
the Company or its affiliates in their principal products and markets; and
(2), on behalf of any such competitive firm or business, not to solicit any
person or business that was at the time of such termination and remains a
customer or prospective customer, a supplier or prospective supplier, or an
employee of the Company or an affiliate. Notwithstanding any of the
foregoing provisions to the contrary, Employee shall not be subject to the
restrictions set forth in this Subsection 13(b) if: (i) Employee’s
employment is terminated by the Company without Cause; (ii) Employee
terminates employment for Good Reason; or (iii) Employee’s employment is
terminated as a result of the Company’s unwillingness to extend the
Employment Term.
	 
	 	(c)	 	Exclusion. Working, directly or indirectly, for the
Company or its affiliates or their successors if this Agreement is assumed by a
third party as contemplated in Section 21 shall not be considered competitive
to the Company or its affiliates for the purpose of this Section 13.





     14. Return of the Company Documents. Upon termination of the Employment Term,
Employee shall return immediately to the Company all records and documents of or pertaining to the
Company or its affiliates and shall not make or retain any copy or extract of any such record or
document, or any other property of the Company or its affiliates.



     15. Improvements and Inventions. Any and all improvements or inventions that Employee
may make or participate in during the Employment Term, unless wholly unrelated to the business of
the Company and its affiliates and not produced within the scope of Employee’s employment
hereunder, shall be the sole and exclusive property of the Company. Employee shall, whenever
requested by the Company, execute and deliver any and all documents that the Company deems
appropriate in order to apply for and obtain patents or copyrights in improvements or inventions or
in order to assign and/or convey to the Company the sole and exclusive right, title and interest in
and to such improvements, inventions, patents, copyrights 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 Employee to abide by its terms and conditions, nor will money
damages adequately compensate for such injury. Therefore, it is agreed between and hereby
acknowledged by the parties that, in the event of a breach by Employee of any of the obligations of
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 Employee to perform as agreed herein. Employee
hereby acknowledges that obligations under Sections and Subsections 12, 13(b), 14, 15, 16, 17 and
18 shall survive the Date of Termination and be binding by their terms at all times subsequent to
the Date of Termination for the periods specified therein. Nothing herein shall in any way limit
or exclude any other right granted by law or equity to the Company.



-15-









 





     17. Release. Notwithstanding any provision herein to the contrary, the Company may
require that, prior to payment of any amount or provision of any benefit under Section 9 or payment
of any Gross-Up Payment pursuant to Section 10 of this Agreement (other than due to Employee’s
death or a Gross-Up Payment arising as a result of payments under the Relocation Letter Agreement),
Employee shall have executed a complete release of the Company and its affiliates and related
parties in such form as is reasonably required by Company, and any waiting periods contained in
such release shall have expired; provided that the release shall not apply to Employee’s rights
under the benefit plans and programs of the Company and its affiliates, which rights shall be
determined in accordance with the terms of such plans and programs. With respect to any release
required to receive payments owed pursuant to Section 9, the Company must provide Employee with the
form of release no later than seven (7) days after the Date of Termination and the release must be
signed by Employee and returned to Company, unchanged, effective and irrevocable, no later than
sixty (60) days after the Date of Termination. With respect to any release required to receive
payment of any Gross-Up Payment pursuant to Section 10, the Company must provide Employee with the
form of release no later than seven (7) days after the accounting firm’s determination and the
release must be signed by Employee and returned to Company, unchanged, effective and irrevocable,
no later than sixty (60) days after the accounting firm’s determination.



     18. No Mitigation. The Company agrees that, if Employee’s employment hereunder is
terminated during the Employment Term, Employee is not required to seek other employment or to
attempt in any way to reduce any amounts payable to Employee by the Company hereunder. Further,
the amount of any payment or benefit provided for hereunder (other than pursuant to Subsection
9(a)(v) hereof) shall not be reduced by any compensation earned by Employee as the result of
employment by another employer, by retirement benefits or otherwise.



     19. Entire Agreement and Amendment. This Agreement, together with the Relocation
Letter Agreement, embodies the entire agreement and understanding of the parties hereto in respect
of the subject matter of this Agreement, and supersedes and replaces all prior agreements,
understandings and commitments with respect to such subject matter. This Agreement may be amended
only by a written document signed by both parties to this Agreement.



     20. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida, excluding any conflicts or choice of law rule or principle
that might otherwise refer construction or interpretation of this Agreement to the substantive law
of another jurisdiction. Any litigation pertaining to this Agreement shall be adjudicated in
courts located in Duval County, Florida.



     21. Successors. This Agreement may not be assigned by Employee. In addition to any
obligations imposed by law upon any successor to the Company, the Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the stock, business and/or assets of the Company, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the Company to obtain
such assumption by a successor shall be a material breach of this Agreement. Employee agrees and
consents to any such assumption by a successor or parent of the Company,



-16-









 







as well as any assignment of this Agreement by the Company for that purpose. As used in this Agreement, “Company”
shall mean the Company as herein before defined as well as any such successor or parent that
expressly assumes this Agreement or otherwise becomes bound by all of its terms and provisions by
operation of law.



     22. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.



     23. 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 interpret or enforce any of
the terms hereof, the party prevailing in such action or other proceeding shall be promptly paid by
the other party its reasonable legal fees, court costs, litigation expenses, all as determined by
the court and not a jury, and such payment shall be made by the non-prevailing party no later than
the end of the Employee’s tax year following the Employee’s tax year in which the payment amount
becomes known and payable provided, however, that on or after a Change in Control,
and following the Employee’s Date of Termination with the Company, 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 interpret or enforce any of the terms hereof, Company shall pay (on an ongoing basis) to
Employee to the fullest extent permitted by law, all legal fees, court costs and litigation
expenses reasonably incurred by Employee or others on his behalf (such amounts collectively
referred to as the “Reimbursed Amounts”); provided, further, that Employee
shall reimburse the Company for the Reimbursed Amounts if it is determined by the court and not a
jury that a majority of Employee’s claims or defenses were frivolous or without merit. Requests for
payment of Reimbursed Amounts, together with all documents required by the Company to substantiate
them, must be submitted to the Company no later than ninety (90) days after the expense was
incurred. The Reimbursed Amounts shall be paid by Company within ninety (90) days after receiving
the request and all substantiating documents requested from Employee. The payment of Reimbursed
Amounts during Employee’s tax year will not impact the Reimbursed Amounts for any other taxable
year and Employee’s right to such reimbursement may not be liquidated or exchanged for any other
benefit. The rights under this Section 23 shall survive the Date of Termination and this Agreement
until the expiration of the applicable statute of limitations.



     24. 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 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 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.



-17-









 





     25. 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 Company:


Fidelity National Information Services, Inc.

601 Riverside Avenue

Jacksonville, Florida 32204

Attention: General Counsel




     To Employee:


Michael D. Hayford

At the most recent address on file at the Company.




     26. 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.



     27. Tax Withholding. The Company or an affiliate may deduct from all compensation and
benefits payable under this Agreement any taxes or withholdings the Company is required to deduct
pursuant to state, federal or local laws.



     28. Code Section 409A.




	 	(a)	 	To the extent applicable, it is intended that this Agreement
and any payment made hereunder shall comply with the requirements of
Section 409A of the Code or an exemption or exclusion therefrom, and any
related regulations or other guidance promulgated with respect to such Section
by the U.S. Department of the Treasury or the Internal Revenue Service
(“Code Section 409A”) and shall in all respects be administered in
accordance with Code Section 409A; provided, that for the avoidance of
doubt, this provision shall not be construed to require a gross-up payment in
respect of any taxes, interest or penalties imposed on the Employee as a result
of Code Section 409A. Any provision that would cause the Agreement or any
payment hereof to fail to satisfy Code Section 409A shall have no force or
effect until amended to comply with Code
Section 409A in the least restrictive manner necessary and without any
diminution in the value of the payments to Employee, which amendment may be
retroactive to the extent permitted by Code Section 409A. Each payment
under this Agreement shall be treated as a separate payment for purposes of
Code Section 409A. In no event may Employee, directly or indirectly,
designate the calendar year of any payment to be made under this Agreement.
All reimbursements and in-kind benefits provided under





-18-









 











	 	 	 	this Agreement shall
be made or provided in accordance with the requirements of Code
Section 409A, including, without limitation, that (i) in no event shall
reimbursements by the Company under this Agreement be made later than the
end of the calendar year next following the calendar year in which the
applicable fees and expenses were incurred, provided, that the Employee
shall have submitted an invoice for such fees and expenses at least 10 days
before the end of the calendar year next following the calendar year in
which such fees and expenses were incurred; (ii) the amount of in-kind
benefits that the Company is obligated to pay or provide in any given
calendar year shall not affect the in-kind benefits that the Company is
obligated to pay or provide in any other calendar year; (iii) the Employee’s
right to have the Company pay or provide such reimbursements and in-kind
benefits may not be liquidated or exchanged for any other benefit; and (iv)
in no event shall the Company’s obligations to make such reimbursements or
to provide such in-kind benefits apply later than the Employee’s remaining
lifetime (or if longer, through the 20th anniversary of the Effective Time).
Prior to the Effective Time but within the time period permitted by the
applicable Treasury Regulations, the Company may, in consultation with
Employee, modify the Agreement, in the least restrictive manner necessary
and without any diminution in the value of the payments to Employee, in
order to cause the provisions of the Agreement to comply with the
requirements of Code Section 409A, so as to avoid the imposition of taxes
and penalties on Employee pursuant to Code Section 409A.
	 
	 	(b)	 	The parties acknowledge that no representation is made
regarding the consequences of the compensation and benefits payable under this
Agreement and/or the Relocation Letter Agreement under Code Section 409A (or
similar sections of state tax law). Except as provided in Section 10, Employee
agrees and, will agree pursuant to a release effective upon payment of the
Retention Bonus (as defined in the Relocation Letter Agreement), to release all
known and unknown claims, promises, causes of action, or similar rights of any
type (based upon any legal or equitable theory, whether contractual, common
law, or statutory) that Employee may have against the Company, Metavante and
any and all of their former and existing parents, subsidiaries, predecessors,
successors, and affiliated entities and all of their respective current and
former directors, officers, employees, agents, managers, shareholders,
successors, assigns, and other representatives, arising out of, or in
connection with, the Relocation Letter Agreement and the benefits thereunder,
including, without limitation, the
consequences or characterization (including for purposes of tax withholding
and reporting) of the payment of the Relocation Benefits under Code Section
409A (or similar sections of state tax law). It is understood and agreed
that the release will be entered into on behalf of the Employee and for his
heirs, executors, administrators, trustees, agents, legal representatives
and assigns.




-19-









 











     IN WITNESS WHEREOF the parties have executed this Agreement to be effective as of immediately
following the Effective Time.



	 	 	 	 	 
	 	FIDELITY NATIONAL INFORMATION SERVICES, INC.

 	 
	 	/s/ Lee A. Kennedy
 	 
	 	 	 
	 	By:  	 Lee A. Kennedy
 	 
	 	Its: President and CEO         	 
	 	 	 	 
	 	MICHAEL D. HAYFORD

 	 
	 	/s/ Michael D. Hayford