agremploymentjabbourex10







   1         Exhibit 10.46   EMPLOYMENT AGREEMENT      THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of October 1,   2009 (the "Effective Date"), by and between FIDELITY NATIONAL INFORMATION   SERVICES, INC., a Georgia corporation (the "Company"), and ANTHONY JABBOUR (the   "Employee").  In consideration of the mutual covenants and agreements set forth herein, the   parties agree as follows:   1. Purpose and Release.  The purpose of this Agreement is to amend and restate all   prior agreements between Company, and any of its affiliates, and Employee relating to the   subject matter of this Agreement (including, without limitation, the Employment Agreement   dated as of February 15, 2008 by and between Company and Employee), to recognize   Employee's significant contributions to the overall financial performance and success of   Company, to protect Company's business interests through the addition of restrictive covenants,   to assure Company of the services of Employee following the Effective Date, and to provide a   single, integrated document which shall provide the basis for Employee's continued employment   by Company. 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.    2. Employment and Duties.  Subject to the terms and conditions of this Agreement,   Company employs Employee to serve as EVP, Financial Solutions, or in such other capacity as   may be mutually agreed by the parties. 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 Company. Employee shall devote substantially all business time, attention and effort to   the performance of duties hereunder and shall not engage in any business, profession or   occupation, for compensation or otherwise without the express written consent of Company,   other than personal, personal investment, charitable, or civic activities or other matters that do   not conflict with Employee's duties.   3. Term.  The term of this Agreement shall commence on the Effective Date and   shall continue for a period of three (3) years ending on the third anniversary of the Effective Date   or, if later, ending on the last day of any extension made pursuant to the next sentence, subject to   prior termination as set forth in Section 8 (such term, including any extensions pursuant to the   next sentence, the "Employment Term"). The Employment Term shall be extended automatically   for one (1) additional year on the first anniversary of the Effective Date and for an additional   year each anniversary thereafter unless and until either party gives written notice to the other not   to extend the Employment Term before such extension would be effectuated.   4. Salary.  During the Employment Term, Company shall pay Employee an annual   base salary, before deducting all applicable withholdings, of no less than $475,000 per year,   payable at the time and in the manner dictated by 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 Company to reflect, among     





 







2         other matters, cost of living increases and performance results (such annual base salary,   including any increases, 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 Company or an affiliate of   Company may from time to time make available to Employee, Employee shall be entitled to the   following during the Employment Term:    (a) equivalent or more beneficial medical and other insurance coverage (for   Employee and any covered dependents) provided by Company to executives with   the same corporate title (e.g., Executive Vice President);   (b) supplemental disability insurance sufficient to provide a benefit to Employee   equal to two-thirds of Employee's pre-disability Annual Base Salary, provided   that such coverage is available in the market using traditional standards of   underwriting;   (c) an annual incentive bonus opportunity under Company's annual incentive plan   ("Annual Bonus Plan") for each calendar year included in the Employment Term,   with such opportunity to be earned based upon attainment of performance   objectives established by Company ("Annual Bonus"). Employee's target Annual   Bonus under the Annual Bonus Plan shall be no less than 125% of Employee's   then current Annual Base Salary, with a maximum of up to 250% of Employee's   then current Annual Base Salary (collectively, the target and maximum Annual   Bonus are referred to as the "Annual Bonus Opportunity"). Employee's Annual   Bonus Opportunity may be periodically reviewed and increased by Company, but   may not be decreased without Employee's express written consent. If owed   pursuant to the terms of the Annual Bonus Plan, 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 of Directors of   Company (the "Board") determines otherwise, no Annual Bonus shall be paid to   Employee unless Employee is employed by Company, or an affiliate thereof, on   the Annual Bonus payment date;    (d) eligibility to participate in Company's equity incentive plans; and   (e) all other benefits and incentive opportunities customarily made available to   executives with the same corporate title.    6. Vacation.  For and during each calendar year within the Employment Term,   Employee shall be entitled to reasonable paid vacation periods and holidays consistent with   Employee's position and in accordance with Company's standard policies, or as Company may   approve.   7. Expense Reimbursement.  In addition to the compensation and benefits provided   herein, Company shall, upon receipt of appropriate documentation, reimburse Employee each   month for reasonable travel, lodging, entertainment, promotion and other ordinary and necessary     





 







3         business expenses incurred during the Employment Term to the extent such reimbursement is   permitted under Company's expense reimbursement policy.   8. Termination of Employment.  Company or Employee may terminate Employee's   employment at any time and for any reason in accordance with Subsection (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 written Notice of   Termination (as defined herein) from one party to the other in accordance with the   notice provisions contained in this Agreement. For purposes of this Agreement, a   "Notice of Termination" shall mean a notice that indicates the "Date of   Termination" and, with respect to a termination due to "Cause", "Disability" or   "Good Reason", sets forth in reasonable detail the facts and circumstances that are   alleged to provide a basis for such termination. A Notice of Termination from   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.    (b) Date of Termination.  For purposes of this Agreement, "Date of Termination"   shall mean the date specified in the Notice of Termination (but in no event shall   such date be earlier than the thirtieth (30th) day following the date the Notice of   Termination is given) or the date of 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 Section 409A (as   defined in Section 26(b) of this 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 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 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 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 Company that would   otherwise constitute Good Reason); (iii) conviction of, or pleading nolo   contendere to, criminal or other illegal activities involving dishonesty or moral     





 







4         turpitude; (iv) material breach of this Agreement; (v) material breach of   Company's business policies, accounting practices or standards of ethics; or (vi)   failure to materially cooperate with or impeding an investigation authorized by   the Board.     (e) Disability.  For purposes of this Agreement, a termination based upon "Disability"   means a termination of Employee's employment by Company based upon   Employee's entitlement to long-term disability benefits under 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, a termination for "Good Reason"   means a termination of Employee's employment by Employee based upon the   occurrence (without Employee's express written consent) of any of the following:   (i) a material adverse change in Employee's position or title, or a material   diminution in Employee's managerial authority, duties or responsibilities   or the conditions under which such duties or responsibilities are performed   (e.g., a material reduction in the number or scope of department(s),   functional group(s) or personnel over which Employee has managerial   authority), in each case as in effect as of immediately following the   Effective Date;   (ii) a material adverse change in the position to whom Employee reports (e.g.,   COO), or a material diminution in the managerial authority, duties or   responsibilities of the person in that position, in each case as of   immediately following the Effective Date;   (iii) a material change in the geographic location of Employee's principal   working location (currently, 601 Riverside Avenue, Jacksonville, Florida),   which Company has determined to be a relocation of more than thirty-five   (35) miles;   (iv) a material diminution in Employee's Annual Base Salary or Annual Bonus   Opportunity; or   (v) a material breach by Company of any of its obligations under this   Agreement.   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 Company specifying the condition or event relied upon   for such termination within ninety (90) days of the initial existence of such event and (2)   Company fails to cure the condition or event constituting Good Reason within thirty (30) days     





 







5         following receipt of Employee's Notice of Termination (the "Cure Period").  In the event that   Company fails to remedy the condition constituting Good Reason during the applicable Cure   Period, Employee's "separation from service" (within the meaning of 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 Company Upon Termination.   (a) Termination by Company for a Reason Other than Cause, Death or Disability and   Termination by Employee for Good Reason.  If Employee's employment is   terminated during the Employment Term by: (1) Company for any reason other   than Cause, Death or Disability; or (2) Employee for Good Reason:    (i) 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) Company shall pay Employee no later than March 15th of the calendar   year following the year in which the Date of Termination occurs, a   prorated Annual Bonus based upon the actual Annual Bonus that would   have been earned by Employee for the year in which the Date of   Termination occurs, ignoring any requirement under the Annual Bonus   Plan that Employee must be employed on the payment date (using   Employee's Annual Bonus Opportunity for the prior year if no Annual   Bonus Opportunity has been approved for the year in which the Date of   Termination occurs), multiplied by the percentage of the calendar year   completed before the Date of Termination;    (iii) Company shall pay Employee as soon as practicable, but not later than the   sixty-fifth (65th) day after the Date of Termination, a lump-sum payment   equal to 200% 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   Company within the three (3) years preceding the Date of Termination or,   if higher, the target Annual Bonus in the year in which the Date of   Termination occurs;    (iv) All stock option, restricted stock and other equity-based incentive awards   granted by Company that were outstanding but not vested as of the Date of   Termination shall become immediately vested and/or payable, as the case   may be, unless the equity incentive awards are based upon satisfaction of     





 







6         performance criteria; in which case, they will only vest pursuant to their   express terms;    (v) Any life insurance coverage provided by Company shall terminate at the   same time as life insurance coverage would normally terminate for any   other employee that terminates employment with Company, and   Employee shall have the right to convert that life insurance coverage to an   individual policy under the regular rules of Company's group policy. In   addition, as soon as practicable, but not later than the sixty-fifth (65th) day   after the Date of Termination, Company shall pay Employee a lump sum   cash payment equal to thirty-six monthly life insurance premiums based   on the monthly premiums that would be due assuming that Employee had   converted Company's life insurance coverage that was in effect on the   Notice of Termination into an individual policy; and   (vi) As long as Employee pays the full monthly premiums for COBRA   coverage, Company shall provide Employee and, as applicable,   Employee's eligible dependents with continued medical and dental   coverage, on the same basis as provided to 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, as soon as practicable, but not later   than the sixty-fifth (65th) day after the Date of Termination, Company   shall pay Employee a lump sum cash payment equal to thirty-six monthly   medical and dental COBRA premiums based on the level of coverage in   effect for Employee (e.g., employee only or family coverage) on the Date   of Termination.     (b) Termination by Company for Cause and by Employee without Good Reason.  If   Employee's employment is terminated during the Employment Term by Company   for Cause or by Employee without Good Reason, Company's only obligation   under this Agreement shall be payment of any Accrued Obligations.   (c) Termination due to Death or Disability.  If Employee's employment is terminated   during the Employment Term due to death or Disability, Company shall pay   Employee (or to Employee's estate or personal representative in the case of   death), as soon as practicable, but not later than the sixty-fifth (65th) day after the   Date of Termination: (i) any Accrued Obligations; plus (ii) 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 (iii) the unpaid   portion of the Annual Base Salary that would have been paid through the   remainder of the Employment Term.     





 







7         10. 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.    11. Confidential Information.  Employee will occupy a position of trust and   confidence and will have access to and learn substantial information about 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 Company and its affiliates. Employee   agrees that all such information is proprietary or confidential, or constitutes trade secrets and is   the sole property of 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 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 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. Accordingly, during the Employment   Term and at all times thereafter Employee will not disclose, or permit or encourage anyone else   to disclose, any such information, nor will Employee utilize any such information, either alone or   with others, outside the scope of Employee's duties and responsibilities with Company and its   affiliates.   12. Non-Competition.     (a) During Employment Term. During the Employment Term Employee will devote   such business time, attention and energies reasonably necessary to the diligent and   faithful performance of the services to Company and its affiliates, and will not   engage in any way whatsoever, directly or indirectly, in any business that is a   direct competitor with Company's or its affiliates' principal business, nor solicit   customers, suppliers or employees of Company or affiliates on behalf of, or in any   other manner work for or assist any business which is a direct competitor with   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 performed as an employee of 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 Company and   its affiliates as a result of employment. The parties further acknowledge that the   scope of business in which Company and its affiliates are engaged as of the   Effective Date 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 Company and its affiliates.   Accordingly, for a period of one (1) year after Employee's employment terminates     





 







8         for any reason whatsoever, except as otherwise stated herein below, Employee   agrees: (1) not to become an employee, consultant, advisor, principal, partner or   substantial shareholder of any firm or business that directly competes with   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   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 (b) if Employee's employment is terminated by Company without   Cause.   (c) Exclusion.  Working, directly or indirectly, for any of the following entities shall   not be considered competitive to Company or its affiliates for the purpose of this   section: (i) Fidelity National Financial, Inc., its affiliates or their successors; or   (ii) Lender Processing Services Inc., its affiliates or their successors.   13. Return of Company Documents.  Upon termination of the Employment Term,   Employee shall return immediately to Company all records and documents of or pertaining to   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 Company or its affiliates.   14. 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 Company and its affiliates and not produced within the scope of Employee's   employment hereunder, shall be the sole and exclusive property of Company. Employee shall,   whenever requested by Company, execute and deliver any and all documents that 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 Company the sole and exclusive right, title and   interest in and to such improvements, inventions, patents, copyrights or applications.   15. Actions and Survival.  The parties agree and acknowledge that the rights   conveyed by this Agreement are of a unique and special nature and that 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, in the   event of a breach of this Agreement by Employee, Company shall have the right, among other   rights, to damages sustained thereby and to obtain an injunction or decree of specific   performance from a court of competent jurisdiction to restrain or compel Employee to perform as   agreed herein. Notwithstanding any termination of this Agreement or Employee's employment,   Section 9 shall remain in effect until all obligations and benefits resulting from a termination of   Employee's employment during the Term are satisfied. In addition, Sections 10 through 26 shall   survive the termination of this Agreement or Employee's employment and shall remain in effect   for the periods specified therein or, if no period is specified, until all obligations thereunder have   been satisfied. Nothing in this Agreement shall in any way limit or exclude any other right   granted by law or equity to Company.     





 







9         16. Release.  Notwithstanding any provision herein to the contrary, Company may   require that, prior to payment, distribution or other benefit under this Agreement (other than due   to Employee's death), Employee shall have executed a complete release of 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. With respect to any release required to   receive payments, distributions or other benefits owed pursuant to this Agreement, 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.   17. No Mitigation.  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 Company hereunder.    Further, the amount of any payment or benefit provided for hereunder shall not be reduced by   any compensation earned by Employee as the result of employment by another employer, by   retirement benefits or otherwise.   18. Entire Agreement and Amendment.  This 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.   19. 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.   20. Successors and Affiliates.  This Agreement may not be assigned by Employee. In   addition to any obligations imposed by law upon any successor to Company, 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 Company, to expressly   assume and agree to perform this Agreement in the same manner and to the same extent that   Company would be required to perform it if no such succession had taken place.  Failure of   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 of Company, as well as   any assignment of this Agreement by Company for that purpose. As used in this Agreement,   "Company" shall mean Company as herein before defined as well as any such successor that   expressly assumes this Agreement or otherwise becomes bound by all of its terms and provisions   by operation of law. This Agreement shall be binding upon and inure to the benefit of the parties   and their permitted successors or assigns. Any references herein to compensation and benefits   paid or provided, or to be paid or provided, by Company shall be interpreted as including   compensation and benefits paid or provided, or to be paid or provided, by Company affiliates.   Company's obligations hereunder may be satisfied by any of Company's affiliates.     





 







10         21. 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.   22. 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 any such action or other proceeding shall be promptly   paid by the other party its reasonable legal fees, court costs and litigation expenses, all as   determined by the court and not a jury, and such payment shall be made by the non-prevailing   party within sixty (60) days of the date the right to the payment amount is so determined;   provided, however, that following Employees termination of employment with 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 Employee's behalf (such   amounts collectively referred to as the "Reimbursed Amounts"); provided, further, that   Employee shall reimburse Company for the Reimbursed Amounts if it is determined 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 Company to   substantiate them, must be submitted to 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 rights   under this section shall survive the termination of employment and this Agreement until the   expiration of the applicable statute of limitations.   23. 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 Company, whether predicated on   this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of   the covenants in this Agreement.   24. 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     





 







11           Jacksonville, FL 32204     Attention: General Counsel       To Employee:        At the most recent address on file at Company        25. 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.   26. Tax.   (a) Withholding.  Company or an affiliate may deduct from all compensation and   benefits payable under this Agreement any taxes or withholdings Company is   required to deduct pursuant to state, federal or local laws.   (b) Section 409A.  This Agreement and any payment, distribution or other benefit   hereunder shall comply with the requirements of Section 409A of the Internal   Revenue Code of 1986, as amended (the "Code"), or an exemption or exclusion   therefrom, as well as any related regulations or other guidance promulgated by the   U.S. Department of the Treasury or the Internal Revenue Service ("Section   409A"), to the extent applicable, and shall in all respects be administered in   accordance with 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 Employee as a result of Section 409A. To   the extent Employee is a "specified employee" under Section 409A, no payment,   distribution or other benefit described in this Agreement constituting a   distribution of deferred compensation (within the meaning of Treasury Regulation   Section 1.409A-1(b)) to be paid during the six-month period following   Employee's "separation from service" (within the meaning of Treasury Regulation   Section 1.409A-1(h)) will be made during such six-month period. Instead, any   such deferred compensation shall be paid on the first business day following the   six-month anniversary of the separation from service. In no event may Employee,   directly or indirectly, designate the calendar year of any payment to be made   under this Agreement. Any provision that would cause this Agreement or a   payment, distribution or other benefit hereunder to fail to satisfy the requirements   of Section 409A shall have no force or effect and, to the extent an amendment   would be effective for purposes of Section 409A, the parties agree that this   Agreement shall be amended to comply with Section 409A. Such amendment   shall be retroactive to the extent permitted by Section 409A. For purposes of this   Agreement, Employee shall not be deemed to have terminated employment unless   and until a separation from service (within the meaning of Treasury Regulation   Section 1.409A-1(h)) has occurred. Each payment under this Agreement shall be   treated as a separate payment for purposes of Section 409A. All reimbursements   and in-kind benefits provided under this Agreement shall be made or provided in   accordance with the requirements of Section 409A, including, where applicable,     





 







12         the requirement that (i) any reimbursement shall be for expenses incurred during   the time period specified in this Agreement, (ii) the amount of expenses eligible   for reimbursement, or in-kind benefits provided, during a calendar year may not   affect the expenses eligible for reimbursement, or in-kind benefits to be provided,   in any other calendar year, (iii) the reimbursement of an eligible expense will be   made not later than the last day of Employee's taxable year following the taxable   year in which such expense was incurred, and (iv) the right to reimbursement or   in-kind benefits is not subject to liquidation or exchange for another benefit.   (c) Excise Taxes. If any payments or benefits paid or provided or to be paid or   provided to Employee or for Employee's benefit pursuant to the terms of this   Agreement or otherwise in connection with, or arising out of, employment with   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 Employee may elect for such   Payments to be reduced to one dollar less than the amount that would constitute a   "parachute payment" under Section 280G of the Code (the "Scaled Back   Amount"). Any such election must be in writing and delivered to Company within   thirty (30) days after the Date of Termination.  If Employee does not elect to have   Payments reduced to the Scaled Back Amount, Employee shall be responsible for   payment of any Excise Tax resulting from the Payments and Employee shall not   be entitled to a gross-up payment under this Agreement or any other for such   Excise Tax. If the Payments are to be reduced, they shall be reduced in the   following order of priority: (i) first from cash compensation, (ii) next from equity   compensation, then (iii) pro-rated among all remaining payments and benefits. To   the extent there is a question as to which Payments within any of the foregoing   categories are to be reduced first, the Payments that will produce the greatest   present value reduction in the Payments with the least reduction in economic   value provided to Employee shall be reduced first.         [signature page follows]        





 







13         IN WITNESS WHEREOF the parties have executed this Agreement to be effective as of   the date first set forth above.       FIDELITY NATIONAL INFORMATION   SERVICES, INC.      By:  __________________________   Its:             ANTHONY JABBOUR      ______________________________      NY3 3037507.1