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Exhibit 10.1.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and XXXXX X. XXXXXX (the "Employee"), and supersedes any prior
employment agreement entered into between the parties. In consideration of the
mutual covenants and agreements set forth herein, the parties agree as follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the President of the Company, and the Employee accepts
such employment and agrees to perform such reasonable responsibilities and
duties commensurate with aforesaid position, as directed by the Chief Executive
Officer and as set forth in the Articles of Incorporation and the Bylaws of the
Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $250.000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the
Company's other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
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(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $15,000 for each full
percentage point the Company's return on equity exceeds 10% (based on equity
as of the beginning of the year being measured). Return on equity shall be
determined by dividing net income before extraordinary items by stockholders'
equity as of the beginning of the year being measured. Any fractional
percentage point increase shall be applied to $15,000 to determine the amount
of such bonus ( for example, an 11.5% return on equity would result in a
$22,500 bonus). Said bonus shall be paid no later than March 31st of each year
and is fully vested event of a non-renewal of this agreement or is vested
pro-rata in the event of a termination of this Agreement other than for cause.
The Board may additionally, in its sole discretion, grant to Employee an annual
merit bonus based upon Employee's performance during the preceding year and any
other factors the Board considers relevant.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall continue to pay to the Employee the
minimum base salary for the unexpired term of this Agreement and a prorated
bonus in a lump sum or as otherwise directed by Employee. If the Employee
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terminates hereunder, the Company shall be obligated to pay the Employee the
minimum base compensation set forth in Section 3 due him through the date of
termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by paying
Employee the minimum base salary without offset for the remainder of the term
of this Agreement in a lump sum or as otherwise directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
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(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. 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.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that
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relates to purchasing, sales, customers, marketing, the Company's financial
position and financing arrangements. Employee agrees that all such information
is proprietary or confidential or constitutes trade secrets and is the sole
property of the Company. Employee will keep confidential, and will not
reproduce, copy or disclose to any other person or firm, any such information
or any documents or information relating to the Company's methods, processes,
customers, accounts, analyses, systems, charts, programs, procedures,
correspondence, or records, or any other documents used or owned by the
Company, nor will Employee advise, discuss with or in any way assist any other
person or firm in obtaining or learning about any of the items described in
this section. Accordingly, Employee agrees that during the term of this
Agreement, or afterwards, he will not disclose, or permit or encourage anyone
who is not an employee of the Company 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.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he 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 the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Non-Competition After Employment Term. The parties
acknowledge that the Employee will acquire much 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 is engaged as of the date of execution of this Agreement is
national and very competitive and one in which few companies can successfully
compete. Competition by Employee in that business after this Agreement is
terminated would severely injure the Company. Accordingly, until two (2) years
after this Agreement is terminated or Employee leaves the employment of the
Company for any reason whatsoever, except as otherwise stated hereinbelow,
Employee agrees (a) not to become an employee, consultant, advisor, principal,
partner or substantial shareholder of any firm or business that in any way
competes with the Company or its affiliates in any of their presently existing
or then existing products and markets and (b) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer of the Company or any of its affiliates. Notwithstanding
any of the foregoing provisions to the contrary, Employee shall not be subject
to the restrictions set forth in this Section 12 under the following
circumstances:
(a) When Employee leaves the employment of the Company as
a result of termination by the Company without cause;
(b) When Employee is terminated as a result of the
Company's failure to renew his employment agreement; or
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(c) When Employee leaves the employment of the Company
for Good Reason pursuant to section 8 above.
13. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
14. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
15. 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 failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, 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 agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
16. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
17. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
18. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
19. 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
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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.
20. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
To Employee:
Xxxxx X. Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
21. 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.
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IN WITNESS WHEREOF the parties have executed this Employment Agreement
as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxx, XX
------------------------------------
Its. Chairman and Chief Executive Officer
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-------------------
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXX (the "Employee"), and supersedes any
prior employment agreement entered into between the parties. In consideration
of the mutual covenants and agreements set forth herein, the parties agree as
follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the Executive Vice President of the Company, and the
Employee accepts such employment and agrees to perform such reasonable
responsibilities and duties commensurate with aforesaid position, as directed
by the Chief Executive Officer and as set forth in the Articles of
Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $300,000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the
Company's other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
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(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $15,000 for each full
percentage point the Company's return on equity exceeds 10% (based on equity
as of the beginning of the year being measured). Return on equity shall be
determined by dividing net income before extraordinary items by stockholders'
equity as of the beginning of the year being measured. Any fractional
percentage point increase shall be applied to $15,000 to determine the amount
of such bonus ( for example, an 11.5% return on equity would result in a
$22,500 bonus). Said bonus shall be paid no later than March 31st of each year
and is fully vested event of a non-renewal of this agreement or is vested
pro-rata in the event of a termination of this Agreement other than for cause.
The Board may additionally, in its sole discretion, grant to Employee an annual
merit bonus based upon Employee's performance during the preceding year and any
other factors the Board considers relevant.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall continue to pay to the Employee the
minimum base salary for the unexpired term of this Agreement and a prorated
bonus in a lump sum or as otherwise directed by Employee. If the Employee
terminates hereunder, the Company shall be obligated to pay the Employee the
minimum base compensation set forth in Section 3 due him through the date of
termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the
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right upon written notice to the Employee to terminate this Agreement without
further obligation by paying Employee the minimum base salary without offset
for the remainder of the term of this Agreement in a lump sum or as otherwise
directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
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(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. 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.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that relates to purchasing, sales, customers, marketing, the Company's
financial position and financing arrangements. Employee agrees that all such
information is proprietary or confidential or constitutes trade secrets and is
the sole property of the Company. Employee will keep confidential, and will
not reproduce, copy or disclose to any other person or firm, any such
information or any documents or information relating to the Company's methods,
processes, customers, accounts, analyses, systems, charts, programs,
procedures, correspondence, or records, or any other documents used or owned by
the Company, nor will Employee advise, discuss with or in any way assist any
other person or firm
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in obtaining or learning about any of the items described in this section.
Accordingly, Employee agrees that during the term of this Agreement, or
afterwards, he will not disclose, or permit or encourage anyone who is not an
employee of the Company 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.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he 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 the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
13. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
14. 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 failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, 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 agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
15. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
14
16. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
17. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
18. 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.
19. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
To Employee:
Xxxxxxx X. Xxxxx
0000 Xxx Xxxxxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
20. 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.
15
IN WITNESS WHEREOF the parties have executed this Employment
Agreement as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxx, XX
------------------------------------
Its: Chairman and Chief Executive Officer
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------
16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and XXXXXX X. XXXXXX (the "Employee"), and supersedes any
prior employment agreement entered into between the parties. In consideration
of the mutual covenants and agreements set forth herein, the parties agree as
follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the General Counsel and Executive Vice President of the
Company, and the Employee accepts such employment and agrees to perform such
reasonable responsibilities and duties commensurate with aforesaid position, as
directed by the Chief Executive Officer and as set forth in the Articles of
Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $240.000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the
Company's other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
17
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $7,500 for each full
percentage point the Company's return on equity exceeds 10% (based on equity
as of the beginning of the year being measured). Return on equity shall be
determined by dividing net income before extraordinary items by stockholders'
equity as of the beginning of the year being measured. Any fractional
percentage point increase shall be applied to $7,500 to determine the amount of
such bonus ( for example, an 11.5% return on equity would result in a $11,250
bonus). Said bonus shall be paid no later than March 31st of each year and is
fully vested event of a non-renewal of this agreement or is vested pro-rata in
the event of a termination of this Agreement other than for cause. The Board
may additionally, in its sole discretion, grant to Employee an annual merit
bonus based upon Employee's performance during the preceding year and any other
factors the Board considers relevant.
(f) Options. Executive and the Company executed a letter
entitled "Terms of Employment" under which Executive received certain options
and the right to earn certain options (the "Letter "). A copy of the Letter is
attached hereto as exhibit "A". Executive shall retain the right to the
options and future grants of options as referenced in paragraphs 2, 3, 4, and 6
of the Letter, as such rights are expressed in the Letter. Executive shall
also continue to have the right to represent Xxxx X. Xxxxxxx as set forth in
paragraph 5 of the Letter.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall
18
continue to pay to the Employee the minimum base salary for the unexpired term
of this Agreement and a prorated bonus in a lump sum or as otherwise directed
by Employee. If the Employee terminates hereunder, the Company shall be
obligated to pay the Employee the minimum base compensation set forth in
Section 3 due him through the date of termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by paying
Employee the minimum base salary without offset for the remainder of the term
of this Agreement in a lump sum or as otherwise directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board cease for any reason to constitute at least
a majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
19
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. 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.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that
20
relates to purchasing, sales, customers, marketing, the Company's financial
position and financing arrangements. Employee agrees that all such information
is proprietary or confidential or constitutes trade secrets and is the sole
property of the Company. Employee will keep confidential, and will not
reproduce, copy or disclose to any other person or firm, any such information
or any documents or information relating to the Company's methods, processes,
customers, accounts, analyses, systems, charts, programs, procedures,
correspondence, or records, or any other documents used or owned by the
Company, nor will Employee advise, discuss with or in any way assist any other
person or firm in obtaining or learning about any of the items described in
this section. Accordingly, Employee agrees that during the term of this
Agreement, or afterwards, he will not disclose, or permit or encourage anyone
who is not an employee of the Company 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.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he 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 the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Non-Competition After Employment Term. The parties
acknowledge that the Employee will acquire much 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 is engaged as of the date of execution of this Agreement is
national and very competitive and one in which few companies can successfully
compete. Competition by Employee in that business after this Agreement is
terminated would severely injure the Company. Accordingly, until two (2) years
after this Agreement is terminated or Employee leaves the employment of the
Company for any reason whatsoever, except as otherwise stated hereinbelow,
Employee agrees (a) not to become an employee, consultant, advisor, principal,
partner or substantial shareholder of any firm or business that in any way
competes with the Company or its affiliates in any of their presently existing
or then existing products and markets and (b) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer of the Company or any of its affiliates. Notwithstanding
any of the foregoing provisions to the contrary, Employee shall not be subject
to the restrictions set forth in this Section 12 under the following
circumstances:
(a) When Employee leaves the employment of the Company as
a result of termination by the Company without cause;
(b) When Employee is terminated as a result of the
Company's failure to renew his employment agreement; or
21
(c) When Employee leaves the employment of the Company
for Good Reason pursuant to section 8 above.
13. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
14. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
15. 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 failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, 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 agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
16. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
17. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
18. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
19. 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
22
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.
20. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
President
To Employee:
Xxxxxx X. Xxxxxx
00000 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
21. Waiver of Breach. The waiver by any party of any provisions
of this Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
23
IN WITNESS WHEREOF the parties have executed this Employment
Agreement as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its: President
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------
24
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of January 1,
1996, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and XXXX X. XXXXXX (the "Employee"), and supersedes any prior
employment agreement entered into between the parties. In consideration of the
mutual covenants and agreements set forth herein, the parties agree as follows:
l. Employment and Duties. Subject to the terms and conditions of
this Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the Chief Financial Officer of the Company, and the
Employee accepts such employment and agrees to perform such reasonable
responsibilities and duties commensurate with aforesaid position, as directed
by the Chief Executive Officer and as set forth in the Articles of
Incorporation and the Bylaws of the Company.
2. Term. The term of this Agreement shall be for a period of one
(1) year commencing on the date hereof and continuing for one (1) years until
January 1, 1997, subject to termination as set forth in Section 7 hereof.
3. Salary. During the term of this Agreement, the Company shall
pay Employee a minimum base annual salary, before deducting all applicable
withholdings, of $240.000.00 per year, payable at the times and in the manner
dictated by the Company's standard payroll policies. Such base salary may be
periodically reviewed and increased at the discretion of the Chief Executive
Officer and/or the Compensation Committee of the Board of Directors to reflect
among other matters cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any
executive bonus, pension, deferred compensation and stock option plans which
the Company may from time to time make available to Employee upon mutual
agreement, the Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the Company's
other top executives.
(b) Company shall pay Employee's initiation and
membership dues in a social and/or recreational club as deemed necessary and
appropriate by Employee to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be obligated to pay
for any of Employee's personal purchases and expenses at such clubs.
(c) Company shall provide medical and insurance coverage
to Employee and his dependents commencing on the date of execution hereof and
so long as this Agreement and all renewals of same are in force and effect.
25
(d) Supplemental disability insurance sufficient to
provide two-thirds of pre-disability base salary as base salary has been
defined in Section 3.
(e) An annual bonus equal to $7,500 for each full
percentage point the Company's return on equity before extraordinary items
exceeds 10% (based on equity as of the beginning of the year being measured).
Any fractional percentage point increase shall be applied to $7,500 to
determine the amount of such bonus ( for example, an 11.5% return on equity
would result in a $11,250 bonus). Said bonus shall be paid no later than March
31st of each year. The Board may additionally, in its sole discretion, grant
to Employee an annual merit bonus based upon Employee's performance during the
preceding year and any other factors the Board considers relevant.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of this Agreement, the
Employee shall be entitled to reasonable vacation periods with pay consistent
with his positions with the Company. In addition, Employee shall be entitled
to such holidays consistent with the Company's standard policies or as the
Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and
benefits provided herein, the Company shall, upon receipt of appropriate
documentation, reimburse Employee each month for his reasonable travel,
lodging, entertainment, promotion and other ordinary and necessary business
expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event the
Company shall be obligated to pay the Employee that portion of the minimum base
compensation set forth in Section 3 due him through the date of termination.
Cause shall be limited to gross and willful neglect of duties or criminal or
other illegal activities as determined by a court of competent jurisdiction.
(b) Without Cause. Either party may terminate this
Agreement immediately without cause by giving written notice to the other. If
the Company terminates hereunder, it shall continue to pay to the Employee the
minimum base salary for the unexpired term of this Agreement and a prorated
bonus in a lump sum or as otherwise directed by Employee. If the Employee
terminates hereunder, the Company shall be obligated to pay the Employee the
minimum base compensation set forth in Section 3 due him through the date of
termination.
(c) Disability. If the Employee fails to perform his
duties hereunder on account of illness of other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by
26
paying Employee the minimum base salary without offset for the remainder of the
term of this Agreement in a lump sum or as otherwise directed by Employee.
(d) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's legal
representatives shall be entitled to receive the base salary for the remainder
of the term of this Agreement in a lump sum or as otherwise directed by
Employee.
(e) Effect of Termination. Termination for any cause
shall not constitute a waiver of the Company's rights under this Agreement nor
a release of Employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
8. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger, or (y) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved any plan or proposal for the liquidation or dissolution of
the Company, or (iii) any "person" (such as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who on the date hereof is a director or
officer of the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities, or (iv) during any period of two (2) consecutive years during the
term of this Agreement, individuals who at the beginning of such period
constitute the board cease for any reason to constitute at least a majority
thereof, unless the election of each director who was not a director at the
beginning of such period has been approved in advance by directors representing
at least two-thirds of the directors then in office who were directors at the
beginning of the period. Employee may only terminate this Agreement due to a
change in control of the Company during the period commencing 60 days and
expiring 365 days after such change in control.
(b) If the Employee shall terminate his employment for Good
Reason, or if, after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this Agreement or pursuant to
section 7(b), then:
(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
27
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay as severance pay to the Employee an amount
equal to the product of (A) the Employee's annual salary rate in effect as of
the date of termination plus the total bonus paid or payable to the Employee
for the most recently ended calendar year, multiplied by (B) the greater of the
number of years (including partial years) remaining in the term of employment
hereunder or the number 2, such payment to be made in a lump sum on or before
the fifth day following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 2, all employee benefit plans and programs in which the executive
was entitled to participate immediately prior to the date of termination
provided that the Employee's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Employee's participation in any such plan or program is prohibited, the Company
shall arrange to provide the Employee with benefits substantially similar to
those which the Employee would otherwise have been entitled to receive under
such plans and programs from which his continued participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 8 or section 7(b) above by seeking
other employment or otherwise, nor shall any compensation or other payments
received by the Employee after the date of termination reduce any payments due
under this section 8 or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
9. 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.
10. Confidential Information. Employee acknowledges that in his
capacity as an employee of the Company he will occupy a position of trust and
confidence, and he further acknowledges that he will have access to and learn
much information about the Company and its operations that is confidential or
not generally known in the industry including, without limitation, information
that relates to purchasing, sales, customers, marketing, the Company's
financial position and financing arrangements. Employee agrees that all such
information is proprietary or confidential or constitutes trade secrets and is
the sole property of the Company. Employee will keep confidential, and will
not reproduce, copy or disclose to any other person or firm, any such
information or any documents or information relating to the Company's methods,
processes, customers, accounts, analyses, systems, charts, programs,
procedures, correspondence, or records, or any other documents used or owned
28
by the Company, nor will Employee advise, discuss with or in any way assist any
other person or firm in obtaining or learning about any of the items described
in this section. Accordingly, Employee agrees that during the term of this
Agreement, or afterwards, he will not disclose, or permit or encourage anyone
who is not an employee of the Company 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.
11. Non-Competition During Employment Term. Employee agrees that
during the term of his employment by the Company, he will devote substantially
all his business time and effort to and give undivided loyalty to the Company.
He will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with the Company or its affiliates, nor solicit,
or in any other manner work for or assist any business which is competitive
with the Company or its affiliates. During the term of this Agreement, he 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 the Company or any other person
for the purpose of organizing any such competitive business activity.
12. Non-Competition After Employment Term. The parties
acknowledge that the Employee will acquire much 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 is engaged as of the date of execution of this Agreement is
national and very competitive and one in which few companies can successfully
compete. Competition by Employee in that business after this Agreement is
terminated would severely injure the Company. Accordingly, until two (2) years
after this Agreement is terminated or Employee leaves the employment of the
Company for any reason whatsoever, except as otherwise stated hereinbelow,
Employee agrees (a) not to become an employee, consultant, advisor, principal,
partner or substantial shareholder of any firm or business that in any way
competes with the Company or its affiliates in any of their presently existing
or then existing products and markets and (b) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer of the Company or any of its affiliates. Notwithstanding
any of the foregoing provisions to the contrary, Employee shall not be subject
to the restrictions set forth in this Section 12 under the following
circumstances:
(a) When Employee leaves the employment of the Company as
a result of termination by the Company without cause;
(b) When Employee is terminated as a result of the
Company's failure to renew his employment agreement; or
(c) When Employee leaves the employment of the Company
for Good Reason pursuant to section 8 above.
13. Return of Company Documents. Upon termination of this
Agreement, Employee shall return immediately to the Company all records and
documents of or pertaining to the Company and shall not make or retain any copy
or extract of any such record or document.
29
14. Improvements and Inventions. Any and all improvements or
inventions which Employee may conceive, make or participate in during the
period of his employment shall be the sole and exclusive property of the
Company. Employee will, whenever requested by the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to
apply for and obtain patents for improvements or inventions or in order to
assign and convey to Company the sole and exclusive right, title and interest
in and to such improvements, inventions, patents or applications.
15. 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 failure of the
Employee to abide by its terms and conditions nor will money damages adequately
compensate for such injury. It is, therefore, agreed between the paries that
in the event of breach by Employee of any of his agreements contained in this
Agreement, 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 agrees that this section shall survive the
termination of his employment and he shall be bound by its terms and at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein contained shall
in any way limit or exclude any other right granted by law or equity to the
Company.
16. Amendment. This Agreement contains, and its terms constitute,
the entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
17. Governing Law. California law shall govern the construction
and enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be in courts located in California.
18. Attorneys' Fees. If any party finds it necessary to employ
legal counsel or to bring an action at law or other proceedings against the
other party to enforce any of the terms hereof, the party prevailing in any
such action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs all as determined by the court and not a
jury.
19. 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
30
otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants in this Agreement.
20. Notices. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three (3) days after being sent by United States certified mail,
postage prepaid, with return receipt requested, to the parties at their
respective addresses set forth below:
To the Company:
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
To Employee:
Xxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
21. 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.
31
IN WITNESS WHEREOF the parties have executed this Employment Agreement
as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxxx X Xxxxx, XX
-----------------------
Its. Chairman and Chief Exective
Officer
XXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
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