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EXHIBIT 10.1.3
Xxxxxxx Employment Agreement (page 1)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of September 15,
1997, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
(the "Company"), and XXXXX X. XXXXXXX (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:
1. Employment and Duties. Subject to the terms and conditions of this
Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the Chief Financial Officer 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 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 three (3)
years commencing on the date hereof and continuing for three (3) years until
September 15, 2000, 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 $200,000 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.
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Xxxxxxx Employment Agreement (page 2)
(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 dependants commencing on the date of the 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 $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 stockholder's 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 in the event of a
non-renewal of this Agreement or is vested prorata in the event you are employed
for a partial year (for example, the first year for which you will be entitled
to a bonus, you will have been employed for 3 and 1/2 months or 29% of the year
and will thus received 29% of the annual bonus amount calculated as set forth
above for 1997) or 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.
(f) The Company will cover the expenses of Employee's move to Santa
Xxxxxxx County. Such expenses will include moving expenses as charged by a
moving company selected by the Company, title and closing costs for the sale of
your current home, and any real estate commissions as may be due on the sale of
your current home.
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Xxxxxxx Employee Agreement (page 3)
For the period from September 15, 1997 through June 30, 1998, the Company will
reimburse Employee for apartment rental in the amount of $500.00 per month.
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 pay to the Employee an amount equal to the
product of (A) the Employee's minimum base 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 or as otherwise directed by
Employee. 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 Employee was entitled to
participate immediately prior to the date of termination provided that the
Employee's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Employee's
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Xxxxxxx Employment Agreement (page 4)
participation in any such plan or program is prohibited, the Company shall, at
the Company's expense, arrange to provide the Employee with benefits
substantially similar to those which the employee would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is prohibited. If the Employee terminates hereunder, the Company
shall be obligated to pay the Employee the minimum base compensation and a
prorated minimum annual bonus as set forth in Sections 3 and 4 due him through
the date of termination.
(c) Disability. If the Employee fails to perform his duties
hereunder on account of illness or 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 and the minimum annual bonus without offset
prorated through the date of termination in a lump sum or as otherwise directed
by Employee's legal representative.
(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
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Xxxxxxx Employment Agreement (page 5)
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, (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 thereof, 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:
(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 severanace pay to the Employee an amount equal to the
product of (A) the Employee's minimum base annual salary rate in effect as of
the date of termination plus the total bonus which would have been paid to
Employee had he been an employee of the Company for all of 1997 and had he been
entitled to a bonus calculated pursuant to paragraph 4(e) above, 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 folowing the date of termination, or as
otherwise directed by Employee; 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
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Xxxxxxx Employment Agreement (page 6)
(including partial years) remaining in the term of employment hereunder or the
number 2, all employee benefit plans and programs in which the Employee was
entitled to participate immediately prior to the date of termination provided
that the Employee's continued participation is possible under the general terms
and provisions of such plans and programs. In the event that the Employee
participation in any such plan or program is prohibited, the Company shall, at
the Company's expense, arrange to provide the Employee with benefits
substantially similar to those which the Employee would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is prohibited.
(c) 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" (defied 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 purchase, 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
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Xxxxxxx Employment Agreement (page 7)
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 employoment 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
solict any person or busienss 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 foreoging 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 of the Company without cause;
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Xxxxxxx Employment Agreement (page 8)
(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.
14. Improvement 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 parties that, in the event of
a 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 time 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 conducted 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.
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Xxxxxxx Employment Agreement (9)
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 courts located in California.
18. Attorneys Fees. If any party finds it necessary to employ legal
counsel or to bring an action a law or other proceedings against the other party
to enforce any of the terms hereof, the party prevailing in any such action or
other proceedings 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 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.
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President
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Xxxxxxx Employment Agreement (page 10)
To Employee:
Xxxxx X. Xxxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000
21. Waiver of Breach. The waiver by any part 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.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
Its: Executive Vice President
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
