Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of November
11, 2004 (the "Effective Date"), by and between FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation (the "Company"), and XXXXX X. XXXXXXX (the
"Employee"). 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 Executive Vice President and the Employee accepts such
employment and agrees to perform such reasonable responsibilities and duties
commensurate with the aforesaid position as set forth in the Articles of
Incorporation and the Bylaws of the Company and as directed by the Company's
Chief Executive Officer and/or President.
2. Term. The term of this Agreement shall commence on the Effective
Date and shall continue for a period of three (3) years ending November 11,
2007, subject to prior termination as set forth in Section 7, below (the
"Term"). The Term may be extended at any time upon mutual agreement of the
parties.
3. Salary. During the Term, the Company shall pay the Employee a
minimum base annual salary, before deducting all applicable withholdings, of
$450,000 per year, payable at the times and in the manner dictated by the
Company's standard payroll policies. Such minimum base annual salary may be
periodically reviewed and increased (but not decreased) at the discretion of 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 options plans which the Company
may from time to time make available to the 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) Payment by the Company of the Employee's initiation and
membership dues in a social and/or recreational club as deemed
necessary and appropriate by the 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
club;
(c) Provision by the Company during the Term and any extensions
thereof to the Employee and his dependents of medical and
other insurance coverage under the Company's Executive Medical
Plan;
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(d) Provision by the Company of supplemental disability insurance
sufficient to provide two-thirds of the Employee's
pre-disability minimum base annual salary;
(e) An annual bonus for each calendar year included in this
Agreement calculated pursuant to a formula set by the
Compensation Committee of the Company's Board of Directors.
For the year 2004, the bonus formula is set forth on Exhibit A
attached hereto. The annual bonus shall be paid no later than
March 15th of the following year and is fully vested at the
end of each year in the event of a non-renewal of this
Agreement by the Company. Subject to Section 7 below, the
annual bonus shall be pro-rated for any partial employment
year.
The Company shall deduct from all compensation payable under this
Agreement to the 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 the Term and any extensions
thereof, the Employee shall be entitled to reasonable paid vacation periods
consistent with his positions with the Company and in accordance with the
Company's standard policies or as the Board of Directors may approve. In
addition, the 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 the 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 annual salary due him through
the date of termination. Cause shall be limited to (i) the
failure to perform duties consistent with a commercially
reasonable standard of care; (ii) the willful neglect of
duties; (iii) criminal or other illegal activities; or (iv) a
material breach of this Agreement.
(b) Without Cause. Either party may terminate this Agreement
immediately without cause by giving written notice to the
other.
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(i) If the Company terminates under this Section 7(b),
then it shall pay to the Employee an amount equal to
the product of (i) the Employee's minimum annual base
salary in effect as of the date of termination, plus
the greater of either (x) the highest bonus paid for
any year during which this Agreement was in effect,
or (y) Employee's minimum base salary in effect as of
the date of termination ("Base Year Bonus"), times
(ii) the number of years (including partial years)
remaining in the Term or the number 2 (two),
whichever is greater. The Company shall make such
payment in a lump sum on or before the fifth day
following the date of termination, or as otherwise
directed by the Employee. In addition, all options
and restricted stock granted to the Employee which
had not vested as of the date of termination
hereunder shall vest immediately and the Company
shall maintain in full force and effect for the
continued benefit of the Employee for the number of
years (including partial years) remaining in the
Term, 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 participation in any such plan or program
is prohibited, the Company shall, at its 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 for which his continued
participation is prohibited.
(ii) If Employee terminates under this Section 7(b), he
will only be entitled to his minimum annual base
salary due 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 consecutive months, then the Company shall have
the right upon written notice to the Employee to terminate
this Agreement without further obligation by paying the
Employee the minimum base annual salary, without offset, for
the remainder of the Term in a lump sum or as otherwise
directed by the Employee.
(d) Death. If the Employee dies during the Term, then this
Agreement shall terminate immediately and the Employee's legal
representatives shall be entitled to receive the minimum
annual base salary for the remainder of the Term in a lump sum
or as otherwise directed by the Employee's legal
representative.
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(e) Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in this Section 7 by
seeking other employment or otherwise, nor shall any
compensation or other payments received by the Employee after
this date of termination reduce any payments due under this
Section 7.
(f) Effect of Termination. Termination for any reason or for no
reason shall not constitute a waiver of the Company's rights
under this Agreement nor a release of the Employee from any
obligation hereunder except his obligation to perform his
day-to-day duties as an employee.
8. Severance Payment.
(a) The Employee may terminate his employment hereunder for "Good
Reason" which for purposes of this Agreement shall mean a
"change in control of the Company". A "change in control of
the Company", for purposes of this Agreement, shall be deemed
to have occurred if (i) there shall be consummated (x) any
consolidation or merger of the Company other than a
consolidation or merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger own
more than 50% of the voting securities 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 approve 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 Company, 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 or any extensions thereof,
individuals, who, at the beginning of such period, constitute
the Board of Directors, 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. The 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 terminates 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 the Agreement
or pursuant to Section 7(b), then:
(i) The Company shall pay the Employee his minimum base
annual salary due him through the date of
termination;
(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 to the Employee, an amount
equal to the product of (A) the Employee's minimum
base annual salary in effect as of the date of
termination plus the Base Year Bonus, multiplied by
(B) the number of years (including partial years)
remaining in the Term or the number two (2),
whichever is greater;
(iii) All options granted to the Employee which had not
vested as of the date of termination hereunder shall
vest immediately; and
(iv) The Company shall maintain in full force and effect,
for the continued benefit of the Employee for the
number of years (including partial years) remaining
in the Term, 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 participation in any such plan or program
is prohibited, the Company shall, at it'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 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.
(d) To the extent that any or all of the payments and benefits
provided for in this Agreement and pursuant to any other
agreements with Executive constitute "parachute payments"
within the meaning of Section 280G of the Internal Revenue
Code (the "Code") and, but for this Section 8(d), would be
subject to the excise tax imposed by
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Section 4999 of the Code, the aggregate amount of the payments
and benefits under this Agreement shall be reduced such that
the present value (as determined under the Code and applicable
regulations) of all payments constituting "parachute
payments", is equal to 2.99 times the Executive's "base
amount" (as defined in the Code).
9. Non-delegation of Employee's Rights. The obligations, rights and
benefits of the 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. The 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
substantial 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,
and the Company's financial position and financing arrangements. The Employee
agrees that all such information is proprietary or confidential, or constitutes
trade secrets and is the sole property of the Company. The Employee will keep
confidential, and will not reproduce, copy or disclose to any other person or
firm, any such information or 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 the Employee advise, discuss with or in any way assist any
other person, firm or entity in obtaining or learning about any of the items
described in this Section 10. Accordingly, the Employee agrees that during the
Term and at all times thereafter he will not disclose, or permit or encourage
anyone else to disclose, any such information nor will he utilize any such
information, either alone or with others, outside the scope of his duties and
responsibilities with the Company.
11. Non-Competition During Employment Term. The Employee agrees that,
during the Term and any extensions thereof, he will devote substantially all his
business time and effort, 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. In addition, during the Term and any extensions thereof, the
Employee will undertake no planning for or organization of any business activity
competitive with the work he performs as an employee of the Company, and the
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.
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12. Non-Competition After Employment Term. The parties acknowledge that
as an executive officer of the Company the Employee will acquire substantial
knowledge and information concerning the business of the Company as a result of
his employment. The parties further acknowledge that the scope of business in
which the Company is engaged as of the Effective Date is national and very
competitive and one in which few companies can successfully compete. Competition
by an executive officer such as the Employee in that business after this
Agreement is terminated would severely injure the Company. Accordingly, for a
period of one year after this Agreement is terminated or the Employee leaves the
employment of the Company for any reason whatsoever, except as otherwise stated
hereinbelow, the Employee agrees (i) not to become any employee, consultant,
advisor, principal, partner or substantial shareholder of any firm or business
that in any way competes with the Company in any of its presently-existing or
then-existing products and markets; and (ii) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer, or any employee of the Company. Notwithstanding any of the
foregoing provisions to the contrary, the Employee shall not be subject to the
restrictions set forth in this Section 12 under the following circumstances:
(a) If the Employee's employment with the Company is terminated by
the Company without cause;
(b) If the Employee's employment with the Company is terminated as
a result of the Company's unwillingness to extend the Term of
this Agreement; or
(c) If the 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 the Employee may make or participate in during the period of his
employment shall be the sole an exclusive property of the Company. The 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 the 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 a failure by the
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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 vent of a breach by the Employee of any of his obligations contained in this
Agreement, the Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel the Employee to
perform as agreed herein. The Employee agrees that this Section 15 shall survive
the termination of his employment and he shall be bound by its terms at all
times subsequent to the termination of his employment for so long a period as
the Company continues to conduct the same business or businesses as conducted
during the Term or any extensions thereof. 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 term constitute, the
entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement. This Agreement supercedes and
replaces any prior agreements or understandings between the parties with respect
to the subject matter hereof.
17. Governing Law. Florida law shall govern the construction and
enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be adjudicated in courts located in
Jacksonville, Florida.
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 or other 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
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of the 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 the 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 of this Agreement.
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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.
000 Xxxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, XX
Chief Executive Officer
To the Employee:
Xxxxx Xxxxxxx
000 Xxxxx Xxxx Xx. X
Xxxxx Xxxxx Xxxxx, XX 00000
21. Waiver of Breach. The waiver by any party of the 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 Agreement to be
effective as of the date first set forth above.
FIDELITY NATIONAL FINANCIAL, INC.
By:
---------------------------------
Its:
---------------------------------
XXXXX X. XXXXXXX
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