EXHIBIT 10.84
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of March
20, 2003 (the "Effective Date"), by and between FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation (the "Company"), and XXXXXX X. XXXXX (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 Co-Chief Operating Officer
of the "Company" and President of Alltel Information Services, Inc., upon its
acquisition by the Company 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.
2. Term. The term of this Agreement shall commence on the
Effective Date and shall continue for a period of three (3) years ending March
20, 2006, 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
$600,000 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 rep-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 2003, 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. If the Company
terminated under this Section 7(b), then it shall continue to pay to the
Employee an amount equal to the produce of (i) the Employee's minimum annual
base salary in effect as of the date of termination, plus 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 times the
number one (1), whichever is higher ("Base Year Bonus"), times (ii) the number
of years (including partial years) remaining in the Term of the number of two
(2) 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, 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
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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 from which his
continued participation is prohibited. If the Employee terminates under this
Section 7(b), then the Company shall be obligated to pay the Employee the
minimum base salary 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
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 base 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.
(e) No 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 the 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
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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.
(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 received 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 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
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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 g 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.
12. Non-Competition After Employment Term. The parties acknowledge
that 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,
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the Employee agree (1) 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
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 time
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
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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. California law shall govern the construction
and enforcement of this Agreement and the parties agree that nay litigation
pertaining to this Agreement shall be adjudicated in courts located in
California.
18. Attorneys' Fees. If any party finds it necessary to employee
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.
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 Xxxx
Xxxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Executive Vice President
To the Employee:
Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxx, XX 00000
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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.
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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 /s/ Xxxxx X. Xxxxxxxx
_______________________________
Its: Executive Vice President
_____________________________
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
_______________________________
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