EXHIBIT 10.70
EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is effective as of January
1, 2003 (the "Effective Date"), by and between FIDELITY NATIONAL INFORMATION
SOLUTIONS, INC. (NASDAQ: FNIS), a Delaware corporation (the "Company"), and
XXXXXXX 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 Chief Executive Officer of the Company, and the Employee
accepts such employment and agrees to perform such reasonable responsibilities
and duties commensurate with the aforesaid positions as set forth in the
Articles of Incorporation and the Bylaws of the Company and as directed by the
Company's Board of Directors. Any change in such titles or delegation of duties
inconsistent with such titles shall be deemed a Termination Without Cause under
Section 7(b) of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of three (3) years ending December 31, 2005,
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 $750,000
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 option 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) A grant of 300,000 options to vest one third per each year of
contract completed. Exercise price at close of market January 2,
2003
(b) The standard Company benefits enjoyed by the Company's other top
executives.
(c) Payment by the Company of the Employee's initiation and
membership dues in all social and/or recreational clubs 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
Page 1
obligated to pay for any of the Employee's personal purchases
and expenses at such club.
(d) 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.
(e) Provision by the Company of supplemental disability insurance
sufficient to provide two-thirds of the Employee's
pre-disability minimum base annual salary.
(f) An annual bonus for each calendar year included in this
Agreement based upon criteria to be established by the
Compensation Committee of the Board of Directors.
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. 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 persistent
failure to perform duties consistent with a commercially
reasonable standard of care; (ii) the willful neglect of duties;
(iii) criminal or other illegal activities involving dishonesty;
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 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)
Page 2
the total annual bonus paid, payable, or which would have been
payable to the Employee under this Agreement (had it been in
effect) for 2000 and payable in 2001 or (y) the highest bonus
paid for any year during which this Agreement was in effect
("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 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. If the Employee terminates under this Section 7(b),
then the Company shall be obligated to pay the Employee the
minimum annual 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 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) 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.
Page 3
(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, of 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.
(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 this 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
Page 4
termination plus the Base Year Bonus, multiplied by (B)
the number of years (including partial years) remaining
in the Term or the number 2 (two), 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 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 from which his continued participation is
prohibited.
(c) For purposes of this Section 8 and Section 7 hereof, the
Employee shall not be required to mitigate the amount of any
payment provided for in Sections 7 and 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 such Sections.
9. Indemnification for Taxes. The Company shall indemnify Employee for
any and all taxes, penalties, additions to tax and interest on tax deficiencies
of any kind (collectively, "Taxes") with respect to any and all payments and
benefits provided by this Agreement or other agreements with Employee which are
subject (if at all) to the excise tax (Excess Tax") pursuant to Section 4999 of
the Internal Revenue Code of 1986, as amended. This indemnification shall extend
to any and all Taxes with respect to any and all reimbursements hereunder such
that, on a net-after-tax basis, Employee is in the same position that Employee
would have been in if no payments made by Company to Employee had been subject
to the Excise Tax (and, therefore, no indemnification payments hereunder had
been necessary).
10. 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.
11. 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
Page 5
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 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 wil l 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 11. 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
along or with others, outside the scope of his duties and responsibilities with
the Company.
12. 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.
13. 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
herein below, the Employee agrees (i) 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 in any of its presently-existing or
then-exist ing 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 an 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 13 under the following circumstances:
Page 6
(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.
14. 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.
15. Other Employment and Location. Anything to the contrary hereinabove
notwithstanding, Company acknowledges that Employee also serves and will in the
future serve as a Director and/or Chairman of the Board of certain other
companies and will direct a reasonable portion of his time to fulfilling his
duties in such capacities. Company acknowledges that Employee serving as a
Director and/or Chairman of the Board of other companies shall not constitute a
violation of this Agreement or any provision hereof including but not limited to
Sections 11, 12 and 13, so long as Employee dedicates a reasonable amount of his
time to his duties hereunder. The Employee shall not be required to move from
Santa Xxxxxxx Count, California, to perform his duties hereunder during the Term
without his written consent.
16. 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 and 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.
17. 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 event
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 17 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
Company continues to conduct the same business or businesses as conducted during
the Term or
Page 7
any extensions thereof. Nothing herein contained shall in any way limit or
exclude any other right granted by law or equity to the Company.
18. 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.
19. 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 adjudicated in courts located in
California. This Agreement supercedes and replaces any prior agreements or
understandings between the parties with respect to the subject matter hereof.
20. 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.
21. 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 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 enfor cement by the Company of the covenants in this Agreement.
22. 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, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Executive Vice President
Page 8
To the Employee: Xxxxxxx X. Xxxxx
0000 Xxx Xxxxxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
23. 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.
IN WITNESS WHEREOF the parties have executed this Agreement to be
effective as of the date first set forth above.
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.
---------------------------------------------
By:
Its:
XXXXXXX X. XXXXX
---------------------------------------------
Page 9
