Exhibit (10)(ee)
AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
EXECUTIVE FORM
This AMENDED AND
RESTATED CHANGE IN CONTROL AGREEMENT is entered into as of the
1 st day of January, 2009 (this
“ Agreement ”), by and between THE FIRST
AMERICAN CORPORATION, a California corporation (the “
Company ”), and [NAME] (the “ Executive
”).
W I T N E S
S E T H :
WHEREAS, the Compensation Committee
(the “ Committee ”) of the Board of Directors
(the “Board”) of the Company has determined that it is
in the best interests of the Company, its subsidiaries, and the
Company’s shareholders to assure that the Company and its
subsidiaries will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change
in Control (as defined below) of the Company;
WHEREAS, the Committee believes it
is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change in Control and to encourage the
Executive’s full attention and dedication to the Company and
its subsidiaries currently and in the event of any threatened or
pending Change in Control, and to provide the Executive with
compensation and benefits arrangements upon a Change in Control
which ensure that the compensation and benefits expectations of the
Executive will be satisfied and which are competitive with those of
other corporations; and
WHEREAS, the Company and the
Executive accordingly desire to enter into this Agreement on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of
the premises and mutual covenants set forth herein, it is hereby
agreed by and between the parties as follows:
1. Term of Agreement . This
Agreement shall commence on the date hereof and shall continue
through December 31, 2009 (the “ Original Term
”); provided , however , that on such date and
on each December 31 thereafter, the Original Term of this
Agreement shall automatically be extended for one
(1) additional year (each, an “ Extended Term
”) unless, not later than the preceding January 1 either
party shall have given notice that such party does not wish to
extend the term of this Agreement beyond the Original Term and any
Extended Term; and provided , further , that if a
Change in Control (as defined in paragraph 3 below) shall have
occurred during the Original Term or any Extended Term of this
Agreement, the term of this Agreement shall continue for a period
of thirty-six (36) calendar months beyond the calendar month
in which such Change in Control occurs (the Original Term, each
Extended Term, if any, and such thirty-six (36) month period,
collectively, the “ Term ”).
2. Employment After a Change in
Control . If the Executive is in the employ of the Company
(which for this purpose shall also include any subsidiary of the
Company) on the date of a Change in Control, the Company hereby
agrees to continue the Executive in its employ
(and/or, in the case of any subsidiary of the
Company, the employ of such subsidiary) for the period commencing
on the date of the Change in Control and ending on the last day of
the Term of this Agreement. During the period of employment
described in the foregoing provision of this paragraph 2 (the
“ Employment Period ”), the Executive shall hold
such position with the Company (which for this purpose shall also
include any subsidiary of the Company) and exercise such authority
and perform such executive duties as are commensurate with the
Executive’s position, authority, and duties immediately prior
to the Change in Control. The Executive agrees that during the
Employment Period the Executive shall devote full business time
exclusively to the executive duties described herein and perform
such duties faithfully and efficiently; provided ,
however , that nothing in this Agreement shall prevent the
Executive from voluntarily resigning from employment upon sixty
(60) days’ written notice to the Company under
circumstances which do not constitute a Termination (as defined
below in paragraph 5).
3. Change in Control . For
purposes of this Agreement, a “ Change in Control
” means the happening of any of the following:
(a) The consummation of a merger or
consolidation of the Company with or into another entity or any
other corporate reorganization, if fifty percent (50%) or more
of the combined voting power of the continuing or surviving
entity’s securities outstanding immediately after such
merger, consolidation, or other reorganization is owned by persons
who were not shareholders of the Company immediately prior to such
merger, consolidation, or other reorganization.
(b) The sale, transfer, or other
disposition of all or substantially all of the Company’s
assets or the complete liquidation or dissolution of the
Company.
(c) A change in the composition of
the Board occurring within a two (2) year period, as a result
of which fewer than a majority of the directors are Incumbent
Directors. “ Incumbent Directors ” shall mean
directors who either: (i) are directors of the Company as of
the date of this Agreement, or (ii) are elected, or nominated
for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or
nomination (but shall not include an individual not otherwise an
Incumbent Director whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election
of directors to the Company).
(d) Any transaction as a result of
which any person or group is or becomes the “ beneficial
owner ” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the
Company representing at least twenty-five percent (25%) of the
total voting power of the Company’s then outstanding voting
securities. For purposes of this paragraph, the term “
person ” shall have the same meaning as when used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
but shall exclude: (i) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or of a
subsidiary of the Company; (ii) so long as a person does not
thereafter increase such person’s beneficial ownership of the
total voting power represented by the Company’s then
outstanding voting securities, a person whose beneficial ownership
of the total voting power represented by the Company’s
then
-2-
outstanding voting securities
increases to twenty-five percent (25%) or more as a result of
the acquisition of voting securities of the Company by the Company
which reduces the number of such voting securities then
outstanding; or (iii) so long as a person does not thereafter
increase such person’s beneficial ownership of the total
voting power represented by the Company’s then outstanding
voting securities, a person that acquires directly from the Company
securities of the Company representing at least twenty-five percent
(25%) of the total voting power represented by the
Company’s then outstanding voting securities.
A transaction shall not constitute a
Change in Control if its sole purpose is to change the state of the
Company’s incorporation or to create a holding company that
will be owned in substantially the same proportions by the persons
who held the Company’s securities immediately before such
transaction.
4. Compensation During the
Employment Period . During the Employment Period, the Executive
shall be compensated as follows:
(a) The Executive shall receive an
annual salary which is not less than his or her annual salary
immediately prior to the Employment Period and shall be eligible to
receive an increase in annual salary which is not materially less
favorable to the Executive than increases in salary granted by the
Company for executives with comparable duties;
(b) The Executive shall be eligible
to participate in short-term and long-term cash-based incentive
compensation plans which, in the aggregate, provide bonus
opportunities which are not materially less favorable to the
Executive than the greater of: (i) the opportunities provided
by the Company for executives with comparable duties; and
(ii) the opportunities provided to the Executive under all
such plans in which the Executive was participating prior to the
Employment Period;
(c) The Executive shall be eligible
to participate in stock option, performance awards, restricted
stock, and other equity-based incentive compensation plans on a
basis not materially less favorable to the Executive than that
applicable: (i) to the Executive immediately prior to the
Employment Period; or (ii) to other executives of the Company
with comparable duties; and
(d) The Executive shall be eligible
to receive employee benefits (including, but not limited to,
tax-qualified and nonqualified savings plan benefits, medical
insurance, disability income protection, life insurance coverage,
and death benefits) and perquisites (including, without limitation,
a Company vehicle and Company-paid or assisted membership dues)
which are not materially less favorable to the Executive than:
(i) the employee benefits and perquisites provided by the
Company to executives with comparable duties; or (ii) the
employee benefits and perquisites to which the Executive would be
entitled under the Company’s employee benefit plans and
perquisites as in effect immediately prior to the Employment
Period.
-3-
5. Termination . For purposes
of this Agreement, the term “ Termination ”
shall mean: (a) termination of the employment of the Executive
during the Employment Period by the Company for any reason other
than death, Disability (as defined below), or Cause (as defined
below); (b) termination of the employment of the Executive
during the Window Period by the Executive for any reason
whatsoever; or (c) termination of the employment of the
Executive during the Employment Period (other than during the
Window Period) by the Executive for Good Reason (as defined
below).
Notwithstanding anything in this
Agreement to the contrary, if: (a) the Executive’s
employment is terminated within six (6) months prior to the
actual occurrence of a Change in Control for reasons that would
constitute a Termination if it had occurred following a Change in
Control; (b) the Executive reasonably demonstrates that such
termination (or Good Reason event) was at the request of a third
party who had indicated an intention or had taken steps reasonably
calculated to effect a Change in Control; and (c) a Change in
Control involving such third party (or a party competing with such
third party to effectuate a Change in Control) does occur, then for
purposes of this Agreement, the date immediately prior to the date
of such termination of employment or event constituting Good Reason
shall be treated as a Change in Control and such termination shall
be treated as a Termination. For purposes of determining the timing
of payments and benefits to the Executive under this Agreement as a
result of this paragraph, payment shall be made in accordance with
the provisions of Section 6(a).
The date of the Executive’s
Termination under this paragraph 5 shall be the date of the
Executive’s “Separation from Service” (as defined
under Section 409A of the Internal Revenue Code (the
“Code”)).
For purposes of this Agreement,
“ Disability ” means such physical or mental
disability or infirmity of the Executive which, in the opinion of a
competent physician, renders the Executive unable to perform
properly his or her duties set forth in paragraph 2 of this
Agreement, and as a result of which the Executive is unable to
perform such duties for six (6) consecutive calendar months or
for shorter periods aggregating one hundred eighty
(180) business days in any twelve (12) month period. For
purposes of this paragraph, a competent physician shall be a
physician mutually agreed upon by the Executive and the Board. If a
mutual agreement cannot be reached, the Executive shall designate a
physician and the Board shall designate a physician and these two
physicians shall select a third physician who shall be the
“competent physician.”
For purposes of t
