AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is
effective as of July 2, 2008 (the “Effective
Date”), by and between FIDELITY NATIONAL FINANCIAL,
INC. , a Delaware corporation (the “Company”), and
WILLIAM P. FOLEY, II (the “Employee”). In
consideration of the mutual covenants and agreements set forth
herein, the parties agree as follows:
1.
Purpose . This Agreement amends and restates, in its
entirety, the obligations of the parties under the agreement
between the Company and the Employee, dated as of October 24,
2006 (the “Prior Agreement”). The purpose of this
Agreement is to recognize the Employee’s significant
contributions to the overall financial performance and success of
the Company and to provide a single, integrated document which
shall provide the basis for the Employee’s continued
employment by the Company.
2.
Employment and Duties . Subject to the terms and conditions
of this Agreement, the Company employs the Employee to serve in an
executive capacity as Chairman. The Employee accepts such
employment and agrees to undertake and discharge the duties,
functions and responsibilities set forth in Appendix A
attached hereto. In addition to the duties and responsibilities
specifically assigned to the Employee pursuant to Appendix A,
the Employee will perform such other duties and responsibilities as
are from time to time assigned to the Employee by the Board of
Directors of the Company (the “Board”) in writing,
consistent with the terms and provisions of this
Agreement.
3.
Term . The term of this Agreement shall commence on the
Effective Date and shall continue for a period of three
(3) years ending on the third anniversary of the Effective
Date or, if later, ending on the last day of any extension made
pursuant to the next sentence, subject to prior termination as set
forth in Section 8 (such term, including any extensions
pursuant to the next sentence, the “Employment Term”).
The Employment Term shall be extended automatically for one
(1) additional year on the first anniversary of the Effective
Date and for an additional year each anniversary thereafter unless
and until either party gives written notice to the other not to
extend the Employment Term before such extension would be
effectuated. Notwithstanding any termination of the Employment Term
or the Employee’s employment, the Employee and the Company
agree that Sections 8 through 10 shall remain in effect until
all parties’ obligations and benefits are satisfied
thereunder.
4.
Salary . During the Employment Term, the Company shall pay
the Employee an annual base salary, before deducting all applicable
withholdings, of no less than $600,000 per year, payable at the
time and in the manner dictated by the Company’s standard
payroll policies. Such minimum annual base salary may be
periodically reviewed and increased (but not decreased without the
Employee’s express written consent) at the discretion of the
Board or the Compensation Committee of the Board (the
“Committee”) to reflect, among other matters, cost of
living increases and performance results (such annual base salary,
including any increases pursuant to this Section 4, the
“Annual Base Salary”).
5. Other
Compensation and Fringe Benefits . In addition to any executive
bonus, pension, deferred compensation and long-term incentive plans
which the Company or an affiliate
of the Company
may from time to time make available to the Employee, the Employee
shall be entitled to the following during the Employment
Term:
|
|
(a)
|
|
the
standard Company benefits enjoyed by the Company’s other top
executives as a group;
|
|
|
|
|
|
|
|
(b)
|
|
medical and other insurance coverage
(for the Employee and any covered dependents) provided by the
Company to its other top executives as a group;
|
|
|
|
|
|
|
|
(c)
|
|
supplemental disability insurance
sufficient to provide two-thirds of the Employee’s
pre-disability Annual Base Salary;
|
|
|
|
|
|
|
|
(d)
|
|
an
annual incentive bonus opportunity under the Company’s annual
incentive plan (“Annual Bonus Plan”) for each calendar
year included in the Employment Term, with such opportunity to be
earned based upon attainment of performance objectives established
by the Committee (“Annual Bonus”). The Employee’s
target Annual Bonus under the Annual Bonus Plan shall be no less
than 250% of the Employee’s Annual Base Salary (collectively,
the target and maximum are referred to as the “Annual Bonus
Opportunity”). The Employee’s Annual Bonus Opportunity
may be periodically reviewed and increased (but not decreased
without the Employee’s express written consent) at the
discretion of the Committee. The Annual Bonus shall be paid no
later than the March 15 th first following the calendar year
to which the Annual Bonus relates. Unless provided otherwise herein
or the Board determines otherwise, no Annual Bonus shall be paid to
the Employee unless the Employee is employed by the Company, or an
affiliate thereof, on the Annual Bonus payment date; and
|
|
|
|
|
|
|
|
(e)
|
|
participation in the Company’s
equity incentive plans.
|
6.
Vacation . For and during each calendar year within the
Employment Term, the Employee shall be entitled to reasonable paid
vacation periods consistent with the Employee’s position and
in accordance with the Company’s standard policies, or as the
Board may approve. In addition, the Employee shall be entitled to
such holidays consistent with the Company’s standard policies
or as the Board or the Committee may approve.
7.
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 to the extent such
reimbursement is permitted under the Company’s expense
reimbursement policy.
8.
Termination of Employment . The Company or the Employee may
terminate the Employee’s employment at any time and for any
reason in accordance with Subsection 8(a) below. The Employment
Term shall be deemed to have ended on the last day of the
Employee’s employment. The Employment Term shall terminate
automatically upon the Employee’s death.
|
|
(a)
|
|
Notice of Termination
. Any purported
termination of the Employee’s employment (other than by
reason of death) shall be communicated by written
|
2
|
|
|
|
Notice of
Termination (as defined herein) from one party to the other in
accordance with the notice provisions contained in Section 25.
For purposes of this Agreement, a “Notice of
Termination” shall mean a notice that indicates the Date of
Termination (as that term is defined in Subsection 8(b)) and, with
respect to a termination due to Disability (as that term is defined
in Subsection 8(e)), Cause (as that term is defined in Subsection
8(d)), or Good Reason (as that term is defined in Subsection 8(f)),
sets forth in reasonable detail the facts and circumstances that
are alleged to provide a basis for such termination. A Notice of
Termination from the Company shall specify whether the termination
is with or without Cause or due to the Employee’s Disability.
A Notice of Termination from the Employee shall specify whether the
termination is with or without Good Reason.
|
|
|
(b)
|
|
Date of Termination
. For purposes of this
Agreement, “Date of Termination” shall mean the date
specified in the Notice of Termination (but in no event shall such
date be earlier than the thirtieth (30 th ) day following the date the Notice
of Termination is given) or the date of the Employee’s
death.
|
|
|
|
|
|
|
|
(c)
|
|
No Waiver . The failure to set forth any fact
or circumstance in a Notice of Termination, which fact or
circumstance was not known to the party giving the Notice of
Termination when the notice was given, shall not constitute a
waiver of the right to assert such fact or circumstance in an
attempt to enforce any right under or provision of this
Agreement.
|
|
|
|
|
|
|
|
(d)
|
|
Cause . For purposes of this Agreement, a
termination for “Cause” means a termination by the
Company based upon the Employee’s: (i) persistent
failure to perform duties consistent with a commercially reasonable
standard of care (other than due to a physical or mental impairment
or due to an action or inaction directed by the Company that would
otherwise constitute Good Reason); (ii) willful neglect of
duties (other than due to a physical or mental impairment or due to
an action or inaction directed by the Company that would otherwise
constitute Good Reason); (iii) conviction of, or pleading nolo
contendere to, criminal or other illegal activities involving
dishonesty; (iv) material breach of this Agreement; or
(v) failure to materially cooperate with or impeding an
investigation authorized by the Board. The Employee’s
termination for Cause shall be effective when and if a resolution
is duly adopted by an affirmative vote of at least
3
/ 4 of the Board (less the Employee),
stating that, in the good faith opinion of the Board, the Employee
is guilty of the conduct described in the Notice of Termination and
such conduct constitutes Cause under this Agreement;
provided , however , that the Employee shall have
been given reasonable opportunity (A) to cure any act or
omission that constitutes Cause if capable of cure and (B),
together with counsel, during the thirty (30) day period
following the receipt by the Employee of the Notice of Termination
and prior to the adoption of the Board’s resolution, to be
heard by the Board.
|
|
|
|
|
|
|
|
(e)
|
|
Disability . For purposes of this Agreement, a
termination based upon “Disability” means a termination
by the Company based upon the Employee’s entitlement
to
|
3
|
|
|
|
long-term
disability benefits under the Company’s long-term disability
plan or policy, as the case may be, as in effect on the Date of
Termination.
|
|
|
(f)
|
|
Good Reason . For purposes of this Agreement, a
termination for “Good Reason” means a termination by
the Employee during the Employment Term based upon the occurrence
(without the Employee’s express written consent) of any of
the following:
|
|
|
(i)
|
|
a
material diminution in the Employee’s position or title, or
the assignment of duties to the Employee that are materially
inconsistent with the Employee’s position or
title;
|
|
|
|
|
|
|
|
(ii)
|
|
a
material diminution in the Employee’s Annual Base Salary or
Annual Bonus Opportunity;
|
|
|
|
|
|
|
|
(iii)
|
|
within six (6) months
immediately preceding or within two (2) years immediately following
a Change in Control: (A) a material adverse change in the
Employee’s status, authority or responsibility ( e.g.
, the Employee no longer serving as Chairman of the Board would
constitute such a material adverse change); (B) a material
adverse change in the position to whom the Employee reports
(including any requirement that the Employee report to a corporate
officer or employee instead of reporting directly to the Board) or
to the Employee’s service relationship (or the conditions
under which the Employee performs his duties) as a result of such
reporting structure change, or a material diminution in the
authority, duties or responsibilities of the position to whom the
Employee reports; (C) a material diminution in the budget over
which the Employee has managing authority; or (D) a material
change in the geographic location of the Employee’s principal
place of employment ( e.g. , the Company has determined that
a relocation of more than thirty-five (35) miles would
constitute such a material change); or
|
|
|
|
|
|
|
|
(iv)
|
|
a
material breach by the Company of any of its obligations under this
Agreement.
|
|
|
|
|
|
|
|
|
|
Notwithstanding the foregoing, the
Employee being placed on a paid leave for up to sixty
(60) days pending a determination of whether there is a basis
to terminate the Employee for Cause shall not constitute Good
Reason. The Employee’s continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
act or failure to act constituting Good Reason hereunder;
provided , however , that no such event described
above shall constitute Good Reason unless: (1) the Employee
gives Notice of Termination to the Company specifying the condition
or event relied upon for such termination either: (x) within
ninety (90) days of the initial existence of such event; or
(y) in the case of an event predating a Change in Control,
within ninety (90) days of the Change in Control; and
(2) the Company fails to cure the condition or event
constituting Good Reason within thirty (30) days following
receipt of the Employee’s Notice of Termination.
|
4
9.
Obligations of the Company Upon Termination .
|
|
(a)
|
|
Termination by the Company for a
Reason Other than Cause, Death or Disability and Termination by the
Employee for Good Reason or following a Change in
Control . If
the Employee’s employment is terminated by: (1) the
Company for any reason other than Cause, Death or Disability; or
(2) the Employee for (x) for Good Reason or (y) for
any reason during the period immediately following a Change in
Control and ending on the six (6) month anniversary of such
Change in Control:
|
|
|
(i)
|
|
the
Company shall pay the Employee the following (collectively, the
“Accrued Obligations”): (A) within five
(5) business days after the Date of Termination, any earned
but unpaid Annual Base Salary; (B) within a reasonable time
following submission of all applicable documentation, any expense
reimbursement payments owed to the Employee for expenses incurred
prior to the Date of Termination; and (C) no later than
March 15 th of the year in which the Date of
Termination occurs, any earned but unpaid Annual Bonus payments
relating to the prior calendar year;
|
|
|
|
|
|
|
|
(ii)
|
|
the
Company shall pay the Employee no later than March 15
th
of the calendar year
following the year in which the Date of Termination occurs, a
prorated Annual Bonus based upon the actual Annual Bonus that would
have been earned by the Employee for the year in which the Date of
Termination occurs (based upon the target Annual Bonus Opportunity
in the year in which the Date of Termination occurred, or the prior
year if no target Annual Bonus Opportunity has yet been determined,
and the actual satisfaction of the applicable performance measures,
but ignoring any requirement under the Annual Bonus plan that the
Employee must be employed on the payment date) multiplied by the
percentage of the calendar year completed before the Date of
Termination;
|
|
|
|
|
|
|
|
(iii)
|
|
the
Company shall pay the Employee, no later than the sixty-fifth
(65 th ) calendar day after the Date of
Termination, a lump-sum payment equal to 300% of the sum of:
(A) the Employee’s Annual Base Salary in effect
immediately prior to the Date of Termination (disregarding any
reduction in Annual Base Salary to which the Employee did not
expressly consent in writing); and (B) the highest Annual
Bonus paid to the Employee by the Company within the three
(3) years preceding his termination of employment or, if
higher, the target Annual Bonus Opportunity in the year in which
the Date of Termination occurs;
|
|
|
|
|
|
|
|
(iv)
|
|
all
stock option, restricted stock and other equity-based incentive
awards granted by the Company that were outstanding but not vested
as of the Date of Termination shall become immediately vested
and/or payable, as the case may be, unless the equity incentive
awards are based upon satisfaction of performance criteria (not
based solely on the passage of time); in which case, they will only
vest pursuant to their express terms; and
|
5
|
|
(v)
|
|
the
Company shall provide the Employee with certain continued welfare
benefits as follows:
|
|
|
(A)
|
|
Any
life insurance coverage provided by the Company shall terminate at
the same time as life insurance coverage would normally terminate
for any other employee that terminates employment with the Company,
and the Employee shall have the right to convert that life
insurance coverage to an individual policy under the regular rules
of the Company’s group policy. In addition, if the Employee
is covered under or receives life insurance coverage provided by
the Company on the Date of Termination, then within thirty (30)
business days after the Date of Termination, the Company shall pay
the Employee a lump sum cash payment equal to thirty-six
(36) monthly life insurance premiums based on the monthly
premiums that would be due assuming that the Employee had converted
his Company life insurance coverage that was in effect on the
Notice of Termination into an individual policy.
|
|
|
|
|
|
|
|
(B)
|
|
As
long as the Employee pays the full monthly premiums for COBRA
coverage, the Company shall provide the Employee and, as
applicable, the Employee’s eligible dependents with continued
medical and dental coverage, on the same basis as provided to the
Company’s active executives and their dependents until the
earlier of: (i) three (3) years after the Date of
Termination; or (ii) the date the Employee is first eligible
for medical and dental coverage (without pre-existing condition
limitations) with a subsequent employer. In addition, within thirty
(30) business days after the Date of Termination, the Company
shall pay the Employee a lump sum cash payment equal to thirty-six
(36) monthly medical and dental COBRA premiums based on the
level of coverage in effect for the Employee ( e.g. ,
employee only or family coverage) on the Date of
Termination.
|
|
|
(b)
|
|
Termination by the Company for Cause
and by the Employee without Good Reason . If the Employee’s employment
is terminated (i) by the Company for Cause or (ii) by the
Employee without Good Reason (excluding for this purpose the
Employee terminating his employment without Good Reason during the
six (6) month period immediately following a Change in Control
in accordance with Section 9(a)), the Company’s only
obligation under this Agreement shall be payment of any Accrued
Obligations.
|
|
|
|
|
|
|
|
(c)
|
|
Termination due to Death or
Disability .
If the Employee’s employment is terminated due to death or
Disability, the Company shall pay the Employee (or to the
Employee’s estate or personal representative in the case of
death), within thirty (30) business days after the Date of
Termination: (i) any Accrued Obligations, plus (ii) a
prorated Annual Bonus based upon the target Annual Bonus
opportunity in the year in which the Date of Termination occurred
(or the prior
|
6
|
|
|
|
year if no target Annual Bonus
Opportunity has yet been determined) multiplied by the percentage
of the calendar year completed before the Date of
Termination.
|
|
|
(d)
|
|
Definition of Change in
Control . For
purposes of this Agreement, the term “Change in
Control” shall mean that the conditions set forth in any one
of the following subsections shall have been satisfied:
|
|
|
(i)
|
|
the
acquisition, directly or indirectly, by any “person”
(within the meaning of Section 3(a)(9) of the Securities and
Exchange Act of 1934, as amended (the “Exchange Act”)
and used in Sections 13(d) and 14(d) thereof) of “beneficial
ownership” (within the meaning of Rule 13d-3 of the
Exchange Act) of securities of the Company possessing more than
fifty percent (50%) of the total combined voting power of all
outstanding securities of the Company;
|
|
|
|
|
|
|
|
(ii)
|
|
a
merger or consolidation in which the Company is not the surviving
entity, except for a transaction in which the holders of the
outstanding voting securities of the Company immediately prior to
such merger or consolidation hold, in the aggregate, securities
possessing more than fifty percent (50%) of the total combined
voting power of all outstanding voting securities of the surviving
entity immediately after such merger or consolidation;
|
|
|
|
|
|
|
|
(iii)
|
|
a
reverse merger in which the Company is the surviving entity but in
which securities possessing more than fifty percent (50%) of the
total combined voting power of all outstanding voting securities of
the Company are transf
|
|
