AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is
effective as of October 10, 2008 (the “Effective
Date”), by and between FIDELITY NATIONAL FINANCIAL,
INC. , a Delaware corporation (the “Company”), and
RAYMOND R. QUIRK (the “Employee”). 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. 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 capacity as President. Employee accepts such employment
and agrees to undertake and discharge the duties, functions and
responsibilities commensurate with the aforesaid position and such
other duties and responsibilities as may be prescribed from time to
time by the Chief Executive Officer or the Board of Directors of
the Company (the “Board”).
2.
Term . The term of this Agreement shall commence on the
Effective Date and shall continue for a period of three 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 7 (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 7
through 9 shall remain in effect until all parties’
obligations and benefits are satisfied thereunder.
3.
Salary . During the Employment Term, the Company shall pay
the Employee an annual base salary, before deducting all applicable
withholdings, of $740,000 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 at the discretion of 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 3, the “Annual Base Salary”).
4. 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:
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(a)
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the
standard Company benefits enjoyed by the Company’s other top
executives as a group;
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(b)
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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 Company to maintain various business relationships on behalf of
the Company; provided, however, that the Company shall not be
obligated to pay for any of the Employee’s personal purchases
and expenses at such clubs;
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(c)
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medical and other insurance coverage
(for the Employee and any covered dependents) provided by the
Company to its other top executives as a group;
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(d)
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supplemental disability insurance
sufficient to provide two-thirds of the Employee’s
pre-disability Annual Base Salary;
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(e)
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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
“bonus factor” under the Annual Bonus Plan shall be not
less than 150% of the Employee’s Annual Base Salary. The
Employee’s “bonus factor” 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
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(f)
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participation in the Company’s
equity incentive plans.
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5.
Vacation . For and during each calendar year within the
Employment Term, 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 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.
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 to the extent such
reimbursement is permitted under the Company’s expense
reimbursement policy.
7.
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 7(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.
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(a)
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Notice of Termination
. Any purported
termination of the Employee’s employment (other than by
reason of death) shall be communicated by written Notice of
Termination (as defined herein) from one party hereto to the other
party
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hereto 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 Section 7(b)) and,
with respect to a termination due to Disability (as that term is
defined in Section 7(e)), Cause (as that term is defined in
Section 7(d)) or Good Reason (as that term is defined in
Section 7(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 or due to Disability.
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(b)
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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 30th day following the date the Notice of
Termination is given, unless expressly agreed to by the parties
hereto) or the date of the Employee’s death.
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(c)
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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.
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(d)
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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) impeding, or failing to materially cooperate with, 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 (i) to cure any act or omission that constitutes Cause
if capable of cure and (ii), 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.
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(e)
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Disability . For purposes of this Agreement, a
termination based upon “Disability” means a termination
by the Company based upon the Employee’s entitlement
to
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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.
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(f)
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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:
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(i)
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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;
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(ii)
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a
material diminution in the Employee’s Annual Base Salary or
Annual Bonus Opportunity;
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(iii)
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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 Company has determined that a change in the departments or
functional groups over which the Employee has managerial authority
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
CEO) 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
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(iv)
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the
material breach by the Company of any of its other obligations
under this Agreement.
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Notwithstanding
the foregoing, the Board placing the Employee on a paid leave for
up to 60 days pending the 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 has given a 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
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Good Reason
within the thirty (30) day period following receipt of the
Employee’s Notice of Termination.
8.
Obligations of the Company upon Termination .
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(a)
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Termination by the Company for other
than Cause, Death or Disability or Termination by the Employee for
Good Reason . If the Employee’s
employment is terminated by the Company for any reason, other than
Cause, Death or Disability or by the Employee for Good
Reason:
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(i)
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the
Company shall pay to the Employee, (A) within five (5)
business days after the Date of Termination, any earned but unpaid
Annual Base Salary and any expense reimbursement payments owed to
the Employee, and (B) no later than March 15 of the year
in which the Date of Termination occurs, any earned but unpaid
Annual Bonus payments relating to the prior calendar year (the
“Accrued Obligations”);
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(ii)
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the
Company shall pay to the Employee no later than March 15 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;
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(iii)
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the
Company shall pay to the Employee, no later than the sixty-fifth
(65 th ) calendar day after the Date of
Termination, a lump-sum payment equal to 200% of the sum of
(x) 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 (y) 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;
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(iv)
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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
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(v)
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the
Company shall provide the Employee with certain continued welfare
benefits as follows:
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(a)
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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.
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(b)
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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.
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(b)
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Termination by the Company for Cause
or 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, the Company’s only obligation
under this Agreement shall be payment of any earned but unpaid
Annual Base Salary and any expense reimbursement payments owed to
the Employee.
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(c)
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Termination due to Death or
Disability .
If the Employee’s employment is terminated due to death or
Disability, the Company shall pay to the Employee (or to the
Employee’s estate or personal representative in the case of
the Employee’s death), within thirty (30) business days
after the Date of Termination, (i) any Accrued Obligations and
(ii) a prorated Annual Bonus based on (A) the target
Annual Bonus opportunity in the year in which the Date of
Termination occurs or
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the prior year
if no target Annual Bonus opportunity has yet been determined and
(B) the fraction of the year the Employee was employed.
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(d)
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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:
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(i)
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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;
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