Exhibit (10)(gggg)
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) dated as of January 27, 2009 is made
and entered into by and between Anthony Piszel
(“Executive”) and The First American Corporation
(“Employer” or the “Company”). In
consideration of the mutual covenants and agreements set forth
herein, the parties agree as follows:
1. Employment of Executive .
Subject to the terms and conditions of this Agreement, Employer
hereby employs Executive, and Executive hereby accepts employment,
as Chief Financial Officer of Employer. Executive shall devote
Executive’s entire productive time, effort and attention to
the business of Employer during the Term (as defined below);
provided , however , that nothing in this Agreement
shall preclude Executive from continuing to serve as a member of
the RehabCare Group, Inc. Board of Directors, including, without
limitation, service on any of its committees and service as
chairman of any of its committees. Executive will use his best
efforts at all times to promote and protect the good name of
Employer and Employer’s affiliates (together with Employer,
each a “Related Company” and, collectively the
“Related Companies”) as well as that of their
respective officers, directors, employees, agents, products and
services. Executive shall not directly or indirectly render any
service of a business, commercial or professional nature to any
other person or organization, whether for compensation or
otherwise, without the prior written consent of
Employer.
2. Duties To Be Performed .
Executive shall perform the duties and have the responsibilities
customarily performed and held by a person in a position similar to
that set forth in Section 1. Executive shall also perform such
other duties as directed by Employer’s Board of Directors and
the Chief Executive Officer of Employer or his designee. Any
modification made by Employer’s Board of Directors to the
duties of Executive shall not constitute a breach of this
Agreement.
3. Term of Agreement . The
term of employment shall commence on the date of this Agreement
and, unless earlier terminated pursuant to the provisions of the
Agreement, shall terminate upon the close of business on
January 26, 2011 (the “Term”).
4. Compensation . In full
payment for Executive’s services, Employer shall provide to
Executive compensation and benefits determined in accordance with
this Section 4.
4.1 Salary . During the Term,
Employer shall pay Executive a base annual salary (the “Base
Salary”), before deducting all applicable withholdings, of
$500,000 per year, payable at the times and in the manner dictated
by Employer’s standard payroll policies, which Base Salary
may be increased in the sole and unfettered discretion of the
Compensation Committee of the Board of Directors of Employer (the
“Compensation Committee”). The Base Salary shall be
prorated for any partial pay period that occurs during the
Term.
4.2 Performance Bonus; Long-Term
Incentive Equity Awards . During the Term, in addition to the
Base Salary, Employer, as provided in this Section 4.2, shall
and, may otherwise, in the sole and unfettered discretion of the
Compensation Committee, pay to Executive an annual performance
bonus and long-term incentive equity award.
(a) Annual Performance Bonus
. For the calendar years 2009 and 2010, Executive shall be eligible
for an annual performance bonus as provided in this
Section 4.2(a). For calendar year 2009, Executive’s
target annual performance bonus shall be $1,000,000 and such bonus
shall be not less than $500,000 and not more than $1,500,000, as
determined pursuant to criteria established by the Compensation
Committee. The annual performance bonus for 2009 shall be payable
in March 2010 in such form and otherwise in accordance with the
Company’s compensation policies. For calendar year 2010,
Executive’s target annual performance bonus shall be
$1,000,000 and such bonus shall be not more than $1,500,000, as
determined pursuant to criteria established by the Compensation
Committee. There shall be no minimum guaranteed bonus for calendar
year 2010. The annual performance bonus for 2010 shall be paid in
March 2011 in such form and otherwise in accordance with the
Company’s compensation policies. Executive acknowledges and
agrees that the Company’s compensation policies currently
provide that annual performance bonus compensation shall be paid in
a mixture of cash and restricted stock units
(“RSUs”).
(b) Long-Term Incentive Equity
Awards . For each calendar year during the Term, Executive
shall be eligible to receive long-term RSUs (often referred to as
Other Restricted Stock Units) (“Long-Term RSUs”), in
such final amount, up to a maximum value at the time of grant of
$500,000, and otherwise subject to such terms as may be determined
by the Compensation Committee, provided that such terms are
substantially similar to those terms applicable to grants made to
similarly situated executives of the Company at or around the date
of the grant to Executive. Executive shall receive a minimum of
$250,000 in Long-Term RSUs for 2009.
(c) All RSUs, including, without
limitation, RSUs granted pursuant to this Section 4.2 and
Section 4.3, shall be granted at such times as is consistent
with the Company’s standard policies and procedures for
granting RSUs. Any RSUs granted under this Agreement shall be
subject to the same restrictions and provisions of RSUs granted to
other similarly situated employees of Employer, including the
execution and delivery by Employee of an award agreement in the
form required by the Company. Without limiting the generality of
the foregoing, any RSUs granted pursuant to this Agreement shall be
granted in accordance with, and subject to the provisions of, The
First American Corporation 2006 Incentive Compensation Plan (the
“Plan”). In the event there are insufficient RSUs
available under the Plan, the Plan has been terminated, the
registration statement on which the Plan is registered has been
suspended or is otherwise not in effect or the issuance of any of
the RSUs would violate the Plan, then amounts payable in RSUs which
as a result cannot be granted in RSUs shall be paid in cash. The
Plan and all other employee benefit or welfare plans are subject to
modification, change or elimination in the Company’s sole
discretion.
4.3 Sign-On Compensation .
Executive shall receive the following “sign-on”
compensation:
(a) On the first grant date
(currently anticipated to be March 2, 2009) following
commencement of Executive’s employment with the Company,
Executive shall be granted $500,000 in RSUs, which RSUs shall be
Long-Term RSUs, shall vest
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20% per year for five
(5) years and otherwise subject to such terms as may be
determined by the Compensation Committee, provided that such
terms are substantially similar to those terms applicable to grants
made to similarly situated executives of the Company at or around
the date of the grant to Executive.
(b) Executive shall receive a
$250,000 cash bonus on or before January 30, 2009. This
sign-on bonus shall be 100% recoverable by the Company if Executive
terminates his employment for any reason before the first
anniversary of his employment with the Company, or if Executive is
terminated by the Company for any of the reasons set forth in
Section 5.2 below before the first anniversary of his
employment with the Company. The sign-on bonus shall be 50%
recoverable by the Company if Executive terminates his employment
for any reason between the first and second anniversary of his
employment with the Company, or if Executive is terminated by the
Company for any of the reasons set forth in Section 5.2 below
between the first and second anniversary of his employment with the
Company. Any such repayment shall be paid to the Company by
Executive within thirty (30) days of his
termination.
4.4 Benefits . Executive
shall, subject to the terms and conditions of any applicable
benefits plan documents and applicable law, be entitled to receive
all benefits of employment generally available to other similarly
situated executives of Employer when and as he become eligible for
them, including medical, dental, life and disability insurance
benefits. Employer reserves the right to modify, suspend or
discontinue any and all of the above benefit plans, policies, and
practices at any time without notice to or recourse by Executive,
so long as such action is taken generally with respect to other
similarly situated executives of Employer and does not single out
Executive.
4.5 Relocation Expenses .
Executive shall be eligible for reimbursement of up to $250,000 in
relocation expenses, which reimbursement shall be subject to and
evidenced by the Company’s standard relocation agreement for
similarly situated executives. Such relocation agreement is
expressly incorporated by reference herein.
4.6 Taxes and Withholdings .
Employer may deduct from all compensation payable under this
Agreement to Executive any taxes or withholdings Employer is
required to deduct pursuant to state and federal laws or by mutual
agreement between the parties.
5. Termination .
5.1 Termination Upon Death .
The Term (and Executive’s employment) shall automatically
terminate with immediate effect upon the death of
Executive.
5.2 Termination by Employer .
Notwithstanding anything in this Agreement to the contrary, express
or implied, the Term (and Executive’s employment) may be
terminated immediately by Employer (by delivery of written notice
specifying that termination is made pursuant to this
Section 5.2) as follows:
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(a) Whenever Executive is not
physically or mentally able (with reasonable accommodation) to
perform the essential functions of Executive’s
job;
(b) For “Cause,” which
shall be defined as: (i) embezzlement, theft or
misappropriation by the Executive of any property of any of the
Related Companies; (ii) Executive’s willful breach of
any fiduciary duty to Employer; (iii) Executive’s
willful failure or refusal to comply with laws or regulations
applicable to Employer and its business or the policies of Employer
governing the conduct of its employees; (iv) Executive’s
gross incompetence in the performance of Executive’s job
duties; (v) commission by Executive of a felony or of any
crime involving moral turpitude, fraud or misrepresentation;
(vi) the failure of Executive to perform duties consistent
with a commercially reasonable standard of care;
(vii) Executive’s refusal to perform Executive’s
job duties or to perform reasonable specific directives of
Executive’s supervisor or his successor or designee and the
Board of Directors of Employer; or (viii) any gross negligence
or willful misconduct of Executive resulting in a loss to Employer
or any other Related Company, or damage to the reputation of
Employer or any other Related Company; or
(c) Upon the occurrence of any
material breach (not covered by any of clauses (i) through
(viii) of Section 5.2(b) above) of any of the provisions
of this Agreement, it being agreed that for all purposes under this
Agreement any violation of any of the provisions of Sections 1, 6,
7 and 8 shall be deemed to be a material breach of this
Agreement.
5.3 Termination by Executive
.
(a) Executive may terminate the Term
(and Executive’s employment) by giving two weeks written
notice Employer.
(b) Executive may terminate the Term
(and Executive’s employment) for any reason, and with the
effect described in Section 5.5(a), during the thirty
(30) day period commencing on the six (6) month
anniversary of a Change-in-Control.
(c) For purposes of this Agreement,
a “Change in Control” means the occurrence of any of
the following:
(i) 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.
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(ii) 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.
(iii) 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).
(iv) 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
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. For the avoidance of doubt, a Change in Control shall
not include a distribution of the stock or other equity of any
Related Company to the shareholders of Employer.
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5.4 Termination by Employer
without Cause . Employer may terminate the Term (and
Executive’s employment) by giving two weeks written notice to
Executive. A termination made pursuant to this Section 5.4 is
a “termination Without Cause.” A termination made
pursuant to Section 5.2 (and satisfying the notice requirement
set forth therein) shall under no circumstance be considered a
termination Without Cause.
5.5 Rights and Obligations Upon
Termination .
(a) In the event of Employer’s
termination of the Term (and Executive’s employment) pursuant
to Section 5.4 (which, for the avoidance of doubt, is a
termination Without Cause), or Executive’s termination of the
Term (and Executive’s employment) pursuant to
Section 5.3(b) (which, for the avoidance of doubt, is a
termination by Executive following a Change in Control) Employer
shall pay Executive:
(i) his Base Salary and accrued
vacation through the date of termination, paid within 5 days
following the termination date (or earlier if required by
law);
(ii) any annual bonus earned for any
fiscal year completed before the date of termination that remains
unpaid as of the date of termination, paid within 5 days following
the termination date (or earlier if required by law);
and
(iii) an amount (the
“Severance Amount”) equal to the sum of (A) his
Base Salary as set forth in Section 4.1 which would otherwise
have been payable to Executive during the remaining balance of the
Term had Executive’s employment not been so terminated and
(B) if such termination occurs after the payment of the annual
performance bonus f
