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Exhibit 10.1.1
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT, effective as of January
1, 1996, is entered into by and between FIDELITY NATIONAL FINANCIAL, INC., a
Delaware corporation (the "Company"), and XXXXXXX X. XXXXX, XX (the
"Employee"), and amends the current Employment Agreement between the Company
and Employee, which current Employment Agreement was effective April 1, 1991.
WHEREAS, the Company and Employee are parties to an Employment
Agreement effective April 1, 1991 with a five year term which expires March 31,
1996, and
WHEREAS, the Company and Employee wish to amend such Employment
Agreement to extend the term for an additional five (5) years and in other
respects,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties agree as follows:
1. Section 1 of the Employment Agreement, entitled "Employment
and Duties," is hereby amended to delete the word "President" from such
section.
2. Section 3 of the Employment Agreement, entitled "Salary," is
hereby amended to increase the "minimum base annual salary, before deducting
all applicable withholdings" from "$394,000.00" to "$600,000.00" effective
January 1, 1996. In addition, there shall be a new sentence added to the end
of Section 3 stating as follows: "The Board shall review Employee's minimum
base annual salary in March of 1998 and may, in its sole discretion, increase
(but not decrease) such minimum base annual salary for the remainder of the
term of this Agreement based upon Employee's performance during the first two
years of this Agreement."
3. Section 4(f) of the Employment Agreement, entitled "Other
Compensation and Fringe Benefits," is hereby amended to delete the current
Section 4(f) and replacing it with the following:
(f) An annual bonus equal to $50,000 for each full
percentage point the Company's return on equity
exceeds 10% (based on equity as of the beginning of
the year being measured). Return on equity shall be
determined by dividing net income before
extraordinary items by stockholders' equity as of
the beginning of the year being measured. Any
fractional percentage point increase shall be applied
to $50,000 to determine the amount of such bonus (
for example, an 11.5% return on equity would result
in a $75,000 bonus). Said bonus shall be paid no
later than March 31st of each year and is fully
vested in the event of a non-
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renewal of this agreement or is vested pro-rata in
the event of a termination of this Agreement other
than for cause. The Board may additionally, in its
sole discretion, grant to Employee an annual merit
bonus based upon Employee's performance during the
preceding year and any other factors the Board
considers relevant.
4. Subsections (b),(c) & (d) of Section 7 of the Employment
Agreement, entitled "Termination," are amended to change the language "as,
otherwise directed by the Company" to read "as otherwise directed by Employee."
5. There is hereby added to the Agreement Paragraph 7A, which
shall read in its entirety as follows:
"7A. Severance Payment.
(a) Employee may terminate his employment hereunder for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean a change in
control of the Company (as defined below). For purposes of this Agreement, a
"change in control of the Company shall be deemed to have occurred if (i) there
shall be consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common Stock would be converted into cash, securities
or other property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock 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, or
substantially all, of the assets of the Company, or (ii) the stockholders of
the Company approved 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 Employer, 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 of this Agreement or any renewals hereof, individuals who at the beginning
of such period constitute the board 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. Employee may only terminate this
Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
(b) If the Employee shall terminate 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:
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(i) the Company shall pay the Employee his full salary
through the date of termination pursuant to this Agreement;
(ii) in lieu of any further salary and bonus payments to
the Employee for periods subsequent to the date of termination, the Company
shall pay as severance pay to the Employee an amount equal to the product of
(A) the Employee's annual salary rate in effect as of the date of termination
plus the total bonus paid or payable to the Employee for the most recently
ended calendar year, multiplied by (B) the greater of the number of years
(including partial years) remaining in the term of employment hereunder or the
number 3, such payment to be made in a lump sum on or before the fifth day
following the date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the greater of the number of
years (including partial years) remaining in the term of employment hereunder
or the number 3, all employee benefit plans and programs in which the executive
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 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) The Employee shall not be required to mitigate the amount of
any payment provided for in this section 7A or section 7(b) above 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 7A or section 7(b).
(d) Notwithstanding the provision hereinabove, if any payment
pursuant to this section 7A would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code) , such payment shall be limited to
the largest portion of such payment as can be paid without being a "parachute
payment."
5. Section 10 of the Employment Agreement, entitled
"Non-Competition During Employment Term," is hereby amended to add a sentence
at the end of such Section which shall read as follows: "The Company
acknowledges that Employee is the Chairman of the Board and Chief Executive
Officer of CKE Restaurants, Inc. and will devote a reasonable portion of his
time to fulfilling his duties as a director and an officer of CKE Restaurants,
Inc."
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6. Section 19 of the Employment Agreement, entitled "Notices," is
hereby amended to substitute the following addresses for the parties:
"To the Company:
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
To Employee:
Xxxxxxx X. Xxxxx XX
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
7. Effect on Employment Agreement. Except as herein amended, all
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF the parties have executed this First Amendment to
Employment Agreement as of the date set forth herein above.
FIDELITY NATIONAL FINANCIAL, INC.
/s/ Xxxxxx X. Xxxxxx
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By: Xxxxxx X. Xxxxxx
Its: Executive Vice President and
General Counsel
XXXXXXX X. XXXXX, XX
/s/ Xxxxxxx X. Xxxxx, XX
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