exv10w23






Exhibit 10.23




AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is effective as of July 23,
2008 (the “Effective Date”), by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware
corporation (the “Company”), and PETER T. SADOWSKI (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 Executive Vice President, Chief
Legal Officer. The 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
(“CEO”) or the Board of Directors of the Company (the “Board”). Except as expressly provided in
Subsection 13(c), the Employee shall devote substantially all of his business time, attention and
effort to the performance of his duties hereunder and shall not engage in any business, profession
or occupation, for compensation or otherwise without the express written consent of the CEO, other
than personal, personal investment, charitable, or civic activities or other matters that do not
conflict with the Employee’s duties.



     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 $460,000 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)	 	payment by the Company of the Employee’s Rock Creek Cattle Company annual dues;
	 
	 	(c)	 	medical and other insurance coverage (for the Employee and any covered
dependents) provided by the Company to its other top executives as a group;
	 
	 	(d)	 	supplemental disability insurance sufficient to provide two-thirds of the
Employee’s pre-disability Annual Base Salary;
	 
	 	(e)	 	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 150% 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
15th 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
	 
	 	(f)	 	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.



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     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 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 (30th) 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




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	 	 	 	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 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 Company has
determined that a change in the department or functional group 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
	 
	 	(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



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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.



     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. 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 Good Reason:






	 	(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 15th 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
15th 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 (65th) calendar day after the Date of Termination, a
lump-sum payment equal to 200% 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;




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	 	(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), none of
which exist as of the Effective Date; in which case, they will only vest
pursuant to their express terms; and
	 
	 	(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, the Company’s only obligation under this
Agreement shall be payment of any Accrued Obligations.




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	 	(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 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
transferred to or acquired by a person or persons different from the persons
holding those securities immediately prior to such merger;
	 
	 	(iv)	 	during any period of two (2) consecutive years during the
Employment Term or any extensions thereof, 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;
	 
	 	(v)	 	the sale, transfer or other disposition (in one transaction or
a series of related transactions) of assets of the Company that have a total
fair market value equal to or more than one-third of the total fair market
value of all of




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	 	 	 	the assets of the Company immediately prior to such sale, transfer or other
disposition, other than a sale, transfer or other disposition to an entity
(A) which immediately following such sale, transfer or other disposition
owns, directly or indirectly, at least fifty percent (50%) of the Company’s
outstanding voting securities or (B) fifty percent (50%) or more of whose
outstanding voting securities is immediately following such sale, transfer
or other disposition owned, directly or indirectly, by the Company. For
purposes of the foregoing clause, the sale of stock of a subsidiary of the
Company (or the assets of such subsidiary) shall be treated as a sale of
assets of the Company; or






	 	(vi)	 	the approval by the stockholders of a plan or proposal for the
liquidation or dissolution of the Company.






	 	(e)	 	Six-Month Delay. To the extent the Employee is a “specified employee,”
as defined in Section 409A(a)(2)(B)(i) of the Code and the regulations and other
guidance promulgated thereunder and any elections made by the Company in accordance
therewith, notwithstanding the timing of payment provided in any other Section of this
Agreement, no payment, distribution or benefit under this Agreement that constitutes a
distribution of deferred compensation (within the meaning of Treasury Regulation
Section 1.409A-1(b)) upon separation from service (within the meaning of Treasury
Regulation Section 1.409A-1(h)), after taking into account all available exemptions,
that would otherwise be payable during the six (6) month period after separation from
service, will be made during such six (6) month period, and any such payment,
distribution or benefit will instead be paid on the first business day after such six
(6) month period.





     10. Excise Tax Gross-up Payments.




	 	(a)	 	If any payments or benefits paid or provided or to be paid or provided to the
Employee or for his benefit pursuant to the terms of this Agreement or otherwise in
connection with, or arising out of, his employment with the Company or its subsidiaries
or the termination thereof (a “Payment” and, collectively, the “Payments”) would be
subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, then,
except as otherwise provided in this Subsection 10(a), the Employee will be entitled to
receive an additional payment (a “Gross-Up Payment”) in an amount such that, after
payment by the Employee of all income taxes, all employment taxes and any Excise Tax
imposed upon the Gross-Up Payment (including any related interest and penalties), the
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax (including
any related interest and penalties) imposed upon the Payments. Notwithstanding the
foregoing, if the amount of the Payments does not exceed by more than three percent
(3%) the amount that would be payable to the Employee if the Payments were reduced to
one dollar less than what would constitute a “parachute payment” under Section 280G of
the Code (the “Scaled Back Amount”), then the Payments shall be reduced, in a manner
determined by the Employee, to the Scaled Back Amount, and the Employee shall not be
entitled to any Gross-Up Payment.




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	 	(b)	 	An initial determination of (i) whether a Gross-Up Payment is required pursuant
to this Agreement, and, if applicable, the amount of such Gross-Up Payment or (ii)
whether the Payments must be reduced to the Scaled Back Amount and, if so, the amount
of such reduction, will be made at the Company’s expense by an accounting firm selected
by the Company. The accounting firm will provide its determination, together with
detailed supporting calculations and documentation, to the Company and the Employee
within ten (10) business days after the date of termination of the Employee’s
employment, or such other time as may be reasonably requested by the Company or the
Employee. If the accounting firm determines that no Excise Tax is payable by the
Employee with respect to a Payment or Payments, it will furnish the Employee with an
opinion to that effect. If a Gross-Up Payment becomes payable, such Gross-Up Payment
will be paid by the Company to the Employee within thirty (30) business days of the
receipt of the accounting firm’s determination. If a reduction in Payments is
required, such reduction shall be effectuated within thirty (30) business days of the
receipt of the accounting firm’s determination. Within ten (10) business days after
the accounting firm delivers its determination to the Employee, the Employee will have
the right to dispute the determination. The existence of a dispute will not in any way
affect the Employee’s right to receive a Gross-Up Payment in accordance with the
determination. If there is no dispute, the determination will be binding, final, and
conclusive upon the Company and the Employee. If there is a dispute, the Company and
the Employee will together select a second accounting firm, which will review the
determination and the Employee’s basis for the dispute and then will render its own
determination, which will be binding, final, and conclusive on the Company and on the
Employee for purposes of determining whether a Gross-Up Payment is required pursuant to
this Subsection 10(b) or whether a reduction to the Scaled Back Amount is required, as
the case may be. If as a result of any dispute pursuant to this Subsection 10(b) a
Gross-Up Payment is made or additional Gross-Up Payments are made, such Gross-Up
Payment(s) will be paid by the Company to the Employee within thirty (30) business days
of the receipt of the second accounting firm’s determination. The Company will bear all
costs associated with the second accounting firm’s determination, unless such
determination does not result in additional Gross-Up Payments to the Employee or unless
such determination does not mitigate the reduction in Payments required to arrive at
the Scaled Back Amount, in which case all such costs will be borne by the Employee.
	 
	 	(c)	 	For purposes of determining the amount of the Gross-Up Payment and, if
applicable, the Scaled Back Amount, the Employee will be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made or the Scaled Back Amount is determined, as
the case may be, and applicable state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Employee’s residence on the date of
termination of the Employee’s employment, net of the maximum reduction in federal
income taxes that would be obtained from deduction of those state and local taxes.




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	 	(d)	 	As a result of the uncertainty in the application of Section 4999 of the Code,
it is possible that Gross-Up Payments which will not have been made by the Company
should have been made, the Employee’s Payments will be reduced to the Scaled Back
Amount when they should not have been or the Employee’s Payments are reduced to a
greater extent than they should have been (an “Underpayment”) or Gross-Up Payments are
made by the Company which should not have been made, the Employee’s Payments are not
reduced to the Scaled Back Amount when they should have been or they are not reduced to
the extent they should have been (an “Overpayment”). If it is determined that an
Underpayment has occurred, the accounting firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment (together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the
Company to or for the benefit of the Employee. If it is determined that an Overpayment
has occurred, the accounting firm shall determine the amount of the Overpayment that
has occurred and any such Overpayment (together with interest at the rate provided in
Section 1274(b)(2) of the Code) shall be promptly paid by the Employee (to the extent
he has received a refund if the applicable Excise Tax has been paid to the Internal
Revenue Service) to or for the benefit of the Company; provided,
however, that if the Company determines that such repayment obligation would be
or result in an unlawful extension of credit under Section 13(k) of the Exchange Act,
repayment shall not be required. The Employee shall cooperate, to the extent his
expenses are reimbursed by the Company, with any reasonable requests by the Company in
connection with any contest or disputes with the Internal Revenue Service in connection
with the Excise Tax.
	 
	 	(e)	 	The Employee shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require a payment resulting in an
Underpayment. Such notification shall be given as soon as practicable but no later
than ten (10) business days after the Employee is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which such claim
is requested to be paid. The Employee shall not pay such claim prior to the expiration
of the thirty (30) day period following the date on which he gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Employee in writing prior
to the expiration of such period that it desires to contest such claim, the Employee
shall:






	 	(i)	 	give the Company any information reasonably requested by the
Company relating to such claim,
	 
	 	(ii)	 	take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim
by an attorney reasonably selected by the Company,
	 
	 	(iii)	 	cooperate with the Company in good faith in order to
effectively contest such claim, and




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	 	(iv)	 	permit the Company to participate in any proceeding relating to
such claim;






	 	 	 	provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Employee harmless, on
an after-tax basis, for any Excise Tax or income tax (including related interest and
penalties) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Subsection 10(e),
the Company shall control all proceedings taken in connection with such contest and,
at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of such
claim and may, at its sole option, either direct the Employee to pay the tax claimed
and sue for a refund or contest the claim in any permissible manner, and the
Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Employee to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the Employee, on an
interest-free basis and shall indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax (including related interest or
penalties) imposed with respect to such advance or with respect to any imputed
income with respect to such advance. The Company’s control of the contest shall be
limited to issues that may impact Gross-Up Payments or reduction in Payments under
this Section 10, and the Employee shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
	 
	 	(f)	 	If, after the receipt by the Employee of an amount advanced by the Company
pursuant to Subsection 10(e), the Employee becomes entitled to receive any refund with
respect to such claim, the Employee shall (subject to the Company’s complying with the
requirements of Subsection 10(e)) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable thereto).
If, after the receipt by the Employee of an amount advanced by the Company pursuant to
Subsection 10(e), a determination is made that the Employee shall not be entitled to
any refund with respect to such claim and the Company does not notify the Employee in
writing of its intent to contest such denial of refund prior to the expiration of
thirty (30) days after such determination, then such advance shall be forgiven and
shall not be required to be repaid.
	 
	 	(g)	 	Any payment under this Section 10 must be made by the Company no later than the
end of the Employee’s tax year following the Employee’s tax year in which the Employee
remits the related tax payments.





     11. Non-Delegation of the Employee’s Rights. The obligations, rights and benefits of
the Employee hereunder are personal and may not be delegated, assigned or transferred in any



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manner whatsoever, nor are such obligations, rights or benefits subject to involuntary
alienation, assignment or transfer.




     12. Confidential Information. The Employee acknowledges that he will occupy a
position of trust and confidence and will have access to and learn substantial information about
the Company and its affiliates and their operations that is confidential or not generally known in
the industry including, without limitation, information that relates to purchasing, sales,
customers, marketing, and the financial positions and financing arrangements of the Company and its
affiliates. The Employee agrees that all such information is proprietary or confidential, or
constitutes trade secrets and is the sole property of the Company and/or its affiliates, as the
case may be. The Employee will keep confidential, and will not reproduce, copy or disclose to any
other person or firm, any such information or any documents or information relating to the
Company’s or its affiliates’ methods, processes, customers, accounts, analyses, systems, charts,
programs, procedures, correspondence or records, or any other documents used or owned by the
Company or any of its affiliates, nor will the Employee advise, discuss with or in any way assist
any other person, firm or entity in obtaining or learning about any of the items described in this
Section 12. Accordingly, the Employee agrees that during the Employment Term and at all times
thereafter he will not disclose, or permit or encourage anyone else to disclose, any such
information, nor will he utilize any such information, either alone or with others, outside the
scope of his duties and responsibilities with the Company and its affiliates.



     13. Non-Competition.




	 	(a)	 	During Employment Term. The Employee agrees that, during the
Employment Term, he will devote such business time, attention and energies reasonably
necessary to the diligent and faithful performance of the services to the Company and
its affiliates, and he will not engage in any way whatsoever, directly or indirectly,
in any business that is a direct competitor with the Company’s or its affiliates’
principal business, nor solicit customers, suppliers or employees of the Company or
affiliates on behalf of, or in any other manner work for or assist any business which
is a direct competitor with the Company’s or its affiliates’ principal business. In
addition, during the Employment Term, the Employee will undertake no planning for or
organization of any business activity competitive with the work he performs as an
employee of the Company, and the Employee will not combine or conspire with any other
employee of the Company or any other person for the purpose of organizing any such
competitive business activity.
	 
	 	(b)	 	After Employment Term. The parties acknowledge that the Employee will
acquire substantial knowledge and information concerning the business of the Company
and its affiliates as a result of his employment. The parties further acknowledge that
the scope of business in which the Company and its affiliates are engaged as of the
Effective Date is national and very competitive and one in which few companies can
successfully compete. Competition by the Employee in that business after the
Employment Term would severely injure the Company and its affiliates. Accordingly, for
a period of one (1) year after the Employee’s employment terminates for any reason
whatsoever, except as otherwise stated herein below, the Employee agrees: (i) not to
become an employee, consultant,




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	 	 	 	advisor, principal, partner or substantial shareholder of any firm or business that
directly competes with the Company or its affiliates in their principal products and
markets; and (ii), on behalf of any such competitive firm or business, not to
solicit any person or business that was at the time of such termination and remains
a customer or prospective customer, a supplier or prospective supplier, or an
employee of the Company or an affiliate; provided, however, that services provided
by the Employee as a partner, member or employee of a firm authorized to enter into
the practice of law in any state shall not be considered to be a violation of this
Section 13. Notwithstanding any of the foregoing provisions to the contrary, the
Employee shall not be subject to the restrictions set forth in this Subsection 13(b)
if: (A) the Employee’s employment is terminated by the Company without Cause; (B)
the Employee terminates employment for Good Reason; or (C) the Employee’s employment
is terminated as a result of the Company’s unwillingness to extend the Employment
Term.






	 	(c)	 	Exclusion. Working, directly or indirectly, for any of the following
entities shall not be considered competitive to the Company or its affiliates for the
purpose of this Section 13: (i) Fidelity National Information Services, Inc., its
affiliates or their successors; (ii) Lender Processing Services, Inc., its affiliates
or their successors; or (iii) the Company, its affiliates or their successors if this
Agreement is assumed by a third party as contemplated in Section 21.





     14. Return of Company Documents. Upon termination of the Employment Term, the
Employee shall return immediately to the Company all records and documents of or pertaining to the
Company or its affiliates and shall not make or retain any copy or extract of any such record or
document, or any other property of the Company or its affiliates.



     15. Improvements and Inventions. Any and all improvements or inventions that the
Employee may make or participate in during the Employment Term, unless wholly unrelated to the
business of the Company and its affiliates and not produced within the scope of the Employee’s
employment hereunder, shall be the sole and exclusive property of the Company. The Employee shall,
whenever requested by the Company, execute and deliver any and all documents that the Company deems
appropriate in order to apply for and obtain patents or copyrights in improvements or inventions or
in order to assign and/or convey to the Company the sole and exclusive right, title and interest in
and to such improvements, inventions, patents, copyrights or applications.



     16. Actions. The parties agree and acknowledge that the rights conveyed by this
Agreement are of a unique and special nature and that the Company will not have an adequate remedy
at law in the event of a failure by the Employee to abide by its terms and conditions, nor will
money damages adequately compensate for such injury. Therefore, it is agreed between and hereby
acknowledged by the parties that, in the event of a breach by the Employee of any of the
obligations of this Agreement, the Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance from any court of
competent jurisdiction to restrain or compel the Employee to perform as agreed herein. The
Employee hereby acknowledges that obligations under Sections and Subsections 12, 13(b), 14, 15, 16,
17 and 18 shall survive the termination of employment and be binding by their terms at



13









 




all times subsequent to the termination of employment for the periods specified therein.
Nothing herein shall in any way limit or exclude any other right granted by law or equity to the
Company.




     17. Release. Notwithstanding any provision herein to the contrary, the Company may
require that, prior to payment of any amount or provision of any benefit under Section 9 or payment
of any Gross-Up Payment pursuant to Section 10 of this Agreement (other than due to the Employee’s
death), the Employee shall have executed a complete release of the Company and its affiliates and
related parties in such form as is reasonably required by the Company, and any waiting periods
contained in such release shall have expired; provided, however, that such release
relates only to the Employee’s employment relationship with the Company. With respect to any
release required to receive payments owed pursuant to Section 9, the Company must provide the
Employee with the form of release no later than seven (7) days after the Date of Termination and
the release must be signed by the Employee and returned to the Company, unchanged, effective and
irrevocable, no later than sixty (60) days after the Date of Termination.



     18. No Mitigation. The Company agrees that, if the Employee’s employment hereunder is
terminated during the Employment Term, the Employee is not required to seek other employment or to
attempt in any way to reduce any amounts payable to the Employee by the Company hereunder.
Further, the amount of any payment or benefit provided for hereunder (other than pursuant to
Subsection 9(a)(v) hereof) shall not be reduced by any compensation earned by the Employee as the
result of employment by another employer, by retirement benefits or otherwise.



     19. Entire Agreement and Amendment. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter of this Agreement, and
supersedes and replaces all prior agreements, understandings and commitments with respect to such
subject matter. This Agreement may be amended only by a written document signed by both parties to
this Agreement.



     20. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida, excluding any conflicts or choice of law rule or principle
that might otherwise refer construction or interpretation of this Agreement to the substantive law
of another jurisdiction. Any litigation pertaining to this Agreement shall be adjudicated in
courts located in Duval County, Florida.



     21. Successors. This Agreement may not be assigned by the Employee. In addition to
any obligations imposed by law upon any successor to the Company, the Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the stock, business and/or assets of the Company, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the Company to obtain
such assumption by a successor shall be a material breach of this Agreement. The Employee agrees
and consents to any such assumption by a successor of the Company, as well as any assignment of
this Agreement by the Company for that purpose. As used in this Agreement, “Company” shall mean
the Company as herein before defined as well as any such successor that expressly assumes this
Agreement or otherwise becomes bound by all of



14









 




its terms and provisions by operation of law. This Agreement shall be binding upon and inure
to the benefit of the parties and their permitted successors or assigns.




     22. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.



     23. Attorneys’ Fees. If any party finds it necessary to employ legal counsel or to
bring an action at law or other proceedings against the other party to interpret or enforce any of
the terms hereof, the party prevailing in any such action or other proceeding shall be promptly
paid by the other party its reasonable legal fees, court costs, litigation expenses, all as
determined by the court and not a jury, and such payment shall be made by the non-prevailing party
no later than the end of the Employee’s tax year following the Employee’s tax year in which the
payment amount becomes known and payable; provided, however, that on or after a
Change in Control, and following the Employee’s termination of employment with the Company, if any
party finds it necessary to employ legal counsel or to bring an action at law or other proceedings
against the other party to interpret or enforce any of the terms hereof, the Company shall pay (on
an ongoing basis) to the Employee to the fullest extent permitted by law, all legal fees, court
costs and litigation expenses reasonably incurred by the Employee or others on his behalf (such
amounts collectively referred to as the “Reimbursed Amounts”); provided, further, that the Employee
shall reimburse the Company for the Reimbursed Amounts if it is determined that a majority of the
Employee’s claims or defenses were frivolous or without merit. Requests for payment of Reimbursed
Amounts, together with all documents required by the Company to substantiate them, must be
submitted to the Company no later than ninety (90) days after the expense was incurred. The
Reimbursed Amounts shall be paid by the Company within ninety (90) days after receiving the request
and all substantiating documents requested from the Employee. The payment of Reimbursed Amounts
during the Employee’s tax year will not impact the Reimbursed Amounts for any other taxable year.
The rights under this Section 23 shall survive the termination of employment and this Agreement
until the expiration of the applicable statute of limitations.



     24. Severability. If any section, subsection or provision hereof is found for any
reason whatsoever to be invalid or inoperative, that section, subsection or provision shall be
deemed severable and shall not affect the force and validity of any other provision of this
Agreement. If any covenant herein is determined by a court to be overly broad thereby making the
covenant unenforceable, the parties agree and it is their desire that such court shall substitute a
reasonable judicially enforceable limitation in place of the offensive part of the covenant and
that as so modified the covenant shall be as fully enforceable as if set forth herein by the
parties themselves in the modified form. The covenants of the Employee in this Agreement shall
each be construed as an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of the Employee against the Company, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants in this Agreement.



     25. Notices. Any notice, request, or instruction to be given hereunder shall be in
writing and shall be deemed given when personally delivered or three (3) days after being sent



15









 




by United States Certified Mail, postage prepaid, with Return Receipt Requested, to the
parties at their respective addresses set forth below:



To the Company:



Fidelity National Financial, Inc.

601 Riverside Avenue

Jacksonville, FL 32204

Attention: General Counsel



To the Employee:



Peter T. Sadowski

c/o Fidelity National Financial, Inc.

601 Riverside Avenue

Jacksonville, FL 32204




     26. Waiver of Breach. The waiver by any party of any provisions of this Agreement
shall not operate or be construed as a waiver of any prior or subsequent breach by the other party.



     27. Tax Withholding. The Company or an affiliate may deduct from all compensation and
benefits payable under this Agreement any taxes or withholdings the Company is required to deduct
pursuant to state, federal or local laws.



     28. Code Section 409A. To the extent applicable, it is intended that this Agreement
and any payment made hereunder shall comply with the requirements of Section 409A of the Code, and
any related regulations or other guidance promulgated with respect to such Section by the U.S.
Department of the Treasury or the Internal Revenue Service (“Code Section 409A”). Any provision
that would cause the Agreement or any payment hereof to fail to satisfy Code Section 409A shall
have no force or effect until amended to comply with Code Section 409A, which amendment may be
retroactive to the extent permitted by Code Section 409A. In addition, the direct payment or
reimbursement of expenses permitted under this Agreement or otherwise shall be made no later than
the last day of the Employee’s taxable year following the taxable year in which such expense was
incurred.



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     IN WITNESS WHEREOF the parties have executed this Agreement to be effective as of the date
first set forth above.



	 	 	 	 	 
	 	FIDELITY NATIONAL FINANCIAL, INC.

 	 
	 	By:  	/s/
Alan L. Stinson 	 
	 	 	Its: 	Chief Executive Officer 	 
	 	 	 	 
	 
	 	PETER T. SADOWSKI

 	 
	 	/s/
Peter T. Sadowski
 	 
	 	 	 
	 	 	 
	 




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