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Exhibit 10.42
RETENTION AND MODIFICATION OF AT WILL EMPLOYMENT AGREEMENT
THIS RETENTION AND MODIFICATION OF AT WILL EMPLOYMENT AGREEMENT (the
"Agreement") is made and entered into this 4th day of January, 1999, by and
between NATIONAL INFORMATION GROUP, a California corporation (the "Company"),
and ▇▇▇▇▇▇ JUMP, an individual (the "Employee").
Recitals
A. The Employee is an at will employee of the Company pursuant to that
certain letter agreement dated as of September 3, 1993, together with
any and all amendments (the "Current At Will Employment Agreement"),
between the Employee and National Information Group ("▇▇▇▇").
B. On or about November 18, 1998, ▇▇▇▇ entered into that
certain Agreement and Plan of Merger by and among The First
American Financial Corporation ("First American"), Pea Soup
Acquisition, Inc., a wholly owned affiliate of First
American ("Pea Soup"), and ▇▇▇▇ (the "Agreement of Merger"),
pursuant to which ▇▇▇▇ will be merged with and into Pea Soup
and the Company will become an indirect subsidiary of First
American (the "Merger").
C. The Merger is subject to certain conditions precedent, including,
without limitation, regulatory approvals and approval of the
shareholders of ▇▇▇▇. For purposes of this Agreement, the date on which
the Merger shall occur and become effective shall be referred to as the
"Effective Date of the Merger".
D. The Company and First American desire to provide an incentive to
Employee in order to keep the services of Employee available to the
Company during the pendency of the Merger and thereafter, in each case
subject to the terms and conditions of this Agreement.
Agreement
NOW, THEREFORE, the Company and the Employee agree as follows:
1. CURRENT AT WILL EMPLOYMENT AGREEMENT. The Current At Will Employment
Agreement continues in full force and effect except as modified by this
Agreement.
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2. TERM.
2.1 Section 4 of the Current At Will Employment Agreement (regarding at
will employment) is deleted in its entirety and replaced with the agreement set
forth in Paragraph 2.2 below.
2.2 Employee shall be employed by the Company for fifteen (15) months,
commencing as of December 31, 1998 and ending on March 31, 2000 (the "Initial
Term"), unless sooner terminated in accordance with the provisions of this
Agreement, including without limitation, Paragraph 4 of this Agreement. Upon
expiration of the Initial Term, the provisions of Section 4 of the Current At
Will Employment Agreement in effect immediately before the execution of this
Agreement shall once again govern and Employee's employment shall continue on an
"at will" basis in accordance with the provisions of the Current At Will
Employment Agreement. Notwithstanding Employee's at will employment status at
the expiration of the Initial Term, the Company agrees that it will provide
Employee four (4) months notice prior to terminating Employee unless such
termination is for Cause as set forth in Paragraph 4 of this Agreement.
3. COMPENSATION.
3.1. Base Salary. The bi-weekly salary currently in effect for Employee
shall continue to be paid during the Initial Term in accordance with the payroll
practices and procedures of the Company; provided, however, the Company may, at
the option of the Company, increase the bi-weekly salary of the Employee during
the Initial Term.
3.2. Retention and Non-Competition Payment. Subject to the terms,
covenants, agreements, and conditions set forth below, Employee shall be
entitled to a retention and non-competition payment in the aggregate amount of
$100,000 less any applicable withholdings, taxes as required by law and
deductions authorized by Employee or required by law (the "Retention Payment"),
payable as follows:
3.2.1 The Company shall pay to Employee an amount equal to
twenty percent of the Retention Payment upon execution of this Agreement.
3.2.2 In the event that (i) Employee remains employed by the
Company on a full-time basis until the expiration of this Agreement or Employee
has been terminated by the Company without Cause and (ii) the Merger is
successfully consummated such that ▇▇▇▇ is merged with and into Pea Soup, the
Company
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shall pay to Employee an amount equal to eighty percent of the Retention Payment
upon the expiration of the Initial Term.
3.2.3 If Employee (i) resigns, retires, goes on leave, or is
terminated for Cause before the expiration of the Initial Term or (ii) the
Merger is not consummated for any reason, the eighty percent payment referred to
herein will not be earned or paid.
3.2.4 For the purposes of determining commissions payable to
Employee during the Initial Term in accordance with the terms of the currently
in force Sales Administration Memoranda ("▇▇▇▇") of the Company, any accounts of
the Company which, as of the date hereof, are assigned to Employee shall
continue to be assigned to Employee during the Initial Term and the rate of
commissions payable to Employee pursuant to the currently in force ▇▇▇▇ with
respect to any such accounts shall remain unchanged during the Initial Term.
During the Initial Term, Employee shall continue to be entitled to any override
commissions on accounts assigned to other sales representatives of the Company
(other than vehicle tracking accounts)to which Employee is entitled prior to the
date hereof. If the employment by the Company of any such other sales
representatives is terminated, either voluntarily or involuntarily, during the
Initial Term, any accounts of the Company which were assigned to such other
sales representatives (other than vehicle tracking accounts) shall be assigned
to Employee, and Employee shall be entitled to receive the same commission that
such terminated sales representative would have been entitled to receive but for
such termination of employment; provided, however, in such case, Employee shall
not be entitled to any override commission with respect to any such reassigned
accounts. If Employee (i) resigns, retires, goes on leave, or is terminated for
Cause before the expiration of the Initial Term or (ii) the Merger is not
consummated for any reason, then, upon the happening of any such event, or upon
the public announcement that the Merger will not be consummated, the provisions
of this Section 3.2.4 shall no longer be applicable.
3.3. Death of Employee. In the event Employees dies during the Initial
Term while he/she is employed by the Company, the Company will pay to his/her
estate an amount equal to eighty percent of the Retention Payment if the Merger
is consummated. Employee will not, however, be entitled to any remaining
payments that would have otherwise be paid to him/her under Paragraph 2.1 or any
other provision of this Agreement.
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4. TERMINATION FOR CAUSE. For purposes of this Agreement, "Cause" shall mean:
4.1 The failure of the Employee to discharge or perform his duties and
obligations under this Agreement with due diligence and care;
4.2 The refusal of the Employee to implement or adhere to written
policies, procedures, practices or directives of the Board of Directors or
Managers of the Company as the case may be;
4.3 Conduct which is in violation of Employee's common law
duty of loyalty to the Company;
4.4 Fraudulent conduct in connection with the business affairs of
Employer, regardless of whether said conduct is designed to defraud the Company
or others,
4.5 Conduct which is in violation of any provision of this
Agreement, or
4.6 Conviction of a felony.
5. OTHER BENEFITS. So long as Employee is employed, he/she shall be entitled to
the same Company-provided benefits provided by the Company for its employees in
accordance with the Current At Will Employment Agreement and the Personnel
Policy and Practice Manual of ▇▇▇▇ and its subsidiaries or, after the Effective
Date of the Merger, at the election of the Company, the policies and procedures
applicable to First American and its subsidiaries (the "Company's Personnel
Practices and Policy Manual").
6. COVENANTS.
6.1 Confidentiality; Trade Secrets. Employee acknowledges and agrees
that he/she continues to be bound by the terms of the Proprietary Information
Agreement executed by Employee concurrently with the execution of the Current At
Will Employment Agreement, and that such agreement continues in full force and
effect.
6.2 Non-Competition. For and in consideration of, among other things,
the payment, in whole or in part, of the Retention Payment and the agreement of
the Company to employ Employee for the Initial Term in lieu of at will
employment, Employee agrees that until the expiration of the Initial Term,
he/she shall not, (a) without the prior written consent of a duly authorized
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officer of the Company, serve or act in any capacity, including without
limitation, employee, director, administrator, manager, agent, consultant,
employer, principal, partner, a shareholder, on behalf of another company or any
other business that is in competition, or in the process of becoming in
competition, with the business of the Company, (b) interfere with, disrupt or
attempt to disrupt the relationship, contractual or otherwise, between the
Company and any third parties, including without limitation, customers, clients
or contractors of the Company or (c) directly or indirectly, or by acting alone
or in concert with others, induce or influence any person or entity that is
engaged (as an employee, agent independent contractor or otherwise) by the
Company to terminate his/her/its engagement. This covenant not to compete shall
be applicable to the counties of Maricopa and Pima of Arizona, the counties of
Los Angeles, Orange, San Diego and San Francisco, California, the county of
▇▇▇▇▇▇ of Georgia the counties of New York and Nassau of New York, the counties
of Philadelphia and Allegheny of Pennsylvania, the county of Fairfax of
Virginia.
6.3 Remedies for Breach of Certain Covenants. The covenants and
agreements set forth in Paragraph 6 of this Agreement shall continue to be
binding upon Employee, notwithstanding the termination of his/her employment
with the Company for any reason whatsoever. Such covenants and agreements shall
be deemed and construed as separate agreements independent of any other
provisions of this Agreement and any other agreement between the Company and
Employee. The existence of any claim or cause of action by Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of any or all of such covenants and
agreements. It is expressly agreed that the remedy at law for the breach of the
covenants and agreements in Paragraph 6 are inadequate and that injunctive
relief shall be available to prevent the breach of any threatened breach
thereof.
7. SEPARATE AND SEVERABLE. Each term, clause, condition, covenant, agreement,
and provision of this Agreement is separate and independent, and should any
term, clause or provision of this Agreement be found to be invalid, the validity
of the remaining terms, clauses and provisions shall not be affected.
8. WAIVER OR MODIFICATION INEFFECTIVE UNLESS IN WRITING. No waiver or
modification of this Agreement shall be valid unless in writing and executive by
duly authorized officers of the Company and Employee. Oral agreements are not
binding on the parties.
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9. GOVERNING LAW. This Agreement and performance under it, and any suits or
special proceedings brought under it, shall be construed in accordance with the
laws of the United States of American and the State of Kansas and any
arbitration, mediation or other proceeding arising hereunder shall be filed and
adjudicated in ▇▇▇▇▇▇▇ County, Kansas.
10. ARBITRATION OF DISPUTES. Except as provided in Paragraph 6, any dispute or
controversy arising from or relating to this Agreement, or from any other aspect
of Employee's employment or the termination thereof, shall be decided by
arbitration in South San Francisco or any other city in San Mateo County,
California, in accordance with the rules and regulations of the American
Arbitration Association.
11. ATTORNEYS' FEES. The prevailing party in any dispute with respect to this
Agreement and/or Employee's employment and/or termination shall be entitled to
all reasonable costs and attorneys' fees.
12. RELIANCE; INTERPRETATION. The parties hereto represent and acknowledge that
in executing this Agreement they do no rely and have no relied upon any
representation or statement made by any of the other parties or by any of the
other parties' agents, attorneys and representatives with regard to the subject
matter, basis or effect of this Agreement or otherwise, other than those
specifically stated in this written Agreement. This Agreement shall be
interpreted in accordance with the plain meaning of its terms and not strictly
for or against any of the parties hereto. This Agreement shall be construed as
if each party hereto was its author and each party hereby adopts the language of
this Agreement as if it were his, her or its own. The captions to this Agreement
and its paragraphs, subparagraphs are inserted only for convenience and shall
not be construed as part of this Agreement or as a limitation on or broadening
of the scope of this Agreement or any paragraph or subparagraph.
13. COMPANY PERSONNEL POLICIES AND PRACTICE MANUAL AND RELATIONSHIP TO THIS
AGREEMENT. Notwithstanding anything to the contrary herein, Employee's
employment shall continue to be governed by the Company's Personnel Policies and
Practice Manual. In the event any provision in the Company's Personnel Policies
and Practice Manual is inconsistent with this Agreement, the provisions of this
Agreement shall prevail over any inconsistent provision of the Company's
Personnel Policies and Practice Manual.
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14. MISCELLANEOUS.
14.1. Assignment. This Agreement shall be assigned to any purchaser of
substantially all of the Company's assets or stock, but shall not be assigned
upon the purchase of all or substantially all of the assets or stock of any
subsidiary. The sale of the Company's assets or its stock, or one or more of the
Company's subsidiaries' assets or their stock or the sale of less than
substantially all of their assets shall not comprise a termination of employment
under this Agreement. This Agreement shall not otherwise be assigned without the
prior written consent of both parties.
14.2. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties relating to the subject matter hereof. The parties agree
that (i) there shall be no oral agreements between the parties, whether or not
allegedly entered into prior, during or subsequent to the term of this
Agreement, and (ii) in order for any agreement to be effective between the
parties, whether contemporaneous with or subsequent to the execution date of
this Agreement, it shall be set forth in writing and executed by a duly
authorized officer of the Company and Employee.
14.3. Waiver. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of or an acquiescence in or to
such provision.
14.4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.5. No Inconsistent Obligations. Employee represents that he is not
aware of any obligations, legal or otherwise, inconsistent with the terms of
this Agreement or his undertakings under this Agreement.
14.6. Notices. All communications required or permitted to be made
under this Agreement shall be in writing and either shall be delivered
personally or sent by receipted private mail courier or United States Postal
Service certified or registered mail, postage prepaid and return receipt
requested, to the address or addresses set forth below, or to such other address
or addresses as a party may notify another party pursuant to this Paragraph .
Any such communication shall be deemed to be properly given (i) if delivered
personally or by courier, upon written acknowledgment of receipt after delivery
to the address
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specified; (ii) if posted, the earlier of the actual date of delivery, as set
forth in the return receipt, or three (3) days from the date posted pursuant to
the foregoing. The address for each party is as follows:
To the Company:
National Information Group
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
To Employee:
▇▇▇▇▇▇ Jump
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
agree to enter into and be bound by the provisions thereof, as of the date first
written above.
NATIONAL INFORMATION GROUP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
/s/ ▇▇▇▇▇▇ Jump
-----------------------------------------
▇▇▇▇▇▇ Jump
ACKNOWLEDGED AND AGREED TO:
THE FIRST AMERICAN FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: ____________________
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