Exhibit 10(ix)
--------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") effective as of November 17, 2003
(the "Effective Date"), is between Investors Title Insurance Company, a North
Carolina corporation (the "Company"), and X. Xxxxx Fine ("Executive").
RECITALS:
WHEREAS, Executive is presently the Chief Executive Officer of the Company
and has made and is expected to continue to make major contributions to the
profitability, growth and financial strength of the Company; and
WHEREAS, the Company desired to secure the services of the Executive for
the future;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive accepts
continued employment with the Company, upon the terms and conditions set forth
in this Agreement. The term of this Agreement shall be for a period of five (5)
years beginning on the date hereof, and shall on the first day of each calendar
month, unless either party gives written notice to the other party at least
thirty (30) days prior to such date of intent not to extend this Agreement, be
extended one (1) additional month so that at all times the term of this
Agreement shall be for a period of five (5) years unless earlier terminated as
provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Chief
Executive Officer of the Company or in such other similar position as the
Executive and the Board shall agree upon and, subject to the management of the
business and affairs of the Company at the direction of the Board of Directors
of the Company (the "Board"), shall have the normal duties, responsibilities and
authority of an executive serving in such position.
(b) Executive shall report to the Board.
(c) During the Employment Period, Executive shall devote his best efforts
and his full business time and attention (except for participation in charitable
and civic endeavors and management of Executive's personal investments and
business interests, provided such activities do not have more than a de minimis
effect on Executive's performance of his duties under this Agreement) to the
business and affairs of the Company, its parent, subsidiaries and affiliates.
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner.
(d) Executive shall perform his duties and responsibilities principally in
the Chapel Hill, North Carolina area and shall not be required to travel outside
that area any more extensively than Executive has done in the recent past in the
ordinary course of the business of the Company.
3. Compensation and Benefits.
(a) Salary. The Company agrees to pay Executive a salary during the
Employment Period in installments based on the Company's practices as may be in
effect from time to time. Executive's initial salary shall be at the rate of Two
Hundred Fifty-Two Thousand Dollars ($252,000) per year, as may be increased from
time to time (the "Base Salary"), provided, however, that if there is a Change
in Control (as hereafter defined), the Executive's Base Salary as then in effect
shall double effective at the time the Change in Control becomes effective.
Executive's Base Salary shall be reviewed by the Compensation Committee of the
Board (the "Compensation Committee") and shall be increased, but not decreased,
from time to time at least in an amount as shall be substantially consistent
with increases in base salary generally awarded in the ordinary course of
business to other peer executives of the Company and its affiliated companies.
As used in this Agreement, the term "affiliated companies" shall include any
company controlled by, controlling or under common control with the Company.
(b) Bonuses. Executive will be entitled to such cash bonuses as the Board
may determine, in its sole discretion, from time to time ("Bonus Compensation").
(c) Expense Reimbursement. The Company shall reimburse Executive for all
reasonable expenses incurred by Executive during the Employment Period in the
course of performing his duties under this Agreement that are consistent with
the Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's requirements
applicable generally with respect to reporting and documentation of such
expenses.
(d) Nonqualified Executive Retirement Plan. During the Employment Period
and within ten (10) days after each calendar quarter, the Company shall make a
contribution on the Executive's behalf to a Nonqualified Executive Retirement
Plan in an amount equal to twenty-two percent (22%) of the Executive's Base
Salary and Bonus Compensation paid during such calendar quarter. If the
Employment Period is terminated, for any reason whatsoever, prior to a
contribution being made for twenty (20) calendar quarters, then in such event
the Company shall make a lump sum contribution to the plan equal to the number
of calendar quarters less than twenty (20), using as a base for determining such
amount twenty two percent (22%) of the Executive's Base Salary and Bonus
Compensation for the twelve (12) months preceding the termination of employment.
(e) Compensation for Serving on Board. Executive shall be entitled to no
extra compensation for serving on the Company's or its affiliated companies'
Boards of Directors.
(f) Vacation and Sick Leave. Executive shall be entitled annually to
thirty (30) days of paid vacation and to unlimited sick leave, provided the
Employment Period is subject to termination
2
for disability as provided under paragraph 4(b). The vacation leave shall be
cumulative; provided, however, that Executive shall not be compensated for any
unused vacation leave.
(g) Other Benefits. Executive shall be entitled during the Employment
Period to participate, on the same basis as other executives of the Company, in
such other benefits for which substantially all of the executives of the Company
are from time to time generally eligible, as determined from time to time by the
Board.
4. Employment Period.
(a) The Employment Period shall continue until terminated as provided in
subsection (b) below.
(b) The Employment Period shall end upon the first to occur of any of the
following events:
(i) Executive's death;
(ii) the Company's termination of Executive's employment on account
of Executive's having become unable (as determined by the Board in good
faith) to perform regularly Executive's duties hereunder by reason of
illness or incapacity for a period of more than one hundred eighty (180)
consecutive days ("Termination for Disability");
(iii) the Company's termination of Executive's employment for Cause
("Termination for Cause");
(iv) the Company's termination of Executive's employment other than
pursuant to subsections (b)(ii) or (iii) above ("Termination without
Cause") by means of advance written notice of at least sixty (60) days.
(v) Executive's termination of his employment for Good Reason by
means of advance written notice to the Company at least thirty (30) days
prior to the effective date of such termination ("Termination by Executive
for Good Reason");
(vi) Executive's retirement at any time following his 70th birthday,
upon written notice to the Company of at least six (6) months
("Retirement");
(vii) Executive's termination of his employment within thirty (30)
days following a Change in Control by written notice to the Company.
(c) For purposes of this Agreement, "Cause" shall mean:
(i) the Executive's conviction of, or plea of guilty or nolo
contendere to, any crime involving dishonesty or moral turpitude;
3
(ii) the commission by Executive of a fraud against the Company or
any of its parent, subsidiaries or affiliates for which he is convicted;
(iii) gross negligence or willful misconduct by Executive with
respect to the Company or any of its parent, subsidiaries or affiliates
which causes material detriment to the Company or any of its parent,
subsidiaries or affiliates;
(iv) the falsification or manipulation of any records of the Company
or any of its parent, subsidiaries or affiliates;
(v) repudiation of this Agreement by Executive or Executive's
abandonment of employment with the Company or any of its parent,
subsidiaries or affiliates;
(vi) breach by Executive of any of the agreements in paragraphs 6
and 7 hereof prior to the end of the Employment Period;
(vii) failure or refusal of Executive to perform his duties with the
Company or any of its parent, subsidiaries or affiliates or to implement
or follow the policies or directions of the Board within thirty (30) days
after a written demand for performance is delivered to Executive by the
Board that specifically identifies the manner in which the Board believes
that Executive has not performed his duties or failed to implement or
follow the policies or directions of the Board.
(d) For purposes of this Agreement,
(i) "Good Reason" shall mean any breach by the Company of this
Agreement that is material and that is not cured within thirty (30) days
after written notice thereof to the Company from Executive;
(ii) "Change in Control" shall be deemed to have occurred upon the
occurrence of any of the following events:
(A) Any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than Executive or his affiliates or
immediate family members, is or becomes the "beneficial owner" (as
defined in Rule l3d-3 under the Exchange Act), directly or
indirectly, of securities of the Company, or its parent, Investors
Title Company, representing 50% or more of the combined voting power
of the Company's or Investors Title Company's outstanding securities
then entitled ordinarily (and apart from rights accruing under
special circumstances) to vote for the election of directors; or
4
(B) Individuals who are "Continuing Directors" (as hereinafter
defined) of Investors Title Company cease for any reason to
constitute at least a majority of its Board of Directors; or
(C) A sale of more than 50% of the assets (measured in terms
of monetary value) of the Company or Investors Title Company is
consummated; or
(D) Any merger, consolidation, or like business combination or
reorganization of the Company or Investors Title Company is
consummated that results in the occurrence of any event described in
subparagraph (A), (B) or (C) above.
(iii) "Continuing Directors" shall mean:
(A) the directors of Investors Title Company in office on the
date of this Agreement; or
(B) any successor to any such director (and any additional
director) who after the date of this Agreement (i) was nominated or
selected by a majority of the Continuing Directors in the office at
the time of his or her nomination or selection and (ii) who is not
an "affiliate" or "associate" (as defined in Regulation 12B under
the Exchange Act) of any person who is the beneficial owner,
directly or indirectly, of securities representing 50% or more of
the combined voting power of the Company's outstanding securities
then entitled ordinarily to vote for the election of directors.
5. Post-Employment Period Payments.
(a) If the Employment Period ends pursuant to paragraph 4 hereof for any
reason, Executive shall cease to have any rights to salary, options, expense
reimbursements or other benefits other than: (i) any salary which has accrued
but is unpaid and any reimbursable expenses which have been incurred but are
unpaid as of the end of the Employment Period, (ii) any option rights or plan
benefits which by their terms extend beyond termination of Executive's
employment (but only to the extent provided in any option theretofore granted to
Executive or any other benefit plan in which Executive has participated as an
employee of the Company), (iii) any benefits to which Executive is entitled
under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security
Act of 1974, as amended ("COBRA"), and (iv) any other amount(s) payable pursuant
to the succeeding provisions of this paragraph 5.
(b) If the Employment Period ends pursuant to paragraph 4 hereof on
account of Executive's death, Termination for Disability or Retirement, the
Executive or, in the event of death, his beneficiary (as identified to the
Company in writing) shall be entitled to receive the following: (i) payment of
the Executive's then current base salary for a period of three (3) years
following the termination date, payable on a monthly basis, (ii) three (3)
annual payments on the anniversary of the termination date, each in an amount
equal to the average of the Bonus Compensation paid to the
5
Executive during the three (3) years prior to Executive's death, Disability or
Retirement, (iii) continued participation by Executive and his spouse in the
Company's medical, dental and vision health plan, at the Company's expense,
until Executive dies or, if later, until his surviving spouse dies, (iv)
continued participation in the Company's life insurance plan until Executive
dies or becomes ineligible by reason of age, (v) continued participation by each
of Executive's dependent children in the Company's medical, dental and vision
health plan, at the Company's expense, until each child is no longer a
dependent, and (vi) immediate vesting of Executive's existing stock options.
(c) If the Employment Period ends pursuant to paragraph 4 hereof on
account of Termination for Cause, the Company shall pay Executive an amount
equal to that amount Executive would have received as salary (based on
Executive's Base Salary then in effect) had the Employment Period remained in
effect until the later of the effective date of the Company's termination of
Executive's employment or the date thirty (30) days after the Company's notice
to Executive of such termination. The Company shall make no further payments to
Executive.
(d) If the Employment Period ends pursuant to paragraph 4 hereof on
account of a Termination without Cause or a Termination by Executive for Good
Reason, the Executive shall be entitled to receive the following: (i) payment of
the Executive's then current Base Salary for a period of five (5) years
following the termination date, payable on a monthly basis, (ii) five (5) annual
payments on the anniversary of the termination date, each in an amount equal to
the average of the Bonus Compensation paid to the Executive during the three (3)
years prior to the termination date, (iii) a lump sum payment equal to the
present value of the amount the Company would have contributed or credited to
the Executive's retirement account and Nonqualified Executive Retirement Plan
during the first five (5) years following the termination date, (iv) continued
participation by Executive and his spouse in the Company's medical, dental and
vision health plan, at the Company's expense, until Executive dies or, if later,
until his surviving spouse dies, (v) continued participation by each of
Executive's dependent children in the Company's medical, dental and vision
health plan, at the Company's expense, until each child is no longer a
dependent, (vi) immediate vesting of Executive's existing stock options, and
(vii) continued participation in the Company's life insurance plan until
Executive dies or becomes ineligible by reason of age.
(e) If the Executive terminates his employment because of a Change in
Control, the Executive shall be entitled to receive the following: (i) a lump
sum payment equal to 2.99 times the sum of the Executive's then current Base
Salary, (ii) a lump sum payment equal to 2.99 times the amount equal to the
average of the Bonus Compensation paid to the Executive during the three (3)
years prior to the termination date, (iii) continued participation by Executive
and his spouse in the Company's medical, dental and vision health plan, at the
Company's expense, until Executive dies or, if later, until his surviving spouse
dies, (iv) continued participation by each of Executive's dependent children in
the Company's medical, dental and vision health plan, at the Company's expense,
until each child is no longer a dependent, (v) immediate vesting of Executive's
existing stock options, and (iv) continued participation in the Company's life
insurance plan until Executive dies or becomes ineligible by reason of age. Upon
entitlement, all sums due hereunder will be payable in cash or by official bank
check within thirty (30) days following termination of the Executive's
employment. Notwithstanding anything to the contrary contained herein, in the
event that any portion of the payments or benefits received or to be received by
the Executive, together with
6
any other payments received by him, whether paid or payable pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company or any other person or entity, would cause, either directly or
indirectly, an "excess parachute payment" to exist within the meaning of said
Section 280G of the Internal Revenue Code, the payments hereunder shall be
reduced until no portion of the payments would fail to be deductible by reason
of being an "excess parachute payment". In the event that any dispute arises as
to whether an "excess parachute payment" exists, the appropriate calculations
shall be made by the Company's regularly employed independent public auditors
and delivered to the Executive in writing within thirty (30) days following the
date for payment of such severance payment, and the Company will warrant to the
Executive the accuracy of the calculations and the information on which they are
based.
(f) Executive shall not be required to mitigate the amount of any payment
or benefit provided for in this Agreement by seeking other employment or
otherwise.
6. Confidential Information. Executive acknowledges that the information,
observations and data obtained by Executive while employed by the Company
pursuant to this Agreement, as well as those obtained by Executive while
employed by the Company or any of its subsidiaries or affiliates or any
predecessor thereof prior to the date of this Agreement, concerning the business
or affairs of the Company or any of its subsidiaries or affiliates or any
predecessor thereof (unless and except to the extent the foregoing become
generally known to and available for use by the public other than as a result of
Executive's acts or omissions to act, "Confidential Information") are the
property of the Company or such parent, subsidiary or affiliate. Therefore,
Executive agrees that during the Employment Period and thereafter Executive
shall not disclose any Confidential Information without the prior written
consent of the Board unless and except to the extent that such disclosure is (i)
made in the ordinary course of Executive's performance of Executive's duties
under this Agreement or (ii) required by any subpoena or other legal process (in
which event Executive will give the Company prompt notice of such subpoena or
other legal process in order to permit the Company to seek appropriate
protective orders), and that Executive shall not use any Confidential
Information for Executive's own account without the prior written consent of the
Board. Executive shall deliver to the Company at the termination of the
Employment Period, or at any other time the Company may reasonably request, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, or to the work product or the business of the Company or any of its
parent, subsidiaries or affiliates that Executive may then possess or have under
his control.
7. Noncompetition; Nonsolicitation.
(a) Executive acknowledges that in the course of his employment with the
Company pursuant to this Agreement, Executive will become familiar, and during
the course of Executive's employment by the Company or any of its parent,
subsidiaries or affiliates or any predecessor thereof prior to the date of this
Agreement, Executive has become familiar with trade secrets and customer lists
of and other confidential information concerning the Company and its parent,
subsidiaries and affiliates and predecessors thereof and that Executive's
services have been and will be of special, unique and extraordinary value to the
Company.
7
(b) Executive agrees that during the Employment Period and, as a condition
to the receipt of payments as provided under paragraph 4, for a period of two
(2) years after termination of Executive's employment with the Company, in the
State of North Carolina Executive shall not in any manner, directly or
indirectly, through any person, firm or corporation, alone or as a member of a
partnership or as an officer, director, shareholder, investor or employee of or
in any other corporation or enterprise or otherwise, engage or be engaged in, or
assist any other person, firm, corporation or enterprise in engaging or being
engaged in, any business then actively being conducted by the Company or any of
its parent, subsidiaries or affiliates.
(c) Executive further agrees that, during the Employment Period and, as a
condition to the receipt of payments as provided under paragraph 4, for a period
of two (2) years after termination of Executive's employment with the Company,
Executive shall not in any manner, directly or indirectly, induce or attempt to
induce any employee of the Company or of any of its parent, subsidiaries or
affiliates (other than his spouse, if applicable) to quit or abandon his or her
employ.
(d) Nothing in this paragraph 7 shall prohibit Executive from being: (1) a
shareholder in a mutual fund or a diversified investment company or (ii) a
passive owner of not more than 5% of the outstanding equity securities of any
class of a corporation or other entity which is publicly traded, so long as
Executive has no active participation in the business of such corporation or
other entity.
(e) In the event Executive violates any legally enforceable provision of
this Agreement as to which there is a specific time period during which
Executive is prohibited from taking certain actions or from engaging in certain
activities, as set forth in this Agreement, then, in such event, the violation
shall toll the running of such time period from the date of such violation until
the violation ceases.
(f) Executive acknowledges that he has carefully considered the nature and
extent of the restrictions on him and the rights and remedies conferred on the
Company under this Agreement. Executive further acknowledges and agrees that the
same are reasonable in time and territory, are designed to eliminate competition
which would otherwise be unfair to the Company, do not stifle Executive's
inherent skill and experience, would not operate as a bar to Executive's sole
means of support, are fully required to protect the legitimate interests of the
Company and do not confer a benefit upon the Company disproportionate to
Executive's detriment.
(g) If, at the time of enforcement of this paragraph, a court holds that
the restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum period, scope and area
permitted by law.
8. Enforcement. Because Executive's services are unique and because
Executive has access to Confidential Information and work product, the parties
hereto agree that the Company would be damaged irreparably in the event any of
the provisions of paragraph 7 hereof were not performed in accordance with their
specific terms or were otherwise breached and that money damages would be an
inadequate remedy for any such non-performance or breach. Therefore, the
8
Company or its successors or assigns shall be entitled, in addition to other
rights and remedies existing in their favor, to an injunction or injunctions to
prevent any breach or threatened breach of any of such provisions and to enforce
such provisions specifically (without posting a bond or other security).
9. Consulting and Advice. During the time period that the Executive
receives post-employment payments under paragraph 5, other than by reason of
death or disability, the Executive agrees that when and as requested, he will
consult with the Company concerning policies, procedures and operations. The
requests by the Company for consultation shall be at reasonable times, with
appropriate notice, not more frequent than three (3) times a month, and may, at
Employee's election, be through telephone communication.
10. Survival. Subject to any limits on applicability contained therein,
paragraphs 5, 6, 7 and 9 hereof shall survive and continue in full force in
accordance with their terms notwithstanding any termination of the Employment
Period.
11. Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, sent by reputable overnight carrier or
mailed by first class mail, return receipt requested. Any notice to Executive
will be delivered to the last home address on file with the Company and any
notice to the Company should be delivered to:
Investors Title Insurance Company
Attention: Secretary
P. O. Drawer 2687
Chapel Hill, NC 27515-2687
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered,
sent or mailed.
12. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Complete Agreement. This Agreement embodies the complete agreement and
understanding between the parties with respect to the subject matter hereof and
effective as of its date supersedes and preempts any prior understandings,
agreements or representations by or between the parties, written or oral, which
may have related to the subject matter hereof in any way.
9
14. Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be deemed to be an original and both of which taken together
shall constitute one and the same agreement.
15. Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective
heirs, executors, personal representatives, successors and assigns, except that
neither party may assign any rights or delegate any obligations hereunder
without the prior written consent of the other party. Executive hereby consents
to the assignment by the Company of all of its rights and obligations hereunder
to any successor to the Company by merger or consolidation or purchase of all or
substantially all of the Company's assets, provided such transferee or successor
assumes the liabilities of the Company hereunder.
16. Choice of Law. This Agreement shall be governed by the internal law,
and not the laws of conflicts, of the State of North Carolina.
17. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company and Executive, and
no course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
18. Mediation. If a dispute arises out of or relates to this Agreement, or
the breach thereof, and if the dispute cannot be settled through negotiation,
the parties agree to submit such controversy to mediation for resolution. The
parties may use the procedures set forth in the North Carolina General Statutes'
Rules Implementing Court Ordered Mediated Settlement Conferences, where and if
applicable. Provided, however, if any controversy between the parties is not
resolved by mediation within sixty (60) days after the date the controversy has
arisen (hereinafter "controversy date"), the parties shall settle such
controversy by arbitration in accordance with the terms of the Uniform
Arbitration Act, currently codified in North Carolina General Statute, Article
45A, ss.1-567.1, et seq., or any successor statutes thereto, and as provided in
Section 19 below.
19. Arbitration. Any dispute or controversy arising under this Agreement
which is not resolved by mediation pursuant to Section 18 shall be determined
and settled by an independent disinterested person agreed upon by the parties to
the dispute. If the parties are unable to mutually agree upon an independent
arbitrator within thirty (30) days, then each party shall appoint an independent
arbitrator within thirty (30) days, and the said two (2) independent arbitrators
shall appoint a third independent arbitrator within thirty (30) days, and the
three (3) independent arbitrators will resolve the dispute in controversy by
majority vote in accordance with the terms of the Uniform Arbitration Act
currently codified in North Carolina General Statute, Article 45A, ss.1-567.1,
et seq. or any successor statutes. The expenses of arbitration shall be shared
equally by each party hereto, except that each party will pay the costs of his
own legal counsel and all other incidental expenses. The parties hereto agree to
be bound by the results of the arbitration. The place of arbitration shall be
Orange County, North Carolina.
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date written below.
INVESTORS TITLE INSURANCE COMPANY
By:_________________________________
Its _______________________________
Date:_____________________
X. XXXXX FINE
____________________________________
Date:_____________________
11
