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EXHIBIT (c)(14)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), between Acordia, Inc., a
Delaware corporation, (the "Company"), and Xxxxxx X. Newborn, Jr. (the
"Executive"), dated as of the 1st day of June, 1994.
WITNESSETH:
WHEREAS, the Company desires to assure itself of the services
of Executive for the period provided in this Agreement, and Executive is willing
to serve in the employ of the Company on a full-time basis for such period, all
in accordance with the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby employs Executive, and
Executive hereby accepts such employment with the Company for the period
provided for in Section 2, all upon the terms and conditions contained in this
Agreement. As a condition to Executive's employment by the Company, Executive
affirms and represents that Executive is under no obligation to any former
employer or other person which is in any way inconsistent with, or which imposes
any restriction upon, Executive's acceptance of employment with the Company, the
employment of Executive by the Company, or Executive's undertakings under this
Agreement.
2. Term of Employment. Unless sooner terminated pursuant to
Section 15, the term of Executive's employment under this Agreement shall be for
a period commencing on the date hereof and continuing for nineteen (19) months
through December 31, 1995 (the "Initial Term"). If no termination has occurred
pursuant to Section 15 of this Agreement on or before November 30 of the then
current year, it being expressly understood and agreed that the Company does not
now, nor hereafter have any obligation to continue Executive in its employ after
expiration of the Initial Term, this Agreement shall automatically be extended
for an additional year term unless either party gives written notice of the
non-renewal to the other party on or before November 30th of the then current
year.
3. Duties. During the Employment Term, Executive shall render
general administrative and managerial services to the Company, or any Subsidiary
to which the Executive is assigned ("Assigned Subsidiary"), and shall perform
such other reasonable employment duties as the Chief Executive Officer of the
Company, or his designee, or the Board of Directors of the Assigned Subsidiary,
may from time to time prescribe. During the Employment Term, Executive shall
also serve, if elected, as an officer or director of the Company or any of its
subsidiaries, including, but not limited to, the Assigned Subsidiary. Executive
shall perform his duties at such places and times as the Chief Executive Officer
of the Company or the Board of Directors of the Assigned Subsidiary may
reasonably prescribe.
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Except as may otherwise be approved in advance by the Chief Executive Officer,
his designee, or Board of Directors of the Assigned Subsidiary with respect to
memberships on the Boards of Directors of, and other offices or positions in,
companies or organizations which, in their judgment, will not present any
conflict of interest with the Company or any of its subsidiaries or materially
affect the performance of Executive's duties and except during vacation periods
and reasonable periods of absence due to sickness, personal injury or other
disability, Executive shall devote his full time throughout the Employment Term
to the services required of Executive. Executive shall render his services
exclusively to the Company and its subsidiaries during the Employment Term, and
shall use his best efforts, judgment and energy, to improve and advance the
business and interests of the Company and its subsidiaries in a manner
consistent with the duties of Executive's position.
4. Salary. As compensation for the services to be performed by
Executive during the Employment Term, the Company shall pay or shall cause to be
paid to Executive, an annual base salary of not less than Eighty Thousand
Dollars ($80,000) (the "Base Salary"); the Base Salary together with any
adjustments or increments thereto being hereinafter referred to as the "Salary."
Should the Company elect to increase Executive's annual base salary during the
term of this Agreement, the Agreement shall be deemed amended to incorporate the
new increased annual base salary as if the new increased base salary had
originally been set forth herein. The payment of any Salary hereunder shall be
subject to applicable withholding and payroll taxes, and such other deductions
as may be required under the Company's employee benefit plans. Any Salary
payable shall be paid in installments in accordance with the Company's salary
administration practices as they may from time to time exist and subject to
withholdings and payroll deductions.
5. Benefits. In addition to the payments required by section 4
to be paid to Executive during the Employment Term, Executive shall:
(a) be eligible to participate in all employee fringe
benefits, stock option, bonus and incentive compensation programs or
plans and any pension and/or profit sharing plans that may be provided
by the Company for its key executive employees in accordance with the
provisions of any such programs or plans; provided, however, that the
Company expressly reserves the right to alter, modify, amend or
terminate any such programs or plans at any time and for any reason
during the Employment Term;
(b) participate in any life or other similar insurance plans,
medical and health plans or other employee welfare benefit plans that
may be provided by the Company for its key executive employees in
accordance with the provisions of any such plans;
(c) be entitled to annual paid vacation in accordance with
Company policy that may be applicable to key executive employees; and
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(d) be entitled to sick leave and sick pay in accordance with
any Company policy that may be applicable to key executive employees.
6. Expenses. The Company shall, upon submission of expense
reports acceptable to the Company, reimburse Executive in accordance with
existing Company policy for all reasonable and necessary business expenses
incurred by him in connection with the performance of Executive's obligations.
7. Death of Executive. In the event Executive's employment is
terminated as a result of Executive's death, Executive's spouse or, if the
Executive is not married at the time of his death, the estate of Executive shall
be entitled to receive Executive's Salary earned through the date of death.
8. Disability of Executive. In the event Executive's employment
is terminated as a result of Disability, as defined in section 15 of this
Agreement, Executive shall be entitled to receive his Salary and Benefits as
described in sections 4 and 5 of this Agreement through the date of termination.
9. Termination of Executive Other Than for Cause. In the event
Executive's employment is terminated by the Company other than for cause (as
defined in section 15 of this Agreement), Executive shall be entitled to receive
the greater of (i) twelve months Salary or (ii) the Salary remaining to be paid
through the date the Agreement would have expired but for such termination; such
amount to be paid in monthly installments or in one lump sum, at the option of
the Company, as soon as reasonably possible following the termination of
Executive.
10. Employment Relationship. Executive acknowledges that
Executive's employment by the Company creates a relationship of confidence and
trust between Executive and the Company with respect to certain information
applicable to the business of any Existing Client or Potential Client (as the
terms "Existing Client" and "Potential Client" are respectively defined in
Section 15) of the Company or its subsidiaries which may be made known to
Executive during the period of his employment.
11. Proprietary and Confidential Information. Executive
acknowledges that the Company possesses and will continue to possess information
that has been created, discovered or developed by, or otherwise become known to
it (including, without limitation, information created, discovered, developed or
made known by Executive during the period of or arising out of his employment)
or in which property rights have been or may be assigned or otherwise conveyed
to the Company which information has commercial value in the Business and is
treated by the Company as confidential. Executive further acknowledges and
agrees that the success of the Company's Business depends, in part, upon an
in-depth knowledge of the needs of the Company's customers and clients and
serving these needs through frequent contacts, and that the Company has invested
substantial time, money and manpower to develop such relationships.
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12. Non-Disclosure. Executive shall not without the prior written
consent of the Chief Executive Officer of the Company (i) use for Executive's
benefit or disclose at any time during Executive's employment by the Company, or
thereafter, except to the extent required by the performance by Executive of his
duties as an executive of the Company, any information obtained or developed by
Executive while in the employ of the Company with respect to any customers,
suppliers, products, employees, financial affairs, business methods or services
of the Company or any of its subsidiaries (including, without limitation,
customer lists, pricing, underwriting, marketing, financial or sales
information, forecasts, business and strategic plans, customer needs and renewal
dates, personnel, applications to or any matters pending or under the
jurisdiction of any regulatory agency or court, any threatened litigation, and
corporate policies and procedures), or any other confidential matter or trade
secrets, except information which at the time is generally known to the public
other than as a result of disclosure by Executive not permitted hereunder, or
(ii) take with Executive upon leaving the employ of the Company any document or
paper relating to any of the foregoing or any physical property of the Company
or any of its sources with which insurance is placed, policyholders, expiration
or renewal dates, inspection or credit reports, and data on insurance risks
being written.
13. Return of Property. Upon termination of Executive's employment
for any reason, or at any other time the Company requests in writing, Executive
shall immediately deliver to the Company all memoranda, notes, plans, records,
reports and other documents (and copies thereof) and other property in
Executive's possession or control relating to the business of the Company or any
of its subsidiaries.
14. Competition, etc. During Executive's employment by the
Company and during the two (2) year period commencing on the date of Executive's
termination of employment:
(a) Executive will not make any statement or perform any act
intended to advance an interest of any existing or prospective
competitor of the Company or any of its subsidiaries in any way that
will or may materially injure an interest of the Company or any of its
subsidiaries in its relationship and dealings with Existing or
Potential clients, or solicit or encourage any other executive of the
Company or any of its subsidiaries to do any act that is disloyal to
the Company or any of its subsidiaries or inconsistent with the
interests of the Company or any of its subsidiaries interests or in
violation of any provision of this Agreement;
(b) Executive will not discuss with any Existing or Potential
client of the Company or any of its subsidiaries the present or future
availability of services or products by a business, if Executive has or
expects to acquire a proprietary interest in such business or is or
expects to be an employee, officer or director of such business, where
such services or products, are competitive with services or products
which the Company or any Subsidiary provides and where the acquisition
of such proprietary interest or Executive's becoming an employee,
officer or director of such business will or may materially injure an
interest of the Company or any of its subsidiaries;
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(c) Executive will not make any statement or do any act
intended to cause any Existing or Potential client of the Company or
any Subsidiary to make use of the services or purchase the products of
any competitive business in which the Executive has or expects to
acquire a proprietary interest or in which Executive is or expects to
be made an employee, officer or director, if such services or products
in any way relate to or arise out of the services or products sold or
provided or expected to be sold or provided by the Company or any of
its subsidiary to any existing or potential client;
(d) Executive will not directly or indirectly employ, solicit
for employment, or advise or recommend to any other person not
affiliated with the Company or of its subsidiaries that they employ or
solicit for employment, any employee of the Company or of its
subsidiaries.
For purposes of this Section 14, proprietary interest in a
business is ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of such business. Executive shall be
deemed to expect to acquire a proprietary interest in a business or to be made
an officer or director of such business if such possibility has been discussed
with any officer, director, employee, agent, or promoter of such business.
Notwithstanding anything in this Section 14 to the contrary, Executive's
engagement in, ownership of, performance of services for, participation in or
connection with any business or organization other than the Company or a
Subsidiary, with respect to which the Chief Executive Officer of the Company,
has consented in writing shall not be deemed a breach of this Agreement.
15. Termination. Executive's employment shall be terminated
upon the occurrence of any of the following:
(a) the death of Executive;
(b) Executive's disability (as such term is defined pursuant
to the provisions of the Company's long-term executive disability plan,
as in effect from time to time) ("Disability");
(c) the termination of Executive's employment by Executive at
any time for any reason whatsoever (including, without limitation,
resignation or retirement) provided Executive submits 90 days' prior
written notice of such termination to the Chief Executive Officer of
the Company and/or Board of Directors of the Assigned Subsidiary;
(d) the termination of Executive's employment by the Company
at any time "for cause", such termination to take effect immediately
upon written notice by the Company to Executive; or
(e) the termination of Executive's employment by the Company
other than for cause, such termination to take effect immediately upon
written notice by the Company to Executive.
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For purposes of this Agreement, the term "Potential Client"
shall mean a person or entity who was the target of sales or marketing activity
by the Company during the one (1) year period preceding the Executive's
termination of employment or, in the event Executive has been employed by the
Company less than one (1) year at the time of termination, during the period of
Executive's employment with the Company. The term "Existing Client" shall mean a
person or entity who is a customer of the Company at the time of Executive's
termination of employment or with whom the Executive had direct contact on
behalf of the Company at any time during the period of Executive's employment
with the Company.
For purposes of this Agreement, the term "for cause" or
"cause" shall mean a reasonable determination by the Chief Executive Officer of
the Company, that Executive (i) failed to obey the reasonable and lawful orders
of the Company's Chief Executive Officer or the Board of Directors of the
Assigned Subsidiary, (ii) failed to achieve reasonable performance objectives,
(iii) acted with gross negligence in the performance of his obligations or in a
manner materially detrimental to the Company and/or its subsidiaries, (iv)
willfully breached or habitually neglected his duty, (v) has been convicted of a
felony or committed any act involving dishonesty or fraud, or (vi) violated any
provisions of Sections 12 through 14.
16. Nonalienation. Except as may otherwise be required by law,
no right to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, bankruptcy or hypothecation or to exclusion, attachment, levy or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no effect.
17. Assignment. The Company, in its sole discretion, may
assign its rights and duties under this Agreement, but Executive may not. This
Agreement shall be binding upon and inure to the benefit of (a) the Company
and its successors and assigns and any purchaser of the Company or substantially
all of the assets of the Company and (b) Executive, and his designees and his
estate.
18. Change in Control. Notwithstanding anything to the
contrary expressed or implied herein, Executive shall be entitled to the
benefits set forth in Section 9 (in addition to any change of control benefits
under the Acordia, Inc. 1992 Stock Compensation Plan) if, following a change in
control of the Company, (i) Executive is assigned to any duties substantially
inconsistent with his position, duties or responsibilities with the Company
immediately prior to the change in control or his duties or responsibilities are
substantially reduced as compared with such duties and responsibilities
immediately prior to the change in control; (ii) Executive's Salary is
materially reduced as compared to his Salary immediately prior to the change in
control; (iii) the Company fails to obtain the assumption of its obligations to
perform this Agreement by any successor; or (iv) the Company's long-term
strategic plan is materially changed or abandoned such that the maximum
potential payout of incentive compensation to Executive is substantially
reduced. For purposes of this Agreement, a "change in control" of the Company
shall be deemed to have occurred if (i) any "person" (within the meaning
ascribed to such term in Sections 13(d) and 14(d) of the Securities Exchange Act
of
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1934 (the "Exchange Act"), as in effect on the date of this Agreement) becomes
the "beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange
Act, as in effect on the date of this Agreement), directly or indirectly, of
securities of the Company representing 50% or more of the combined voting power
of the Company's then outstanding securities; (ii) at any time less than a
majority of the members of the Board of Directors of the Company shall be
persons who were either nominated for election by the Board or were elected by
the Board; (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 60% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; or (iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets.
19. Notices. Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and will be deemed to
have been given when delivered in person (to Executive if such notice is for
Executive) or five days following mailing by first class certified or registered
mail, postage prepaid, to Executive at his home address, or such addresses as
Executive shall have designated in writing, or if to the Company, to the
attention of the Chief Executive Officer, at the Company's principal place of
business.
20. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana.
21. Severability. If any provision of this Agreement shall be
determined to be invalid, illegal or unenforceable in whole or in part, neither
the validity of the remaining part of such provision nor the validity of any
other provision of this Agreement shall in any way be affected.
22. Waiver. Failure to insist upon strict compliance with any
of the terms, covenants or conditions of this Agreement shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power under this Agreement at any one or more
times be deemed a waiver or relinquishment of such right or power at any other
time or times.
23. Entire Agreement; Modifications; and Conditions. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes (a) all prior agreements, oral and written,
between the Company and Executive with respect to Executive's employment. This
Agreement may be modified or amended only by an instrument in writing signed by
both the Company and Executive.
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24. 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 agreement.
25. Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any of its provisions.
26. Remedies. Executive acknowledges that a remedy at law for
any breach or threatened breach of the provisions of this Agreement would be
inadequate and therefore agrees that the Company shall be entitled to injunctive
relief, both preliminary and permanent, in addition to any other available
rights and remedies in case of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available for any such breach or
threatened breach. Executive further acknowledges and agrees that in the event
of a breach by Executive of any provision of this Agreement, the Company shall
be entitled, in addition to all other remedies to which the Company may be
entitled under this Agreement, to recover from Executive all reasonable attorney
fees incurred by the Company in enforcing this Agreement. The Company
acknowledges and agrees that in the event the Executive is the prevailing party
in an action by the Company to enforce this Agreement, the Executive shall be
entitled to recover from the Company all reasonable attorneys' fees incurred by
the Executive in defending the action.
IN WITNESS WHEREOF, the Company and Executive have duly
executed and delivered this Agreement as of the day and year first above
written.
EXECUTIVE
By: /s/ Xxxxxx X. Newborn, Jr.
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Date: 6-1-94
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ACORDIA, INC.
By: /s/L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
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Title: Chairman of the Board, Chief
Executive Officer and President
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Date: 6-3-94
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