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EXHIBIT 10(iii).3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 5th day of
March, 1999, by and between American Bankers Insurance Group, Inc., a Florida
corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Consultant");
WHEREAS, the Company has entered into that certain Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), by and among
the Company, Fortis, Inc. and Greenland Acquisition Corp., pursuant to which
Fortis, Inc. will acquire all of the issued and outstanding common stock of the
Company, by virtue of the merger of Greenland Acquisition Corp. with and into
the Company (the "Merger"); and
WHEREAS, as an inducement to Fortis, Inc. to enter into the Merger
Agreement, Consultant has agreed to enter into this Agreement; and
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, $10.00 in hand paid
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. CONSULTING ARRANGEMENT. Subject to the consummation of the
transactions contemplated by the Merger Agreement, the Company hereby engages
the Consultant for the term and upon the terms and subject to the conditions
hereinafter set forth. The Consultant hereby accepts such engagement. The
parties acknowledge and agree that for all purposes under and in connection with
this Agreement, the Consultant shall be deemed an independent contractor and not
an employee of the Company.
2. TERM. The Company shall retain the Consultant for the term of
twenty-four (24) months commencing at the Effective Time (as defined in the
Merger Agreement) (the "Minimum Term"). Following the expiration of the Minimum
Term, the Consultant's retention by the Company shall continue only upon written
agreement by both parties.
3. DUTIES. The Consultant's duties shall include consulting with
officers of the Company, from time to time, upon the Company's request during
regular business hours, as mutually agreeable to the Company and Consultant.
4. EXPENSES. The Consultant is authorized to incur reasonable business
expenses in performing services requested by the Company under this Agreement.
The Company shall promptly reimburse the Consultant for such expenses upon
presentation of an itemized expense statement together with supporting vouchers
therefor and such other information as the Company may from time to time
reasonably require.
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5. OFFICE. The Company shall provide Consultant with reasonable office
space in Coral Gables, Florida, in premises that are currently leased to the
Company under a triple net lease, for the remainder of the initial five-year
term of such lease, provided that the cost per year of such lease shall not
exceed $175,000.
6. EXECUTIVE SEVERANCE CONTRACT PAYMENT. Consultant presently has an
Executive Severance Contract with the Company, dated February 1, 1990 (the
"Severance Agreement"). Immediately after the Effective Time, Consultant's
employment with the Company shall terminate, this Agreement shall take effect,
and the Company shall pay to the Consultant a lump sum of $8,045,000 as full
payment of the Company's obligations under the Severance Agreement (subject to
adjustment so that the amount received by the Consultant as a result of the
Merger shall not exceed 2.99 times the Consultant's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended).
7. PROPRIETARY PROPERTY; CONFIDENTIAL INFORMATION.
(a) PROPRIETARY PROPERTY. The term "Proprietary Property"
includes any and all ideas, creations, developments, improvements, inventions,
trade secrets, patents, copyrights, trademarks, trade names, logos, processes,
computer programs, databases, spread sheets, documentation, models,
methodologies, strategies, material works of authorship, know-how and methods of
applying and putting into practice any such items that are created, developed or
discovered by or for the Company or are acquired or licensed on a proprietary
basis by the Company from others. Proprietary Property does not include
proprietary technical information generally known in the business in which the
Company operates, even if disclosed to the Consultant or known or developed by
the Consultant as a consequence of or through the Consultant's performance of
services hereunder.
(b) CONFIDENTIAL INFORMATION. The term "Confidential
Information" includes any and all information that relates to the Company's
products and services (including their development, marketing and sale), the
financial, marketing and other aspects of the Company's operations, and the
intellectual property and business and other rights that it owns, licenses or
otherwise has the right to use, that is not generally known outside the Company
(other than to the Company's customers or suppliers or other third parties in
connection with their business with the Company) and that is disclosed or
accessible to or known or developed by the Consultant as a consequence of or
through the Consultant's performance of services hereunder or prior performance
of services for the Company. It includes, but is not limited to, memoranda,
files, books and records, financial and accounting methodologies, catalogs,
lists of customers or prospects, price lists, advertising and promotional
materials, packaging design, business plans, operating policies and manuals,
internal controls, policies, procedures and guidelines, and other business
information and records used in the conduct of business (whether in tangible
form--including written documents, magnetic tapes, disks or other media--or
intangible
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form), agreements and understandings between the Company and third parties, and
trade secrets, software and other licenses, source codes and object codes,
designs, drawings, plans, and other such information and rights, intangible or
otherwise, whether or not such information comes within the term "Proprietary
Property."
(c) RIGHTS TO PROPRIETARY PROPERTY. The Consultant agrees
that, except as the Company may otherwise expressly agree in writing, (i) the
Consultant shall have no rights and shall acquire no rights to any Proprietary
Property that comes, or has come, within the Consultant's knowledge or
possession through or as a consequence of the Consultant's performance of
services hereunder or prior to the effective time of this Agreement, and (ii)
any information or other property that is, or has been, invented, created,
discovered, written, developed, furnished or produced by the Consultant, solely
or jointly, wholly or partly, while performing services for the Company
hereunder or prior to the effective time of this Agreement or with information
proprietary to the Company (the "Developments"), shall be the exclusive property
of the Company, and the Consultant shall have no right, title or interest of any
kind in and to the Developments, including any results or proceeds therefrom.
The Consultant hereby sells, transfers and assigns to the Company all right,
title and interest which the Consultant may be deemed to have in and to the
Developments, including the right to patent, register copyrights for, or obtain
legal protection for the Developments, and agrees to communicate promptly and
disclose to the Company, in such form as the Company requests, all information,
details and data pertaining to any Developments. At any time during or
subsequent to the term of this Agreement, upon the request and at the election
and expense of the Company, the Consultant will patent, register copyrights for
or obtain other legal protection for, or permit the Company to patent, register
copyrights for, or obtain other legal protection for, any Developments and
execute any and all assignments, instruments of transfer, or other documents
that the Company deems necessary or appropriate to transfer to the Company all
rights in or to the Developments or to evidence the Company's ownership of such
rights in or to any of them.
(d) USE AND DISCLOSURE. Except as may be otherwise expressly
authorized in writing by the Company, the Consultant shall not use any
Proprietary Property or Confidential Information, except for the benefit of the
Company, and shall not disclose any Confidential Information to any other
person. As used in this Agreement, unless the context otherwise requires the
term "person" includes, but is not limited to, any individual, partnership,
limited liability entity, association, firm, corporation, trust, unincorporated
organization, joint venture or other entity. This restriction on use and
disclosure applies without limitation as to time or place.
(e) APPLICABILITY TO THE COMPANY AND ITS AFFILIATES. For
purposes of this Section 5 and Sections 6, 7 and 8 of this Agreement, references
to the Company shall be deemed to include the Company and any corporations or
other business entities affiliated with it.
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8. COMPANY PROPERTY. Following termination of this Agreement for any
reason, the Consultant shall promptly return to the Company all property of the
Company in the possession or control of the Consultant (and any and all copies
thereof) including, without limitation, all Proprietary Property and
Confidential Information.
9. NON-COMPETITION. During the period commencing on the date of this
Agreement and ending two (2) years after the expiration of this Agreement (the
"Restricted Period"), the Consultant shall not, either on the Consultants own
account or for any other person or entity, directly or indirectly, (a) engage in
any activities or render any services which are similar or reasonably related to
those performed for or rendered to or on behalf of the Company during the term
of this Agreement or the two-year period preceding the date of this Agreement
(together, the "Extended Term"), to any business which competes with the Company
in any place where the Company is engaged or, to the knowledge of the
Consultant, intends to engage in business or (b) own a greater than five percent
equity interest in or be connected with the management, operation or control of
any such business; provided however that the foregoing shall not be deemed to
exclude the Consultant from acting as a director, officer or employee of or a
consultant to other businesses for the benefit of the Company with the consent
of the Company's Board of Directors.
10. NON-SOLICITATION. During the Restricted Period, the Consultant
shall not directly or indirectly: (a) attempt to induce, or assist others to
attempt to induce, any person who was or was actively negotiating to become a
customer of the Company at any time during the Extended Term, to reduce or
terminate such customer's business with the Company or to direct any of its
business that is then being or may be done with the Company to any other person;
(b) attempt to induce, or assist others to attempt to induce, any employee of
the Company to terminate his or her employment with the Company; and (c) whether
in an individual capacity or as the owner, partner, employee or agent of any
entity, employ or offer employment to any person who is or was employed by the
Company during the Extended Term unless such person shall cease to have been
employed by the Company in any capacity for a period of at least one year.
11. NOTICES. All notices and other communications provided for in this
Agreement shall be in writing and shall be deemed given if delivered personally
or by commercial delivery service, mailed by registered or certified mail
(return receipt requested), or sent via facsimile transmission, all charges
prepaid, to the intended at the address below (or such other address for a party
as shall be specified by like notice):
If to the Company: American Bankers Insurance Group, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxxx, XX 00000-0000
Attention: Chief Executive Officer
If to the Consultant: Xxxxxx X. Xxxxxx
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12. SURVIVAL. Sections 5, 6, 7, 8, 11 and 12 shall survive the
termination of this Agreement, except as otherwise provided in such sections. In
the event the Company is acquired or merges with another entity, this Agreement
shall survive unless otherwise agreed in writing by both parties.
13. REMEDIES FOR BREACH OF AGREEMENT. If the Consultant commits a
breach or threatens to commit a breach of any of the provisions of this
Agreement, the Company shall have the right to have the provisions of this
Agreement specifically enforced by any court having equity jurisdiction without
having to prove the inadequacy of the available remedies at law or irreparable
injury, it being acknowledged and agreed as between the parties hereto that any
such breach or threatened breach will cause irreparable injury to the Company
and that money damages may not provide an adequate remedy to the Company. In
addition, the Company may take and pursue all such other actions and remedies as
may be available to the Company at law or in equity and shall be entitled to
such damages as the Company can demonstrate that the Company has sustained by
reason of such breach, together with court costs and attorneys' fees.
14. OTHER. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof, supersedes all prior
agreements and understandings between the parties regarding such subject matter,
may be executed in two or more counterparts which together shall constitute a
single agreement, may be amended only by a written instrument executed by the
parties hereto, may not be assigned by either party without the written consent
of the other (except that it may be assigned by the Company to any affiliated
company or to a successor in connection with a merger, consolidation or sale of
all, or substantially all, of the assets of the Company or any such assignee),
and shall inure to the benefit of and be binding upon the parties and their
respective successors. Forbearance by either party to require performance of any
provision hereof shall not constitute or be deemed a waiver by such party of
such provision or of the right thereafter to enforce the same, and no waiver by
either party of any breach or default hereunder shall constitute or be deemed a
waiver of any subsequent breach or default, whether of the same or similar
nature or of any other nature, or a waiver of the provision or provisions
breached or with respect to which such default occurred. In the event any of
Sections 5, 6, 7 or 8 is held not to be enforceable in accordance with its
terms, the Consultant and the Company hereby agree that such Section shall be
reformed to make such Section enforceable in a manner which provides the Company
the maximum rights permitted by law consistent with the provisions of such
Sections 5, 6, 7 and 8. This Agreement shall be governed in all respects by the
laws of the State of Florida, without reference to the principles of conflict or
choice of law thereof. Both the Company and the Consultant hereby agree to
submit to the exclusive jurisdiction of the federal and state courts within the
State of Florida in any action or proceeding arising out of or relating to this
Agreement, agree that process may be served upon them in any manner authorized
for those courts, and covenant not to assert or plead any objection which they
might otherwise have to such jurisdiction and such process.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year set forth above.
AMERICAN BANKERS INSURANCE GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President - Finance
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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