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EXHIBIT 10(ii).2
CONSULTING AND NONCOMPETITION AGREEMENT
THIS AGREEMENT ("Agreement") is made by and between American Bankers
Insurance Group, Inc., a Florida corporation (the "Company") and R. Xxxx Xxxxxx
(the "Consultant");
WHEREAS, the Company desires to engage the services of the Consultant,
a director, stockholder and former officer of the Company, and to enter into an
agreement embodying the terms of such engagement; and
WHEREAS, the Consultant desires to accept such engagement and enter
into such agreement;
NOW, THEREFORE, in consideration of the promises and the mutual
promises and covenants herein contained, the parties hereto mutually agree as
follows:
1. CONSULTING ARRANGEMENT. 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 one
(1) year from the date of the termination of his employment with the Company
("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. During the term of this Agreement, the Consultant shall be
an independent contractor to the Company. The Consultant's duties include: (a)
consulting with officers of the Company upon their request during regular
business hours, and (b) promoting the goodwill of the Company by being
available to attend and attending insurance-related conferences and functions
as a representative of the Company. The Consultant shall devote only such time
and attention to the business of the Company as may be reasonably necessary to
perform the Consultant's duties under this Agreement, up to a maximum of 20
hours per month.
4. COMPENSATION. As compensation during the Minimum Term of this
Agreement, the Company shall pay the Consultant, and the Consultant shall
accept, the consulting fee of $1,035,000 to be paid in equal monthly
installments on the fifteenth (15th) day of each month during the Minimum Term.
5. EXPENSES. The Consultant is authorized to incur reasonable business
expenses in performing services under this Agreement. The Company shall
promptly reimburse the Consultant for such expenses upon presentation of an
itemized expense statement together with
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supporting vouchers therefor and such other information as the Company may from
time to time reasonably require.
6. 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 which 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 which it owns, licenses or
otherwise has the right to use, which 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 which 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 - including written documents, magnetic tapes,
disks or other media - or intangible 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 with 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
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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 or 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,
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 6 and Sections 7, 8 and 9 of this Agreement,
references to the Company shall be deemed to include the Company and any
corporations or other business entities affiliated with it.
7. 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.
8. NON-COMPETITION. During the period commencing on the date of this
Agreement and ending five (5) years after the expiration of this Agreement (the
"Restricted Period"), the Consultant shall not, either on the Consultant's 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, but 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.
9. 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
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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.
10. 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: R. Xxxx Xxxxxx
00 Xxxxxxxxx Xxxxx, #00X
Xxxxx Xxxxxx, XX 00000
11. SURVIVAL. Sections 6, 7, 8, 9, 12 and 13 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.
12. 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 show the Company has sustained by reason of
such breach, together with court costs and attorneys' fees.
13. 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 that 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
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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 6, 7, 8 or 9 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. Unless
the context otherwise requires, 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, and 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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement this
15th day of January, 1999.
AMERICAN BANKERS INSURANCE CONSULTANT
GROUP, INC.
By: __________________________ By:________________________
Xxxxxx Xxxxxx R. Xxxx Xxxxxx
Chief Executive Officer
