EXHIBIT 10.18
CONSULTING, NON COMPETE AND PAYMENTS
AGREEMENT
THIS AGREEMENT IS MADE AND ENTERED INTO BY AND BETWEEN ALLEN R.
FREEDMAN ("FREEDMAN") AND FORTIS, INC. ("FORTIS").
WHEREAS Freedman, Fortis and Fortis Insurance N.V. have entered into an
agreement on this same date to provide for Freedman's retirement on July 31,
2000 ("Retirement Agreement") and to provide for certain obligations of each
party in connection with such retirement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Retirement Agreement and for other good and valuable
consideration, receipt and sufficiency whereof being hereby acknowledged, the
parties hereto do hereby agree as follows:
1. PAYMENTS. Fortis shall pay to Freedman, his beneficiaries or
his estate, twelve quarterly payments of $157,000 in advance, beginning on
August l, 2000 and continuing on each November 1, February 1, May 1 and August l
thereafter through May 1, 2003 and two annual payments of $607,000 in advance,
beginning on August 1, 2003 and continuing on August l, 2004. Freedman may
designate in writing from time to time the beneficiaries of these payments and
such payments shall be made in accordance with such designation. Upon Freedman's
death without any such designation, the remaining payments will be paid to
Freedman's estate. If Fortis shall fail to pay any such quarterly or annual
payment after having received 30 days written demand for such payment, all
remaining payments shall come due and payable. Freedman shall be entitled to all
costs and expenses, including reasonable attorneys' fees, incurred by Freedman
in collecting the amounts due hereunder.
2. CONSULTING. Freedman agrees to provide consulting services to
Fortis, from time to time, for a period of three years from and after the
termination of his services as an employee of Fortis, at such times as may
reasonably be requested by Fortis, subject to Freedman's other obligations and
commitments, provided, however, that his consulting services will be provided
only in Florida, will not exceed 30 days of services per year and will involve
consulting only (i) with respect to all charitable organizations directly or
indirectly controlled by Fortis, including serving as a director of each such
organization if requested by Fortis, and (ii) with respect to the credit related
insurance business of Fortis and its direct and indirect subsidiaries conducted
in Florida. Freedman shall be an independent contractor in providing such
services. Fortis shall pay Freedman's reasonable out of pocket expenses incurred
in providing consulting services requested by Fortis hereunder. Freedman shall
be relieved of this obligation upon his death or disability.
3. COVENANT NOT TO COMPETE. The parties acknowledge and agree
that in the course of Freedman's services provided to Fortis and its Parents (as
defined herein), including but not limited to his service as CEO of Fortis, his
membership on the Boards of Fortis and certain of its affiliates, and his
participation on various committees involved in management and planning of
Fortis and its Parents, Freedman has become privy to a substantial amount of
trade secrets and
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Confidential Information (as defined herein) of Fortis and its Parents.
Accordingly, the parties acknowledge and agree that it is both reasonable and
necessary for the protection of such trade secrets and Confidential Information,
for Freedman to refrain from competition with Fortis and its Parents as provided
in this Paragraph 3. Freedman covenants and agrees that, from the date of this
Agreement until the dates set out hereafter, Freedman shall not without the
prior written consent of Fortis, directly or indirectly, for Freedman's benefit
or on behalf of any other person, firm, partnership or corporation, whether
alone or as a partner, officer, director, manager or shareholder, do any one or
more of the following:
(a) prior to August 1, 2003 be employed by, engage in or
render any services to or consult with any business that is in
competition in a substantive way within the United States or outside
the United States with Fortis, provided that mere ownership of not more
than five percent (5%) of the shares of stock of any corporation having
a class of equity securities actively traded on a national or foreign
exchange or on NASDAQ shall not be deemed to violate the provisions of
this Agreement; or
(b) prior to August 1, 2003 solicit any customer or
client of Fortis or its direct and indirect subsidiaries to purchase or
procure from an entity or enterprise that competes with the business of
Fortis any services offered by Fortis to such customer or client at the
time of Freedman's retirement; or
(c) prior to August 1, 2005 encourage, solicit, or induce
any officer or employee of Fortis or its direct and indirect
subsidiaries to terminate his or her employment with Fortis and to
enter an employment relationship with any person or entity engaged in
any business activity competing with Fortis; or
(d) prior to August 1, 2001 be employed by, engage in or
render any services to or consult with any business that is in
competition in a substantive way within the United States or outside
the United States with Fortis (NL) N.V. or Fortis (B), which are the
ultimate parents of Fortis, or the affiliates or direct and indirect
subsidiaries of either such parent (such parents, together with any
direct and indirect subsidiaries or affiliates of either parent being
referred to collectively as "Parents" and singularly as "Parent"),
provided that mere ownership of not more than five percent (5%) of the
shares of stock of any corporation having a class of equity securities
actively traded on a national or foreign exchange or on NASDAQ shall
not be deemed to violate the provisions of this Agreement; or
(e) prior to August 1, 2001 solicit any customer or
client of Parents to purchase or procure from an entity or enterprise
that competes with the business of either Parent any services offered
by any Parent to such customer or client at the time of Freedman's
retirement; or
(f) prior to August 1, 2005 encourage, solicit, or induce
any officer or employee of any Parent to terminate his or her
employment with such Parent and to enter an employment relationship
with any person or entity engaged in any business activity competing
with Parent or Fortis.
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Fortis agrees to act reasonably in reviewing any request by Freedman under this
provision and shall not unreasonably withhold or delay its consent, but nothing
contained herein shall be construed to limit the legitimate competitive rights
and protections afforded to Fortis and its affiliates by this provision. In
addition, if Fortis fails to respond in writing to a request by Freedman within
30 days of receipt of such request, such request shall be deemed to have been
approved by Fortis. For the purposes of this Paragraph 3, (i) a person shall be
deemed to be in competition with or to compete with Fortis only if the business
activities of such person directly compete with one of the operating direct and
indirect subsidiaries of Fortis owned by Fortis at the time of Freedman's
retirement or acquired by Fortis within six months after the retirement, and
(ii) a person shall be deemed to be in competition with or to compete with a
Parent only if the business activities of such person directly compete in the
insurance industry, including but not limited to bank insurance, with a Parent
that is a Parent at the time of Freedman's retirement or becomes a Parent within
six months after the retirement; provided, however, that the provisions of
Sections 3(a) and 3(d), respectively, shall in no event be deemed violated by
employment, consulting or the rendering of services that relate solely to the
business activities that are not described in clauses (i) and (ii),
respectively, of this sentence. However, Freedman agrees that prior to April 30,
2005, he will not be employed by, engage in or render any services to or consult
with ING, Aegon, or Zurich.
4. REASONABLENESS OF RESTRICTIONS.
(a) Freedman has carefully read and considered the
provisions of this Agreement and agrees that the restrictions set forth
in Paragraph 3 (including, but not limited to, the time period of
restriction, the geographic area of restriction and the activities
restricted) are fair and reasonable and are reasonably required for the
protection of Fortis.
(b) In the event that any provision of Paragraph 3
relating to the time period of restriction, the geographic scope of the
restriction or the subject matter of the restriction shall be declared
by a court of competent jurisdiction or arbitration panel to exceed the
maximum time period, area or scope such court or panel deems reasonable
and enforceable, the provisions of Paragraph 3 shall be deemed to
become the maximum time period, area and/or scope which such court or
panel deems reasonable and enforceable.
5. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or the enforceability of any one or more of the
provisions hereof shall not affect the validity and enforceability of the other
provisions hereof. In the event that, notwithstanding the foregoing Paragraph 4,
any of the provisions of Paragraph 3 hereof shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though the invalid or unenforceable parts had not
been included therein.
6. REMEDY IN THE EVENT OF BREACH. In the event of an uncured
breach of any provision or covenant of this Agreement by Freedman, after having
first received 10 days written notice from Fortis advising of the breach, Fortis
shall be entitled to immediately cease and terminate any compensation payable
under Paragraph 1 of this Agreement, provided that if Fortis does not elect to
terminate the payments as provided above because it believes that monetary
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damages provided by such termination of payments would not be adequate and that
damages generally would be difficult or impossible to determine with accuracy,
then Fortis shall instead be entitled (without posting bond or other security)
to an injunction or injunctions to prevent breaches of the agreements in
Paragraph 3 of this Agreement and to enforce specifically such agreements in
accordance with their terms in any action instituted in any court of competent
jurisdiction. The prevailing party in any such action shall be entitled to costs
and expenses, including reasonable attorneys' fees, as a part of the remedies in
such action. Such remedies, included in this Paragraph, shall be in place of all
other remedies available at law or in equity, including, without limitation,
injunctions, damages, costs and reasonable attorney's fees. In exercising its
rights under this Paragraph, Fortis agrees to act reasonably and in good faith.
7. CONFIDENTIALITY. Freedman agrees that he will retain in
confidence and he will not use for his benefit or the benefit of others all
confidential or proprietary information that is not generally available to the
public and constitutes special, valuable and unique property of Fortis or any
Parent ("Confidential Information"), except as otherwise required by law or by
order or subpoena of a court, governmental agency or other body with apparent
jurisdiction to order disclosure. Freedman shall promptly notify Fortis of any
such requirement and use reasonable efforts to permit Fortis to challenge such
requirement. Confidential Information includes, without limitation, any and all
specifications, designs, business plans, financial information, proposals,
reports, marketing plans and information, cost or underwriting information,
customer information, sales volumes and other sales statistics, personnel data,
profit margins, sources of supply, pricing information, development plans,
business strategies, trade secrets, concepts and ideas, known to Freedman
concerning Fortis or its affiliates and their business. Freedman will hold all
such Confidential Information in trust and in strictest confidence, and will
protect the Confidential Information from dissemination, reproduction or
disclosure. The obligations of Freedman under this Paragraph shall survive
termination of employment and shall not apply or will cease to apply to
information that (a) has become generally known or available to the public
through no wrongful act of Freedman, or (b) has been disclosed by Fortis to
other Parties on a non-confidential basis.
8. GOVERNING LAW. The construction and interpretation of this
Agreement shall at all times and in all respects be governed by the laws of the
State of New York without reference to such state's conflict of laws provisions.
9. NOTICES. Unless otherwise required by law, all notices,
payments, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
if served personally on or transmitted by telecopier to whom such notice is to
be given, on the next day after being sent by an overnight, commercial air
carrier service, or when received if mailed to the party to whom notice is to be
given by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
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Freedman: 525 County Highway 40
Charlotteville, New York, 12036
With a copy to
Seth B. Freedman
607 Glenmary Rd.
St. Davids, Pennsylvania, 19087
Fortis: J. Kerry Clayton
Fortis, Inc.
One Chase Manhattan Plaza
New York, New York, 10005
Any party may change its address for purposes of this section and may add,
change or delete required copies by giving the other party written notice of the
new address in the manner set forth above.
10. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument representing the Agreement between the
parties.
11. ARBITRATION.
(a) Except as set forth in Paragraph 11(b), any claim,
controversy or dispute arising out of or relating to this Agreement, on
which an amicable understanding cannot promptly be reached, to the
maximum extent allowed by applicable law and irrespective of the type
of relief sought, shall be submitted to and resolved by arbitration,
and such arbitration shall be the sole remedy for such matter. Such
arbitration shall be heard and conducted in New York, New York and
shall be conducted expeditiously in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"), as
such rules shall be in effect on the date of delivery of demand for
arbitration, with the exception that the arbitrators may not award any
punitive or exemplary damages or any damages other than compensatory.
The prevailing party may be awarded costs and expenses, including
reasonable attorneys' fees. The award rendered by the arbitrators shall
be final, binding and non-appealable, and judgment upon such award may
be entered by any court having jurisdiction thereof.
(b) Any claims in equity pursuant to which a party is
seeking a temporary restraining order or an injunction may be pursued
in court. The parties hereto agree that any action or suit in any way
arising out of this Agreement, brought by any party hereto against
another party to this Agreement, shall be brought only in a court
located in New York County, State of New York, and each party hereto
(regardless whether such party is otherwise subject to personal
jurisdiction in New York County or the State of New York) consents and
submits to the jurisdiction of any local, state, or federal court
located within said county and state. Process may be served in any such
action on a party hereto by use of, and in accordance with, any of the
methods by which notice may be given to a party hereto under Paragraph
9 of this Agreement.
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12. SPECIAL PROVISIONS DEALING WITH TERMINATION OF FREEDMAN'S
EMPLOYMENT.
(a) If Freedman's employment with Fortis is terminated
prior to July 31, 2000 because of Freedman's death or disability,
because Fortis terminates such employment without Cause as hereinafter
defined, or for any other reason, other than voluntary termination of
employment by Freedman or termination of Freedman's employment by
Fortis for Cause, all provisions of this Agreement shall apply to the
parties as if Freedman had retired on July 31, 2000.
(b) If Freedman's employment with Fortis is terminated by
Freedman voluntarily prior to July 31, 2000 or if Freedman's employment
is terminated by Fortis for Cause prior to July 31, 2000, Fortis shall
be entitled to elect to cancel this Agreement or to treat such
termination as a retirement by Freedman as of July 31, 2000. If Fortis
elects to cancel this Agreement, it must act within 15 days of
Freedman's termination of employment by giving written notice to
Freedman in the manner provided in Paragraph 9 of this Agreement. A
cancellation of this Agreement shall be deemed to be a cancellation of
the Retirement Agreement. A cancellation of this Agreement means that
all of its provisions will be of no further force and effect and
Freedman shall be entitled to whatever other existing Fortis plans,
benefits and agreements that are applicable to Freedman in accordance
with the terms thereof.
(c) "Cause" for purposes of this Agreement shall mean a
termination of Freedman's employment by Fortis due to his willful gross
act, or willful gross omission, in violation of his lawful obligations
to Fortis, including, without limitation, the following: Freedman's
conviction of a felony that is connected with or related to the
performance of his obligations as an employee of Fortis; the willful
perpetration by Freedman of a gross fraud against or affecting Fortis;
or Freedman's willful participation in or willful allowance of the
commission by any of Freedman's subordinates of any act of commercial
bribery affecting or connected with Fortis or Freedman's duties to
Fortis; provided, however, Freedman shall be given written notice of
any matter that Fortis believes is Cause and shall be given 30 days to
cure any such matter that Fortis considers Cause, and any such matter
that shall have been so cured shall no longer constitute Cause.
IN WITNESS WHEREOF, Freedman and Fortis have duly executed this
Agreement as of the date set forth below.
ALLEN R. FREEDMAN
Date: 7/19/99 /s/ ALLEN R. FREEDMAN
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STATE OF NEW YORK )
COUNTY OF MANHATTAN ) ss.
On the 19th day of July, 1999, before me personally appeared, Allen R.
Freedman, to me known to be the person described herein and who executed the
foregoing instrument, and acknowledged that he voluntarily and willingly
executed the same as his free act and deed.
/s/ MELVIN SCHNEIDERMAN
-----------------------------
Notary Public
My Commission Expires:
MELVIN SCHNEIDERMAN
Notary Public, State of New York
No. 3-4932722
Qualified in New York County
Commission Expires July 26, 2000
___________________, 1999
[SEAL]
COMPANY:
FORTIS, INC.
Date: 7-19, 1999 By:/s/ J. KERRY CLAYTON
-------------------------
Title: Exec. V. P.
APPROVAL PURSUANT TO
CONSULTING, NON COMPETE AND PAYMENTS AGREEMENT
AND
JOINDER AGREEMENT
In connection with and immediately subsequent to the entering into of
the Consulting, Non Compete and Payments Agreement ("Agreement") with Fortis,
Inc., dated July 19th, 1999, Allen R. Freedman ("Freedman") has requested that
Fortis approve the following activities as being excluded from Paragraph 3 of
the Agreement and excluded from Paragraph 10 of Freedman's Joinder Agreement
("Joinder Agreement") with respect to the Fortis Supplemental Executive
Retirement Plan ("SERP") from and after the termination of Freedman's employment
with Fortis:
1. Consulting in connection with Freedman's son, Seth Freedman,
with respect to integrated health care delivery systems and
health plans that predominately serve the health care market,
or with respect to comparable activities where the primary
business activities of the persons for whom the consulting is
performed are not directly competitive with a direct or
indirect subsidiary of Fortis.
2. Investment banking activities in the merger and acquisition
area, including merger and acquisition activities involving
insurance companies, except as provided in the next sentence.
This approval does not authorize Freedman to represent any
person undertaking (i) to acquire any interest in Fortis, any
subsidiary thereof or any line of business of Fortis or of a
Fortis subsidiary, (ii) to sell a company or line of business
to Fortis or a subsidiary thereof or (iii) to acquire a
company or a line of business that, to the best of Freedman's
knowledge, Fortis is undertaking to acquire.
Freedman has reaffirmed that all provisions of the confidentiality agreements
that he has entered with Fortis, including Paragraph 7 of the Agreement and
Paragraph 11 of his Joinder Agreement, shall continue to apply in connection
with any of the foregoing activities.
In response to the request by Freedman as expressed in this document, Fortis
does hereby grant its approval to the above business activities by Freedman and
agrees that as a result of this approval, such activities will not be restricted
by the provisions of Paragraph 3 of the Agreement and or by Paragraph 10 of the
Joinder Agreement.
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In witness whereof, Fortis and Freedman have duly executed this Approval this
19th day of July, 1999.
FORTIS, INC.
By:/s/ J. KERRY CLAYTON
---------------------------
Authorized Officer
/s/ ALLEN R. FREEDMAN
---------------------------
ALLEN R. FREEDMAN