Exhibit 10.176
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made as of the 12th day of
April, 2001, by and between Insurance Auto Auctions, Inc., an Illinois
corporation (the "Company" or "IAA") and Xxxxxx X. Xxxxx ("Consultant").
WHEREAS, Consultant has unique experience and knowledge of the
operations of the Company;
WHEREAS, IAA desires to obtain the benefits of Consultant's experience
and know-how in connection with the operations of the Company, and accordingly,
IAA has offered to engage Consultant to render consulting and advisory services
to IAA on the terms and conditions hereinafter set forth;
WHEREAS, Consultant desires to accept such engagement upon such terms
and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, IAA and Consultant agree as
follows:
SECTION 1. CONSULTING TERMS AND DUTIES. Upon the terms and conditions
set forth herein, IAA hereby retains and engages Consultant as an independent
contractor, and Consultant hereby accepts such retention and engagement as an
independent contractor and agrees, to render such advisory and consulting
services to IAA with respect to matters pertaining to the Company's operations
as shall be specified from time to time by IAA's executive officers having
principal responsibility for the operations and any other matters in which
Consultant's experience and knowledge could prove beneficial to the Company.
SECTION 2. TERM. The term of Consultant's retention and engagement by
Company under this Agreement shall commence on April 9, 2001 and shall continue
through and expire on April 8, 2002 (the "Term").
SECTION 3. COMPENSATION.
(a) Availability and Fees. During the Term, Consultant
agrees to be available for consulting up to the maximum number of hours as set
forth below. In consideration for the availability of Consultant hereunder and
the services rendered pursuant to the Agreement, IAA will pay Consultant the
amount listed in the table below in such equal periodic payments as the Company
generally pays its employees, but in no event less frequently than monthly.
Consulting Monthly
Period Hours Per Month Consulting Fee
04/09/01 - 04/08/02 ten (10) $12,083.33
(b) Reimbursement of Expenses. Company shall reimburse
Consultant for those reasonable and necessary out-of-pocket expenses which have
been approved by IAA prior to their incurrence and which have been incurred by
Consultant in connection with the rendering of services hereunder. Any
reimbursement to be made by IAA pursuant to this Section 3(b) shall be made
following submission to IAA by Consultant of reasonable documentation of the
expenses incurred.
SECTION 4. RESTRICTIVE COVENANTS.
4.1 NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Consultant recognizes and acknowledges that certain
knowledge and information which it has acquired or developed relating to the
Company including, but not limited to (i) any information pertaining to the
finances, business, planning, operations, services, potential services,
products, potential products, technical information and/or know-how, computer
software, formulas, production, purchasing, marketing, sales, personnel,
customers, brokers, suppliers, or other information of IAA; (ii) any papers,
data, records processes, methods, techniques, systems, models, samples, devices,
equipment, compilations, invoices, customer lists, or documents of IAA; (iii)
any confidential information or trade secrets of any third party provided to IAA
in confidence or subject to other use or disclosure restrictions or limitations;
and (iv) any other information, written, oral, or electronic, whether existing
now or at some time in the future, whether pertaining to current or future
developments, and whether previously accessed during your tenure with IAA or to
be accessed during your future employment with IAA, which pertains to IAA's
affairs or interests or with whom or how IAA does business (hereinafter
collectively referred to as "Confidential Information") are the valuable
property of Company and shall be held by Consultant in confidence and trust for
the sole benefit of Company.
(b) Consultant agrees not to use, disclose, divulge or
publish, without the prior written consent of IAA, at any time during the term
hereof or thereafter, any Confidential Information. Provided, however, that
Confidential Information shall not include (a) information which is known to the
public or is generally known within the industry of businesses comparable to the
Company (other than as a result of Consultant's violation of this covenant) or
(b) information which Consultant is required to disclose pursuant to law or
order of a court having jurisdiction over Consultant (provided that Consultant
offers IAA an opportunity to obtain an appropriate protective order or
administrative relief against disclosure of such Confidential Information).
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(c) All memoranda, notes, lists, records and other
documents or papers (and all copies thereof), including such items stored in
computer memories, or microfiche or by any other means, made or compiled by or
on behalf of Consultant in connection with the rendering by Consultant of
consulting services hereunder, or made available by Purchaser to Consultant
relating to the Company, are and shall be IAA's property and shall be delivered
to IAA promptly on the request of IAA.
4.2 NON-COMPETITION.
(a) Except for the Permitted Activity (defined below),
for a period commencing on the date hereof and terminating at the end of the
Term of this Agreement (the "Restricted Period"), the Consultant, unless acting
in accordance with the Company's prior written consent (which consent may be
given by any duly authorized officer of the Company) shall not, anywhere in the
United States ("Restricted Territory") directly or indirectly, own, manage,
operate, control, finance or participate in the ownership, management,
operation, control or financing of, or be connected as an officer, director,
employee, principal, agent, representative, consultant, investor, owner,
partner, manager, joint venturer or similar affiliation with, any business or
enterprise engaged in the Business; provided, however, the Consultant may own,
directly or indirectly, securities of any person having a class of securities
(a) registered under the Securities Exchange Act of 1934 and (b) publicly
traded, if the Consultant is not a controlling person of, or a member of a group
which controls, such person and the Consultant does not, directly or indirectly
own more than two percent (2%) of any class of securities of such person (the
"Permitted Activity"). "Business" shall mean the business of towing, processing,
appraising, auctioning and selling, and processing claims with respect to
damaged, abandoned, repossessed, total loss and recovered theft automobiles,
trucks, motorcycles, boats, trailers, motor houses and other types of vehicles.
(b) Employees. During the Restricted Period, Consultant
shall not, directly or indirectly, (i) solicit for employment and/or hire or
offer employment to any individual who is or was an employee of the Company and
who becomes an employee of the Company or its subsidiaries at any time during
the Restricted Period, or (ii) encourage any such individual to terminate his or
her relationship with the Company or its subsidiaries.
(c) Customers. During the Restricted Period, the
Consultant shall not solicit any person who is or was a customer or client of
the Company, or its subsidiaries and who becomes a customer or client of the
Company or its subsidiaries at any time during the Restricted Period, for the
purpose of (i) engaging in, or assisting any person or entity in engaging in,
the Business, or (ii) soliciting or encouraging any customer, client of the
Company, or its subsidiaries to terminate or otherwise alter his, hers or its
relationship or prospective relationship with the Company or its subsidiaries.
4.3 RIGHTS AND REMEDIES UPON BREACH. If Consultant breaches, or
threatens to commit a breach of, any of the provisions of Section 4.1 or 4.2
(the "Restrictive Covenants"), IAA shall have the right and remedy to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
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Restrictive Covenants would cause irreparable injury to IAA and that money
damages would not provide an adequate remedy to IAA. IAA shall also have any
other rights and remedies available to it under law or in equity.
4.4 SEVERABILITY OF COVENANTS. Consultant acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in scope and in all
other respects. If any court determines that any of the Restrictive Covenants,
or any part thereof, is invalid or unenforceable, the remainder of the
Nondisclosure Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions.
SECTION 5. MISCELLANEOUS.
(a) Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered personally,
sent by facsimile transmission (with a copy also sent by another means herein
provided for), sent by certified, registered or express mail, postage prepaid or
sent by reputable air courier. Any such notice shall be deemed given when so
delivered personally or sent by facsimile transmission (with issuance by the
transmitting machine of a confirmation of successful transmission) and delivery
by another permitted means or, if mailed, five days after the date of deposit in
the United States mail or, if sent by courier, two days after the date of
deposit with such courier, addressed as follows:
if to Company, to:
Insurance Auto Auctions, Inc.
000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Zavis
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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if to Consultant, to:
_____________________________________________
_____________________________________________
_____________________________________________
Telecopy: ___________________________________
with a copy to:
_____________________________________________
_____________________________________________
_____________________________________________
Attention: __________________________________
Telecopy: ___________________________________
Any party may change its address for notice hereunder by notice to the
other party hereto given in accordance herewith.
(b) Assignability. This Agreement shall not be assignable
by either party hereto without the prior written consent of the other party.
(c) Governing Law. The parties agree that this Agreement
shall be construed and governed in accordance with the internal laws of the
State of Illinois, without giving effect to principles of conflicts of laws.
(d) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, executors, administrators, successors and permitted assigns.
(e) Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
(f) Entire Agreement. This Agreement represents the
entire agreement and understanding of the parties hereto with respect to the
matters set forth herein. This Agreement supersedes all prior negotiations,
discussions, correspondence, communications, understandings and agreements
between parties, written or oral, relating to the subject matter of this
Agreement. This Agreement may be amended, superseded, cancelled, renewed, or
extended and the terms hereof may be waived, only by a written instrument signed
by the parties hereto or, in the case of a waiver, by the party waiving
compliance.
(g) Waivers. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof. Nor shall any waiver on the part of any party of any such right, power
or privilege hereunder, nor any single or partial exercise of any
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right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
(h) Headings. The headings in this Agreement are inserted
for convenience only and are not to be considered in the interpretation or
construction of the provisions hereof.
(i) Definitions of "Person". As used herein, the term
"Person" shall mean any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental or regulatory body or any political subdivision thereof.
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IN WITNESS WHEREOF, IAA and Consultant have signed this Agreement as of
the day and year written above.
INSURANCE AUTO AUCTIONS, INC.:
/s/ Xxxxxx X. X'Xxxxx
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By: Xxxxxx X. X'Xxxxx
Its: President and CEO
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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