CONSULTING AGREEMENT
EXHIBIT 10.76
This
Consulting Agreement, dated as of February 24, 2009 (the “Consulting Agreement”) for
consulting services to be provided by Xxxxxxx X. Xxxxxxx (the “Consultant”) to Tower Group, Inc.,
its parent, subsidiary and affiliated corporations, and their respective successors and assigns
(collectively, “Tower”).
1. The term of this Consulting Agreement will be for a period of six (6) months beginning on
March 2, 2009 and ending on August 28, 2009 (the “Term”). Notwithstanding anything to the contrary
in this Consulting Agreement, this Consulting Agreement will be signed contemporaneously with the
Separation Agreement between Consultant and Tower dated the date hereof (the “Separation
Agreement”), and this Consulting Agreement will not become effective unless and until Consultant
has signed and has not revoked (as set forth in paragraph 16 of the Separation Agreement) the
Separation Agreement.
2. During the Term, Consultant will, as an independent contractor, provide such consulting
services and make himself reasonably available for such projects and meetings in connection
therewith, during normal business hours, as Tower shall from time to time request, subject to
Consultant’s other employment and consultancies and other business pursuits and activities. Tower
and Consultant agree and acknowledge that the level of services reasonably anticipated to be
performed by Consultant is 20 percent or less of the average level of services performed by
Consultant during the 24-month period immediately preceding February 27, 2009.
3. As consideration for the provision of the consulting services, Tower will pay to Consultant
the aggregate sum of $85,000.00, payable in two equal installments on or before March 2, 2009 (or,
if later, on the date this Consulting Agreement becomes effective as provided in paragraph 1) and
August 28, 2009.
4. Nothing in this Consulting Agreement shall be construed as creating any partnership, joint
venture or agency between Tower and Consultant. The parties expressly agree and acknowledge that
Consultant shall act solely as an independent contractor hereunder and, as such, is not authorized
to represent or bind Tower to third parties. Consultant agrees that he will not, without the prior
written consent of Tower in each instance, (1) send any written or electronic correspondence on
behalf of Tower, or any affiliate of Tower, or any employee of Tower, or use any trade name,
trademark, trade device, service xxxx, symbol or any abbreviation, contraction or simulation
thereof owned by Tower or its affiliates, or (2) represent, directly or indirectly, that Consultant
has any authority to act for or on behalf of Tower. Tower shall issue a form 1099 with respect to
the payment made pursuant to paragraph 3 of this Consulting Agreement. Neither federal, state, nor
local taxes of any kind shall be withheld or paid by Tower on behalf of Consultant in connection
with the payment made by Tower under paragraph 3 hereof. Consultant shall be responsible for
determining the amounts of and making all such payments. Consultant shall indemnify, defend and
hold Tower, its officers, directors, agents, employees, contractors and shareholders harmless from and against any and all claims,
liabilities, losses, damages, costs and expenses (including, without limitation, attorneys’ fees
and expenses) arising out of or relating to the foregoing responsibilities of Consultant.
5. Tower shall indemnify, defend and hold Consultant and his successors, assigns, heirs,
executors, administrators and legal representatives harmless from and against any and all claims,
liabilities, losses, damages, costs and expenses (including, without limitation, attorneys’ fees
and expenses) arising out of or relating to (a) the foregoing responsibilities of Consultant,
except to the extent Consultant has acted with gross negligence or willful misconduct, and (b) any
breach by Tower of its obligations under paragraph 3.
6. Consultant is not an employee of Tower and, except as expressly provided in the Separation
Agreement, is not entitled to participate in any of Tower’s employee benefit plans including, but
not limited to, any retirement, pension, profit sharing, group insurance, health insurance or
similar plans that have been or may be instituted by Tower for the benefit of its employees. Tower
will reimburse Consultant for all reasonable expenses incurred by Consultant and approved in
advance by Tower, upon the receipt by Tower of appropriate supporting documentation acceptable to
Tower, in connection with Consultant’s performance of consulting services hereunder. For purposes
of satisfying Section 409A of the Internal Revenue Code of 1986, as amended, and any related
regulations or other effective guidance promulgated thereunder (“Section 409A”), (i) all
reimbursement payments, if any, shall in all events be made no later than the end of the calendar
year following the calendar year in which the applicable expense is incurred, (ii) the amount of
expenses eligible for reimbursement during any calendar year may not affect the amount of expenses
eligible for reimbursement in any other calendar year, and (iii) the right to reimbursement under
this paragraph 6 is not subject to liquidation or exchange for another benefit.
7. All proposals, research, records, reports, recommendations, manuals, findings, evaluations,
forms, reviews, information, data and written materials originated or prepared by Consultant for
and in the performance of the consulting services hereunder shall become the exclusive property of
Tower, and shall be considered to be works for hire belonging to Tower, and Consultant shall
relinquish and hereby assigns any and all right, title, and interest in and to such material to
Tower. Consultant agrees to execute any and all documents prepared by Tower and to do any and all
other lawful acts as may be required by Tower to establish, document and protect such rights of
Tower.
8. Consultant agrees not to disclose (except for the purpose of performing his
responsibilities under this Consulting Agreement), nor use for Consultant’s benefit or the benefit
of any other person or entity, any information received from Tower which is confidential or
proprietary and (i) has not been disclosed publicly by Tower, (ii) is not otherwise a matter of
public knowledge or (iii) is a matter of public knowledge but which Consultant knows or has reason
to know became a matter of public knowledge through an unauthorized disclosure. Proprietary or
confidential information shall include but not be limited to information the unauthorized
disclosure or use of which would reduce the value of such information to Tower. Such information
includes, without limitation, Tower’s client lists, its trade secrets, any confidential information
about (or provided by) any client or prospective or former client of Tower, information concerning Tower’s business or financial affairs, including its books and
records, commitments, procedures, plans and prospects, products developed by Tower, securities
positions, or current or prospective transactions or business of Tower. Consultant hereby confirms
that on or, immediately upon Tower’s request, at any time prior to the conclusion of the Term,
Consultant will deliver to Tower and retain no copies of any written materials, records and
documents (including those that are electronically stored) made by Consultant or coming into
Consultant’s possession during the Term which contain or refer to any such proprietary or
confidential information. Consultant further confirms that on or, immediately upon Tower’s
request, at any time prior to the conclusion of the Term, Consultant will deliver to Tower any and
all property and equipment of Tower, which is in Consultant’s possession, but excluding
Consultant’s laptop computer.
9. Except for matters covered under paragraphs 7 or 8 hereof, in the event of any dispute or
difference between Tower and Consultant with respect to the subject matter of this Consulting
Agreement and the enforcement of rights hereunder, either Consultant or Tower may, by written
notice to the other, require such dispute or difference to be submitted to arbitration. The
arbitrator or arbitrators shall be selected by agreement of the parties or, if they cannot agree on
an arbitrator or arbitrators within 30 days after the date arbitration is required by either party,
then the arbitrator or arbitrators shall be selected by the American Arbitration Association upon
the application of Consultant or Tower. The determination reached in such arbitration shall be
final and binding on both parties without any right of appeal or further dispute. Execution of the
determination by such arbitrator or arbitrators may be sought in any court of competent
jurisdiction. The arbitrator or arbitrators shall not be bound by judicial formalities and may
abstain from following the strict rules of evidence and shall interpret this Consulting Agreement
as an honorable engagement and not merely as a legal obligation. Unless otherwise agreed by the
parties, any such arbitration shall take place in New York, New York.
10. If any of the provisions, terms or clauses of this Consulting Agreement are declared
illegal, unenforceable or ineffective in a legal forum, those provisions, terms and clauses shall
be deemed severable, such that all other provisions, terms and clauses of this Consulting Agreement
shall remain valid and binding upon both parties.
11. All notices and other communications hereunder shall be in writing and shall be mailed by
first class, registered or certified mail, return receipt requested, or postage prepaid or
personally delivered (including delivery by overnight couriers such as Federal Express), addressed
as follows:
If to Tower:
If to Consultant:
Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxx Xxxxxx, Xxx Xxxxxx 00000
000 Xxxxxxxx Xxxxx
Xxx Xxxxxx, Xxx Xxxxxx 00000
Each party hereto may designate in writing a new address to which any notice or other communication
may thereafter be so given, served or sent. Each notice or other communication that shall be
mailed in the manner described above shall be deemed sufficiently given, served, sent or received
for all purposes at such time as it is delivered to the addressee or at such time as delivery is
refused by the addressee upon presentation.
12. This Consulting Agreement may not be assigned, transferred or subcontracted, in whole or
in part, by Consultant.
13. This Consulting Agreement shall be governed by and construed in accordance with the laws
of the State of New York without regard to conflicts of law principles.
14. This Consulting Agreement and the Separation Agreement set forth the entire understanding
of the parties hereto relating to the retention of Consultant by Tower, and all other previous and
contemporaneous understandings and agreements relating to the retention of Consultant by Tower,
whether written, oral or electronic, are hereby superseded. None of the terms or provisions hereof
shall be modified or waived, and this Consulting Agreement may not be amended or terminated, except
by a written instrument signed by the party against which modification, waiver, amendment or
termination is to be enforced. No waiver of any one provision shall be construed as a waiver of
any other provision and the fact that an obligation is waived for a period of time shall not be
considered to be a continuous waiver.
15. This Consulting Agreement may be executed in counterparts and both counterparts so
executed shall constitute one agreement, binding on the parties hereto.
16. This Consulting Agreement is intended to meet the requirements of Section 409A, and shall
be interpreted and construed consistent with that intent.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first set forth above.
| /s/ Xxxxxxx X. Xxxxxxx | ||||
|
Xxxxxxx X. Xxxxxxx |
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| TOWER GROUP, INC. |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Authorized Officer | ||||
