1
EXHIBIT 10.112
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into this 6th
day of August 1997, by and between TCO Insurance Services, a California
corporation ("TCO"), and Xxxxxx X. Xxxxx ("Executive").
WHEREAS, TCO and the Executive entered into an Executive Employment
Agreement effective September 1, 1994 ("Employment Agreement");
WHEREAS, the Employment Agreement had an initial term ending August 31,
1996, with two consecutive two-year extensions exercisable, subject to the
terms and conditions of the Employment Agreement, by either TCO or the
Executive;
WHEREAS, since January 1, 1995, the Executive has been employed by Exstar
Financial Corporation, a Delaware corporation under common control with TCO,
and its subsidiary Alpine Insurance Company ("Exstar"), and not by TCO;
WHEREAS, TCO and the Executive desire that each party's obligations with
respect to the other pursuant to the Employment Agreement (except as otherwise
provided in this Agreement) be terminated.
WHEREAS, notwithstanding such termination the Executive has substantial
experience and expertise in TCO's business, and TCO desires to provide for
potential assistance by the Executive in the future; and
WHEREAS, TCO and the Executive desire that the Executive be available to
provide consulting services to TCO in accordance with the terms and conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions contained herein, the parties agree as follows:
1. Consulting Services. Effective as of May 1, 1997, and continuing until
termination of this Agreement ("Consulting Period"), TCO shall retain the
Executive, as an independent contractor, to be available to provide consulting
services to TCO, its parent TCO Holdings, Inc., and their subsidiaries
(collectively "TCO Companies"), and the Executive shall provide consulting
services, as from time to time are reasonably requested by TCO. The consulting
services potentially to be provided by the Executive may include those set
forth below and similar services.
a. If any TCO Company shall become involved in arbitration,
litigation or similar proceedings, the Executive shall participate in
document production, depositions, testimony and other aspects of the
proceedings, if and as from time to time reasonably requested by TCO.
2
b. The Executive shall assist the TCO Companies in strategic
financial and legal planning, if and as from time to time reasonably
requested by TCO.
c. The Executive shall provide additional similar advice and
consulting relating to the TCO Companies' businesses, if and as from time
to time reasonably requested by TCO.
2. Conditions. The Executive shall perform any consulting services
requested by TCO in accordance with this Agreement in a professional manner.
The Executive, however, shall not be obligated hereunder to provide more than
10 hours of consulting services per calendar month, nor more than 100 hours of
consulting services per calendar year, in each case including travel time
(other than routine travel to and from TCO's offices in Solvang); the
Executive's consulting services hereunder shall be required only during normal
business hours on normal business days; and Solvang, California, shall be the
principal place of performance of the Executive's consulting services
hereunder.
3. Payments During Consulting Period. The Executive shall be due during
the Consulting Period for being available to provide and for providing
consulting services in accordance with this Agreement annual amounts of
$12,681.51, in lump sums as of each April 30, beginning with 1998 and
continuing through 2007. These amounts shall not be payable to the Executive in
cash, but instead shall be paid through offset against two amounts due from the
Executive to TCO with an aggregate balance, including interest accrued, of
$89,069.61 as of April 30, 1997 ("Executive's Debt"). The parties acknowledge
that the 10 annual payments of $12,681.51 are calculated as the amounts needed
to amortize $89,069.61 plus interest at 7% per annum with annual payments in
arrears. Performance by the Executive of his obligations in accordance with
this Agreement shall constitute satisfaction in full of all obligations of the
Executive with respect to the Executive's Debt. For federal income tax
purposes, TCO and the Executive shall treat each of such annual amounts of
$12,681.51, in the year in which it becomes due to the Executive, as earnings
from self-employment and not as employee compensation. TCO, promptly following
execution of this Agreement, shall release all security it holds with respect
to the Executive's Debt.
4. Expenses. Reasonable expenses for food, lodging and travel outside the
Solvang, California, area, and other reasonable expenses consistent with those
historically reimbursed by TCO, incurred by the Executive, in the Executive's
performance pursuant to this Agreement, shall be reimbursed to the Executive by
TCO promptly upon the Executive's submission of reasonable documentation with
respect to such expenses. The Executive shall not incur any expenses in
connection with food, lodging or travel outside the Solvang, California, area
without TCO's prior approval of the trip.
5. Term. Except as hereinafter provided, the term of this Agreement shall
commence as of May 1, 1997, and continue through April 30, 2007. TCO shall be
entitled to terminate this Agreement upon the Executive's death, the
Executive's permanent
2
3
disability as certified by a licensed physician or the Executive's breach of
this Agreement and failure to cure such breach within a reasonable time after
TCO has provided the Executive written notice stating in detail the nature of
such breach, in which case the Executive shall remain liable for the balance
of any of the Executive's Debt remaining unpaid as of such date (prorated with
respect to any partial 12 months since the May 1 most recently preceding the
date of such termination), with such balance being payable in annual
installments of $12,681.51 each April 30 during the remainder of the Consulting
Period, and with any proration being offset against the first of such
installments.
6. Termination of Party's Obligations Under Employment Agreement. The
obligations of each party with respect to the other pursuant to the Employment
Agreement are hereby terminated, except as hereinafter provided.
Notwithstanding the foregoing, TCO's obligation to grant the Executive options
to purchase 126,350 shares of common stock of Exstar, all of which were to have
been granted and vested by July 1, 1997, in accordance with Sections 7 and 10
of the Employment Agreement, shall continue. This termination shall in no way
affect the obligations and rights of Exstar and the Executive with respect to
each other.
7. Miscellaneous. This Agreement shall be subject to the miscellaneous
provisions set forth below.
a. Each party to this Agreement shall perform all further acts and
execute and deliver all documents necessary or appropriate to carry out
the provisions of this Agreement.
b. This Agreement shall supersede all prior agreements among the
parties with respect to the subject matter hereof. The provisions of this
Agreement may be waived, altered, amended or repealed, in whole or in
part, only on the written consent of both parties to this Agreement. No
waiver of any breach of any provision hereunder shall extend to any prior
or subsequent breach or affect in any way any rights arising out of any
prior or subsequent breach.
c. This Agreement shall not be assignable by either party without
the other party's consent. This Agreement shall be binding on, and shall
inure to the benefit of, the parties to it and their respective
successors, assigns, heirs and representatives.
d. Provided it does not deprive either party of any material rights
under this Agreement, each provision of this Agreement shall be separate
and divisible, and if any provision shall be held invalid or
unenforceable, the remaining provisions shall remain in full force and
effect.
3
4
e. All notices or other communications required or permitted under
this Agreement shall be in writing and shall be given by personal
delivery or sent by certified mail, postage prepaid, addressed as follows:
If to TCO: If to the Executive:
---------- ---------------------
TCO Insurance Services Xxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx 000 Xxxx Xxxxx
Xxxxxxx XX 00000 Xxxxxxx XX 00000
Any party may change its address by giving the other party written notice
of the new address.
f. This Agreement shall be construed in accordance with, and
governed by, the laws of California. Santa Xxxxxxx County shall be the
venue for any litigation concerning this Agreement.
g. In the event of any litigation between the parties concerning
breach or alleged breach of this Agreement, its enforcement or
interpretation, the party prevailing shall be entitled to reimbursement
of reasonable attorney's fees and court costs from the other party.
h. Nothing in this Agreement shall confer any rights or remedies on
any third parties, other than the parties' successors, assigns, heirs and
representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
TCO Insurance Services Executive
By: /s/ Xxxxx X. X'Xxxxxxxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Xxxxx X. X'Xxxxxxxxxxx Xxxxxx X. Xxxxx
Chairman of the Board
Chief Executive Officer
Date: 8-6-97 Date: 8-6-97
---------------------------- -------------------------
4
