EXHIBIT 10.13
ADVISORY SERVICES AGREEMENT
THIS ADVISORY SERVICES AGREEMENT (this "AGREEMENT") is entered into as
of _______ __, ____, by and between [NEW ENTITY TO BE FORMED BY XXX XXXXXXX], a
Delaware limited liability company ("ADVISOR"), and First Acceptance Corporation
(f/k/a Liberte Investors Inc.), a Delaware corporation (the "COMPANY"). The
Company and Advisor are sometimes collectively referred to herein as the
"PARTIES" and individually as a "PARTY."
WHEREAS, Xxxxxx X. Xxxxxxx, the sole and managing member of Advisor
("XXXXXXX"), has been an employee, officer, director and stockholder of the
Company and, as such, possesses special knowledge, abilities and experience
regarding the business of the Company;
WHEREAS, the Company, USAH Merger Sub, Inc., a Delaware corporation
and direct wholly-owned subsidiary of the Company ("MERGER SUB"), USAuto
Holdings, Inc., a Delaware corporation ("USAUTO"), and the stockholders of
USAuto are parties to the Agreement and Plan of Merger, dated as of December __,
2003 (the "MERGER AGREEMENT"), pursuant to which USAuto will merge with and into
Merger Sub upon the terms and subject to the conditions set forth therein (the
"MERGER");
WHEREAS, upon the Merger becoming effective, Xxxxxxx' employment as an
employee and officer of the Company will terminate; and
WHEREAS, upon the Merger becoming effective, the Company desires to
obtain the services of Advisor to provide the financial advisory services
described herein as an independent contractor for the Company, and Advisor
desires to provide such services to the Company upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the Parties agree as follows:
1. FINANCIAL ADVISORY SERVICES. The Company hereby engages Advisor
as an independent contractor to render the Advisory Services (as defined below)
to the Company as hereinafter provided, and Advisor hereby accepts such
engagement, for a period commencing on the Closing Date (as defined in the
Merger Agreement) and, unless otherwise earlier terminated in accordance with
the provisions hereof, terminating on the fourth anniversary of the Closing
Date, unless extended by the mutual written consent of Advisor and the Company
(the "ADVISORY PERIOD"). During the Advisory Period, Advisor shall render such
reasonable financial advisory services (the "ADVISORY SERVICES") to the Company
in connection with financings, mergers and acquisitions and related matters
involving the Company as the Company's Chairman or Chief Executive Officer from
time to time reasonably requests; provided that, the total number of hours that
Advisor will be required to spend providing the Advisory Services to the Company
shall not exceed 100 hours in any twelve-month period occurring during the
Advisory Period. Unless
otherwise consented to by the Company, substantially all of the financial
advisory services to be rendered hereunder shall be rendered by Xxxxxxx.
2. COMPENSATION FOR ADVISORY SERVICES.
(a) In consideration of the Advisory Services to be provided by
Advisor as contemplated herein, during the Advisory Period, the Company shall
pay to Advisor an advisory fee of $250,000 per annum (the "ADVISORY FEE"). The
Advisory Fee shall be payable in advance in equal quarterly installments
beginning on April 1, 2004 and then on each July 1, October 1, January 1 and
April 1 thereafter during the term of this Agreement; provided that, the pro
rata portion of the Advisory Fee owed to Advisor for the period beginning on the
Closing Date and ending on March 31, 2004 shall be payable in advance on the
Closing Date; provided, further, that any quarterly installment paid or payable
hereunder shall be pro rated in the event this Agreement is terminated prior to
the expiration of the four (4)-year Advisory Period contemplated hereby. In the
event that the Advisory Period is terminated prior to the expiration of the four
(4)-year Advisory Period during a calendar quarter for which a quarterly
installment of the Advisory Fees has been paid to Advisor, Advisor shall refund
a pro rata portion of such quarterly payment based on the number of days
remaining in such quarter following the effective date of the termination of the
Advisory Services.
(b) The Company shall reimburse Advisor for all reasonable expenses
incurred by Advisor or any of its employees, officers, managers or members
(including Xxxxxxx) in the course of performing services under this Agreement,
subject to the Company's normal requirements with respect to reporting and
documentation of such expenses.
3. NO AGENCY CREATED. Advisor is providing services solely as a
consultant and not as an employee of the Company. Advisor shall be responsible
for the payment of all income, social security and other self-employment taxes
relating to its services and the services of its employees pursuant to this
Agreement. Nothing contained in this Agreement shall be construed to constitute
Advisor, its agents or employees, as the agent, employee or the legal
representative of the Company for any purpose. Nothing contained in this
Agreement shall be construed to authorize Advisor to, nor shall Advisor without
other valid authorization from the Company, hold itself as having, any right or
authority to assume or create an obligation or responsibility, express or
implied, on behalf of or in the name of the Company, or bind the Company in any
manner.
4. REPRESENTATION AND WARRANTY.
(a) Advisor represents and warrants to the Company that (i) Advisor
is duly organized, validly existing and in good standing under the laws of the
State of Delaware, (ii) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary company action on the part
of Advisor, (iii) upon the execution and delivery of this Agreement by the
parties hereto, this Agreement will constitute the legal, valid and binding
obligations of Advisor, enforceable in accordance with its terms, and (iv) the
execution and delivery by Advisor of this Agreement and its performance of its
obligations hereunder will not violate, contravene or conflict with any
employment agreement, consulting agreement,
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confidentiality agreement, non-competition agreement or other agreement or
contract to which it is a party or by which it may be bound.
(b) The Company represents and warrants to Advisor that (i) the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary company action on the part of the Company, and (ii) upon the
execution and delivery of this Agreement by the parties hereto, this Agreement
will constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with its terms.
5. CONFIDENTIAL INFORMATION. Advisor acknowledges that the
information, observations and data (including trade secrets) obtained by it
while performing the Advisory Services hereunder concerning the business or
affairs of the Company and/or its subsidiaries ("CONFIDENTIAL INFORMATION") are
the property of the Company and its subsidiaries. Therefore, Advisor agrees that
it shall not disclose to any person, other than in the course of the performance
of the Advisory Services, or use for its own purposes, any Confidential
Information, unless and to the extent that (i) the Confidential Information
becomes generally known to and available for use by the public other than as a
result of Advisor's acts or omissions or (ii) such disclosure or use is
authorized by the Company's Board of Directors. Advisor shall deliver to the
Company at the termination of the Advisory Period, or at any other time the
Company may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and copies thereof)
embodying or relating to the Confidential Information, Work Product (as defined
below) or the business of the Company or any of its subsidiaries which Advisor
may then possess or have under its control.
6. INVENTIONS, PATENTS AND OTHER INTELLECTUAL PROPERTY. Advisor
acknowledges that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or not including
any Confidential Information) and all registrations or applications related
thereto, and all other proprietary information and all similar or related
information (whether or not patentable) which relate to the Company's or any of
its subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Advisor (whether alone or jointly with others) while performing the
Advisory Services ("WORK PRODUCT"), belong to the Company or such subsidiary.
Advisor shall promptly disclose such Work Product to the Board of Directors of
the Company and, at the Company's expense, perform all actions reasonably
requested by the Company's Board of Directors (whether during or after the
Advisory Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments).
7. LIABILITY. Neither Advisor nor any of its employees, officers,
managers, members, affiliates, agents or representatives (including Xxxxxxx)
shall be liable to the Company or its subsidiaries or affiliates for any loss,
liability, damage or expense arising out of or in connection with the
performance of services contemplated by this Agreement, unless such loss,
liability, damage or expense shall be proven to result directly from the gross
negligence or intentional wrongdoing of Advisor or any of its employees,
officers, managers, members, affiliates, agents or representatives (including
Xxxxxxx).
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8. INDEMNIFICATION. The Company agrees to indemnify and hold
harmless Advisor and its employees, officers, managers, members, affiliates,
agents and representatives (including Xxxxxxx) against and from any and all
loss, liability, suits, claims, costs, damages and expenses (including
attorneys' fees) arising from or related to the performance of services
hereunder, except as a result of Advisor's gross negligence or intentional
wrongdoing or the gross negligence or intentional wrongdoing of any of its
employees, officers, managers, members, affiliates, agents and representatives
(including Xxxxxxx).
9. TAX RETURNS. The Company and Advisor shall file all tax returns
and reports required to be filed by them on the basis that Advisor is an
independent contractor, rather than an employee, as defined in Treasury
Regulation Section 31.3121(d)-1(c)(2).
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company and its affiliates, successors and assigns
and shall be binding upon and inure to the benefit of Advisor and its legal
representatives and assigns; provided that in no event shall Advisor's
obligations to perform future services for the Company be delegated or
transferred by Advisor, nor shall Advisor assign this Agreement without the
prior written consent of the Company.
11. MODIFICATION OR WAIVER. No amendment, modification or waiver of
this Agreement shall be binding or effective for any purpose unless it is made
in a writing signed by the Party against whom enforcement of such amendment,
modification or waiver is sought. No course of dealing between the Parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of the Company or
Advisor in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by the Company or
Advisor of any such right or remedy shall preclude other or further exercises
thereof. A waiver of right or remedy on any one occasion shall not be construed
as a bar to or waiver of any such right or remedy on any other occasion.
12. TERMINATION.
(a) This Agreement may be terminated by the Company (i) if Advisor
(including, but not limited to, Xxxxxxx) (A) without reasonable cause, refuses
to attend to the performance of the Advisory Services, (B) is unable properly to
perform the Advisory Services through illness or any other cause for a period or
periods exceeding three months in any calendar year or for any period of three
consecutive calendar months, or (C) do any act or fail to do any act which
results in an indictment for or conviction of a felony or similarly serious
offense; or (ii) upon the written agreement of Advisor.
(b) This Agreement may be terminated by Advisor (i) upon the written
agreement of the Company; or (ii) if the Company is in material breach of its
obligations hereunder.
13. GOVERNING LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by, and construed in
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accordance with, the laws of the State of Illinois, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
14. SEVERABILITY. Whenever possible each provision and term of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, then such provision or
term shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement.
15. NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
Party.
16. NOTICE. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or upon confirmation of receipt if delivered by telecopy
or facsimile (but only if a copy of such telecopy or facsimile is delivered to
the recipient by a recognized next-day courier service), (b) on the first
business day following the date of dispatch if delivered by a recognized
next-day courier service or (c) on the fifth business day following the date of
mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as have been previously designated in
writing to the party sending such notice by the party to receive such notice:
THE COMPANY:
First Acceptance Corporation
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxx 00000 Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
ADVISOR:
[_________]
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
17. CAPTIONS. The captions used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement and
shall not be deemed to limit, characterize or in any way affect any provision of
this Agreement, and all provisions of this Agreement shall be enforced and
construed as if no caption had been used in this Agreement.
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18. COUNTERPARTS. This Agreement may be executed in counterparts,
any one of which need not contain the signatures of more than one Party, but all
such counterparts taken together shall constitute one and the same instrument.
19. TAX DISCLOSURES. Notwithstanding anything herein to the
contrary, the Company and Advisor and each other party to the transaction
contemplated hereby (and each affiliate and person acting on behalf of any such
party) agree that each party (and each employee, representative and other agent
of such party) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transaction and all materials
of any kind (including opinions or other tax analyses) that are provided to such
party or such person relating to such tax treatment and tax structure, except to
the extent necessary to comply with any applicable federal or state securities
laws. This authorization is not intended to permit disclosure of any other
information, including (without limitation) (i) any portion of any materials to
the extent not related to the tax treatment or tax structure of the transaction,
(ii) the identities of participants or potential participants in the
transaction, (iii) the existence or status of any negotiations, (iv) any pricing
or financial information (except to the extent such pricing or financial
information is related to the tax treatment or tax structure of the transaction)
or (v) any other term or detail not relevant to the tax treatment or the tax
structure of the transaction.
* * * *
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IN WITNESS WHEREOF, the undersigned have executed this Advisory
Services Agreement as of the date first above written.
FIRST ACCEPTANCE CORPORATION
By:
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Its:
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[NAME OF ADVISOR]
By:
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Its:
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