Exhibit 10.1
CONSULTING AGREEMENT
This Consulting Agreement is made and entered into on this 31st day of
March, 2003 between The Finance Company, a Virginia corporation (the "Company"),
and Xxxxxx X. Xxxxx, Xx. (the "Executive").
WHEREAS, Executive is currently employed as Chairman of the Board of
the Company;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
March 31, 2003 (the "Merger Agreement"), by and among Consumer Portfolio
Services, a California corporation ("CPS"), TFC Enterprises, Inc., a Delaware
corporation and direct parent of the Company ("TFCE"), and CPS Mergersub, Inc.,
a Delaware corporation and a wholly-owned subsidiary of CPS ("Sub"), Sub will
merge with and into TFCE (the "Merger"), whereupon TFCE and the Company will
become subsidiaries of CPS; and
WHEREAS, the Company wishes to retain the consulting services of the
Executive after the Merger and the Executive is willing to perform consulting
services for the Company and TFCE after the Merger on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which consideration are mutually acknowledged by the parties, it
is hereby agreed as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed thereto in the Merger Agreement.
2. Existing Employment Agreement. Effective as of the Effective Time,
Executive's Employment Agreements made as of March 1, 2003 and October 22, 1992,
shall be terminated, and any compensation, benefits or other entitlements earned
or accrued by or to Executive under such Employment Agreements or any prior
Employment Agreement shall be terminated.
3. Engagement of Executive. The Company engages the Executive to
provide consulting services after the Effective Time to the Company and TFCE,
and Executive hereby agrees to provide such consulting services, in accordance
with the terms and conditions set forth in this Agreement.
4. Duties of Executive. The Executive's employment and all positions
as an officer and chairman of the board of directors of the Company and its
subsidiaries will terminate immediately following the Effective Time.
Thereafter, for a period of 36 months the Executive shall, upon the reasonable
request of the Company or TFCE, provide consulting services to the Company and
TFCE at such times and in such manner as Executive and the Company or TFCE shall
reasonably agree. The Executive's service requirements under this Agreement will
not require his physical presence routinely at any of the Company's offices, on
a daily basis or during specified hours; however, Executive shall devote so much
of his time as may be reasonably needed to perform his duties, at such place or
places as a particular duty may be performed effectively. Notwithstanding the
foregoing, the Executive shall not be required to devote more than 20 hours per
month of his time to completion of his duties. The Company
shall continue to provide Executive with the following equipment, which he may,
at his election from time to time, utilize to perform his duties hereunder: the
telecopier(s), personal computer and similar office equipment that he currently
uses in such office as Executive has established in his residence for the
primary purpose of performing his duties hereunder.
5. Compensation. For a period of 36 months after the Effective Time,
the Company shall pay the Executive three hundred thousand dollars ($300,000)
per annum, payable in equal semi-monthly installments (pro rated for partial
periods) in accordance with the Company's standard payroll practices beginning
with the first pay day after the Effective Time, as consideration for entering
into this Agreement and for providing the services described in Section 4 above.
In addition, for 18 months after the Effective Time the Company shall pay the
Executive's applicable premiums for continuation of medical coverage for himself
and his wife under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). After such time, the Company shall directly pay to any insurance
provider of Executive's choice up to $750 per month to cover the costs of two
"Medi-Gap" health insurance policies (one for Executive and one for his wife)
for the remainder of the term of this Agreement.
6. Expenses. The Company or TFCE shall pay or reimburse the Executive
for all reasonable out-of-pocket expenses incurred by him in connection with the
performance of services under this Agreement. Executive shall provide
documentation to the Company for all such expenses.
7. Automobiles. The Company shall transfer title to the 1999 Cadillac
and the 1999 Chrysler currently being used by Executive to Executive within 15
days after the Effective Time and pay any expenses associated with such
transfer.
8. Independent Contractor. The parties to this Agreement intend that
the Executive will perform under this Agreement as an independent contractor and
not as an employee of TFCE or the Company. Consequently, during the term of this
Agreement:
(a) The Executive shall be solely responsible for the payment of
all taxes in connection with the Executive's remuneration and benefits
hereunder, and neither TFCE nor the Company shall withhold taxes from his
remuneration, unless required by law; and
(b) The Executive shall not accrue or receive, in connection with
his services hereunder, any benefits under any employee benefit plan maintained
by TFCE or the Company; provided that nothing in this Agreement shall affect any
rights to benefits Executive (and Executive's spouse and dependents) might have
under any employee benefit plans of the Company by virtue of his prior service
as an employee of the Company or its subsidiaries or any other contractual
arrangement with the Company.
9. Entire Understanding. This Agreement constitutes the entire
understanding between the parties relating to Executive providing consulting
services after the Merger. In the event the Merger Agreement is terminated prior
to the Effective Time, this Agreement shall automatically be terminated and
shall be of no further force or effect. Any amendment of this Agreement shall be
effective only to the extent that it is in writing, executed by both the Company
and the Executive.
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10. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Executive's executors, administrators, legal representatives,
heirs and legatees and the Company's successors and permitted assigns. Neither
the Company nor Executive may assign this Agreement without the written consent
of the other.
11. Waiver. The waiver by either party hereto of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of a breach of any other provision or a waiver of any subsequent
breach of the same provision.
12. Governing Law. This Agreement shall be governed by, and
interpreted, construed and enforced in accordance with, the laws of the State of
Virginia without regard to choice of laws principles.
13. Headings. The headings of the sections of this Agreement are for
reference purposes only and do not define or limit, and shall not be used to
interpret or construe, the contents of this Agreement.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. Facsimile copies of any
signature page hereto shall be deemed originals.
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IN WITNESS WHEREOF, the parties have caused this Consulting Agreement
to be executed effective as of the date and year first above written.
THE FINANCE COMPANY XXXXXX X. XXXXX, XX.
/s/ Xxxxxx X. Tray
By: Xxxxxx X. Tray /s/ Xxxxxx X. Xxxxx Xx.
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Its: President EXECUTIVE
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/s/ Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx, Xx.
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PRINT NAME
ADDRESS:
3309 Xxxxxxx XxXxxxxx
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Xxxxxxxx, XX 00000
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