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Exhibit (10)(n)
CONSULTING AGREEMENT
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This CONSULTING AGREEMENT is made effective as of November 30,
1998 (the "Effective Date") by and between Xxxxxxx X. Xxxxx ("Consultant") and
National Auto Credit, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company wishes to retain Consultant as its
consultant to perform consulting services and to advise the Company with respect
to the Company's business under the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the premises and mutual
covenants in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. CONSULTING PERIOD. The "Consulting Period" shall mean the
period beginning on the Effective Date and ending on May 31, 1999 (the
"Consulting Period"). The Company shall have the option to renew the Agreement
for an additional six-month period upon notice to Consultant no later than 30
days prior to the expiration of the Consulting Period.
2. CONSULTING SERVICES.
(a) Services. During the Consulting Period,
Consultant shall furnish the Company with Consultant's unique expertise, advice,
consulting and personal services in connection with the Company's business at
such times and locations as the Company may reasonably request (the "Consulting
Services"). The Company, in its sole discretion, may require Consultant to serve
as acting president and/or interim Chief Executive Officer of the Company. The
Company, in its sole discretion, may also require Consultant to serve on the
Company's Board of Directors (the "Board"). Consultant shall devote such time
and attention as is necessary for him to perform the Consulting Services.
Consultant shall report directly to and take direction from the Chief Executive
Officer of the Company unless Consultant is appointed as the acting or interim
Chief Executive Officer of the Company, in which case Consultant shall report
directly to the Board. Consultant shall perform all Consulting Services on
behalf of the Company in a timely, diligent and professional manner in
accordance with the highest commercial industry standards.
(b) RELATIONSHIP. Consultant shall be an independent
contractor, and not an employee of the Company, within the meaning of all
federal, state and local laws and regulations governing employment insurance,
workers' compensation, industrial accidents, labor and taxes. Except as
specifically set forth in this Agreement, Consultant shall not acquire any
benefits, privileges or rights under any benefit plan operated by the Company or
its subsidiaries or affiliates for the
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benefit of their employees, including, without limitation, (i) any pension or
profit-sharing plans or (ii) any plans providing medical, dental, disability or
life insurance protection.
3. COMPENSATION. During the Consulting Period, the Company
shall pay to Consultant $33,333 per month for the Consulting Services (the
"Consulting Fee"). The Consulting Fee shall be payable twice per month in
accordance with the Company's normal payroll practices. In addition, during the
Consulting Period, the Company shall, within ten business days after written
request by Consultant, reimburse Consultant for his reasonable direct business
expenses incurred in performing the Consulting Services. During the Consulting
Period, the Company shall also reimburse Consultant for expenses associated with
the use of a vehicle comparable to those afforded to senior executive officers
and directors of the Company.
4. STOCK OPTIONS. As of the effective date of this Agreement,
Consultant will be granted an option to purchase 100,000 shares of the common
stock (the "Stock") of the Company (the "Option") pursuant to the Company's 1993
Equity Incentive Plan (the "Plan"). The per share exercise price for the Option
shall be the Fair Market Value (as defined in the Plan) of one share of Stock as
of the date of grant. The Option with respect to 50,000 shares of Stock shall be
fully vested and exercisable as of the date of grant. The Option with respect to
the remaining 50,000 shares of Stock shall vest and become exercisable on and
after the six month anniversary of the date hereof, provided that Consultant is
still engaged as a consultant or employed by the Company on such date. The
Option shall have such other terms and conditions as determined by the Board and
set forth in the Option Agreement issued in connection with the grant.
5. DIRECTOR AND OFFICER INSURANCE. During the Consulting
Period, the Company shall provide for the coverage of Consultant under the
Company's Director and Officer Insurance policy to the same degree as other
senior officers of the Company.
6. CONFIDENTIAL INFORMATION. During and after the termination
of the Consulting Period, Consultant shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliates, and their respective
businesses, which shall have been obtained by Consultant during the Consulting
Period and which shall not be or become public knowledge (other than by acts of
Consultant in violation of this Agreement). Consultant shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such secret or confidential
information, knowledge or data to anyone other than the Company and those
designated by it.
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7. NONSOLICITATION. During the Consulting Period and for a
period of one year following the termination of the Consulting Period,
Consultant shall not, other than in the normal course of the Company's business
and on behalf of the Company, directly or indirectly, (A) employ, contract with
or enter into a business relationship with, or seek to employ, contract with or
enter into a business relationship with any person who is, or was at any time
within the six-month preceding period, an employee of the Company or any of its
affiliates, or an agent representing any such employee, or otherwise cause or
induce any such employee or agent to terminate his, her or its employment,
contractual relationship or business relationship with the Company or such
subsidiary or affiliate for the employment of, or the creation of a contractual
or business relationship with, another person or company without, in either
case, the prior written consent of the Company. Moreover, During the Consulting
Period and for a period of one year following the termination of the Consulting
Period, Consultant shall not, other than in the normal course of the Company's
business and on behalf of the Company, directly or indirectly, solicit business
from or interfere, by any means whatsoever, with the business relationships
between the Company and its customers without the prior written consent of the
Company.
8. NONCOMPETITION. During the Consulting Period and for a
period of one year following the termination of the Consulting Period,
Consultant shall not directly or indirectly, own, manage, operate, join, control
or participate in or be connected with, as an officer, employee, partner,
stockholder, or otherwise, any business, individual, partnership, firm, or
corporation (collectively "Entity") which is at the time engaged principally or
significantly in a business which is, directly or indirectly, at the time in
competition with the business of the Company, or any affiliate of the Company
thereof in an area in which the Company or such affiliate then conducts
business. Nothing herein, however, shall prohibit Consultant from acquiring or
holding any issue of stock or securities of any Entity which has any securities
listed on a national securities exchange or quoted in the daily listing of
over-the-counter market securities, provided that at any one time he and members
of his immediate family do not own more than five percent (5%) of the voting
securities of any such Entity. If Section 6, 7 or 8 shall for any reason be held
to be excessively broad in any jurisdiction as to duration, scope, activity or
subject, it shall be construed, but only in such jurisdiction, by limiting and
reducing it, so as to be enforceable to the maximum extent compatible with the
applicable law of such jurisdiction.
9. TERMINATION OF THE CONSULTING SERVICES. The Company or
Consultant may at any time and for any reason terminate this Agreement and the
Consulting Services.
(a) This Agreement and the Consulting Services shall
automatically terminate upon the death of Consultant. Upon
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the death of Consultant during the Consulting Period, the Company shall pay to
Consultant's estate any earned but unpaid portion of the Consulting Fee through
the date of death and thereafter shall have no further obligation to Consultant
hereunder.
(b) In the event that Consultant suffers a physical
or mental disability that prevents him from fulfilling the Consulting Services
for a period of 60 consecutive days or for 90 nonconsecutive days during the
Consulting Period (a "Disability"), the Company may terminate this Agreement and
the Consulting Services. In the event that the Company terminates this Agreement
on account of a Disability, the Company shall pay to Consultant any earned but
unpaid portion of the Consulting Fee through the date of termination and
thereafter shall have no further obligation to Consultant hereunder.
(c) In the event that the Company terminates this
Agreement and the Consulting Services for Cause (as defined below) or if
Consultant voluntarily terminates this Agreement and the Consulting Services,
the Company shall pay to Consultant any earned but unpaid portion of the
Consulting Fee through the date of termination and thereafter shall have no
further obligation to Consultant hereunder. The Company shall have "Cause" to
terminate this Agreement and the Consulting Services for any of the following
reasons: (A) incompetence, fraud, personal dishonesty, defalcation or acts of
gross negligence or gross misconduct on the part of Executive in the course of
his employment; (B) a material breach of Executive's fiduciary duty of loyalty
to the Company; (C) an intentional breach of this Agreement by Executive that is
injurious to the Company; (D) Executive's conviction by a court of competent
jurisdiction of, or pleading "guilty" or "no contest" to, (x) a felony, or (y)
any other criminal charge (other than minor traffic violations) which could
reasonably be expected to have a material adverse impact on Company's reputation
and standing in the community or business; (E) consistent drunkenness by
Executive or his illegal use of narcotics which is, or could reasonably be
expected to become, materially injurious to the reputation or business of the
Company or which impairs, or could reasonably be expected to impair, the
performance of Executive's duties hereunder; or (F) willful failure by Executive
to follow the lawful directions of the Board or any officer of the Company
senior to Executive, representing disloyalty to the goals of the Company.
(d) In the event that the Company terminates this
Agreement and the Consulting Services without Cause, Company shall continue to
pay the Consulting Fee in the course of its normal payroll practices through the
remainder of the Consulting Period as though Consultant had continued to provide
the Consulting Services and thereafter shall have no further obligation to
Consultant hereunder.
(e) In the event that Consultant becomes an employee
of the Company, this Agreement shall automatically
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terminate and the Company shall pay to Consultant any earned but unpaid portion
of the Consulting Fee through the date of termination and thereafter shall have
no further obligation to Consultant hereunder. Following the expiration of the
Consulting Period, the Company shall have no further obligation to Consultant
hereunder. Following the termination of this Agreement, whether by the Company,
by Consultant or through expiration of the Consulting Period, the obligations of
Consultant pursuant to Sections 6, 7 and 8 shall remain intact.
10. SUCCESSORS.
(a) This Agreement is personal to Consultant and
shall not be assignable by Consultant without the prior written consent of the
Company.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors or assigns.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors or legal representatives.
(b) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(c) The failure of the Company at any time to enforce
performance by Consultant of any provisions of this Agreement shall in no way
affect the Company's rights thereafter to enforce the same, nor shall the waiver
by the Company of any breach of any provision hereof be held to be a waiver of
any other breach of the same or any other provision.
(d) This Agreement contains the entire understanding
of the Company and Consultant with respect to the subject matter hereof, and
supersedes and renders null and void any previous agreements between them with
respect thereto.
(e) Consultant shall be solely responsible for, and
the Company shall not withhold from any amounts payable under this Agreement,
any federal, state or local taxes payable by Consultant with respect to the
payments hereunder.
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(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have hereunto duly executed
this Agreement and the have caused these presents to be duly executed in their
name on their behalf.
Consultant
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
National Auto Credit, Inc.
By: /s/ Xxxxx X. XxXxxxxx
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Title: Chairman of the Board
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