EXHIBIT 10.4
AMENDED AND RESTATED
CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement ("Agreement") is made
as of the 31st day of January, 1995 by and between Transamerica Corporation, a
Delaware corporation ("Transamerica"), and Xxxxx X. Xxxxxx ("Xxxxxx").
Recitals
X. Xxxxxx is presently the Chairman of the Board of Directors of
Transamerica and retired as an executive officer and employee of Transamerica
effective December 1, 1992.
B. Transamerica recognizes the value of Xxxxxx'x services and has
determined that it is in its best interests that Xxxxxx be available to
provide such consulting and advisory services to Transamerica as may be
requested by Transamerica from time to time, and Xxxxxx is willing to make
such services available to Transamerica, on the terms and conditions
hereinafter set forth.
C. Transamerica and Xxxxxx previously entered into a Consulting
Agreement dated January 31, 1994 ("Prior Agreement").
D. Transamerica and Xxxxxx wish to amend and restate the Prior
Agreement effective May 1, 1995.
Now, Therefore, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties agree as follows:
1. Term. The term of this Agreement shall commence on May 1, 1995
and shall continue through April 30, 1996.
2. Services. During the Term, Xxxxxx agrees to render to
Transamerica such consulting and advisory services and perform such special
assignments in connection with the business of Transamerica as may be
requested from time to time by the Board of Directors or the Chief Executive
Officer of Transamerica (the "Services"). Transamerica and Xxxxxx agree that
the performance of the Services by Xxxxxx is intended to require approximately
15% of Xxxxxx'x normal business hours (assuming full-time employment) and
Xxxxxx agrees and undertakes to devote such amount of time to the performance
of the Services.
3. Compensation. In consideration of the performance of the
Services, Transamerica will pay to Xxxxxx consulting fees in the amount of
$75,000 per annum. Such fees shall be payable quarterly in advance on the
first business day of each of May, August, November, and February.
4. Service on Board of Directors. In addition to the performance
of the Services, Xxxxxx agrees to continue to serve as a member of the Board
of Directors of Transamerica and its committees, for which Xxxxxx will be
compensated in the same manner as any other non-employee director.
5. Expenses; Office; Automobile.
(a) Xxxxxx will be reimbursed for all out-of-pocket expenses
reasonably incurred by him in the performance of the Services, provided that
such expenses are properly documented and incurred in amounts and in a manner
consistent with Transamerica's expense reimbursement policies as they may from
time to time exist.
(b) During the Term, Transamerica shall maintain an office for
Xxxxxx at its headquarters and shall provide Xxxxxx with appropriate
secretarial and other assistance.
(c) During the Term, Xxxxxx will be entitled to the use of a
company automobile and parking at Transamerica's headquarters, on terms
consistent with the terms on which automobiles and parking are provided to
Transamerica officers.
6. Other Benefits. Nothing contained in this Agreement shall
affect the benefits available now or in the future to Xxxxxx as a retired
employee or as a director of Transamerica.
7. Conflict of Interest. Nothing contained in this Agreement
shall be deemed to preclude Xxxxxx from engaging in other professional
endeavors or employment not inconsistent with the terms of this Agreement.
Xxxxxx hereby represents that he is not, nor during the Term will he become,
bound by any agreements, commitments or obligations, nor involved with any
professional endeavors, which restrict or may restrict his ability to perform
the Services. Xxxxxx shall adhere to the conflict of interest policy
promulgated by Transamerica and shall direct to Transamerica any business
opportunities in the fields in which Transamerica or its direct or indirect
subsidiaries ("Affiliates") operate.
8. Independent Contractor. It is expressly understood and agreed
that, in rendering the Services, Xxxxxx is an independent contractor and is
not an employee or agent of Transamerica and shall have sole discretion to
determine the time, manner and other details of rendering the Services.
Transamerica shall not have the right to control the manner and detail of the
performance of the Services and, subject to such regulations as Transamerica
may from time to time promulgate, Xxxxxx shall exercise independent judgment
as to such performance. Xxxxxx shall be responsible for all federal, state
and local taxes of every kind in connection with payments hereunder, provided
that Transamerica may withhold such amounts if and as required by any
applicable taxing authority.
9. Termination. This Agreement shall terminate upon Xxxxxx'x
death, or "permanent disability." The term "permanent disability" shall mean
a disability by reason of any physical or mental incapacity which prevents
Xxxxxx from rendering the Services for a period of more than 120 days in any
consecutive 180-day period.
10. Non-Competition and Non-Solicitation. Xxxxxx covenants and
agrees that during the Term and for a period of two years following the
termination of this Agreement, he will not directly or indirectly without the
prior written consent of Transamerica:
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(a) Consult with, advise or otherwise participate, render services
to or engage in any business similar to, or which competes with, the business
now or then being conducted by Transamerica or any of its Affiliates, or have
any interest (other than an interest of 1% or less of the stock of a publicly
traded corporation) or involvement in any such business, whether as an agent,
employee, consultant, advisor, creditor, proprietor, partner, stockholder,
officer, director or otherwise; notwithstanding the foregoing, Transamerica
acknowledges that Xxxxxx currently serves, and will continue to serve, as a
director of The Xxxxxxx Xxxxxx Corporation and Transamerica hereby waives any
violation of Xxxxxx'x covenant set forth in this subparagraph (a) arising
from, and consents to, such service as a director.
(b) Solicit from any present or past customer, client or vendor of
Transamerica or any of its Affiliates any business similar to that now or
then being conducted by Transamerica or any of its Affiliates;
(c) Request or advise any present or future customer, client or
vendor of Transamerica or any of its Affiliates to withdraw, curtail or cancel
its business dealings with Transamerica or any of its Affiliates; or
(d) Solicit, suggest to or encourage any present or future
employee of Transamerica or any of its Affiliates to leave such employ for any
reason whatsoever.
Should any portion of this Section 10 be deemed unenforceable
because of its scope, duration or territory, and only in such event, then the
parties consent and agree to such limitation on scope, duration or territory
as may be finally adjudicated as enforceable in such jurisdiction by a court
of competent jurisdiction after exhaustion of all appeals, to give this
Section 10 its maximum permissible scope, duration and territory. It is
hereby agreed that each breach of this Section 10 is a distinct and material
breach of this Agreement and that solely a monetary remedy will be inadequate,
impractical and extremely difficult to prove, and that each such breach will
cause Transamerica irreparable harm. It is further agreed that, in addition
to any and all remedies available at law or equity (including monetary damages
and Transamerica's right to cease payments under this Agreement), Transamerica
shall be entitled to temporary and permanent injunctive relief to enforce the
provisions of this Section 10 without the necessity of proving actual damages.
Transamerica may pursue any of the remedies described in this Section 10
concurrently or consecutively in any order as to any such breach or violation,
and the pursuit of one of such remedies at any time will not be deemed an
election of remedies or waiver of the right to pursue any of the other of such
remedies.
11. Applicable Law. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the substantive laws of the State
of California.
12. Binding Agreement. This Agreement shall be binding upon the
parties hereto, their heirs, personal representatives, successors, transferees
and assigns; provided that Xxxxxx may not assign any of his rights, duties or
obligations hereunder.
13. Notices. All notices given or made pursuant hereto shall be
in writing and shall be deemed to have been given or made if in writing and
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delivered personally or sent by registered or certified mail (postage prepaid,
return receipt requested), Federal Express or equivalent courier service (by
next day service), or facsimile transmission to the parties at the following
addresses:
To Xxxxxx at his home address shown in the records of Transamerica.
To Transamerica at: Transamerica Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopier No. (000) 000-0000
or to such other address as shall be furnished by either party by like notice
to the other. Such notice or communication shall be deemed to have been given
or made (i) if personally delivered, on the date so delivered, (ii) if sent by
registered or certified mail, on the third business day after mailing, (iii)
if sent by Federal Express or equivalent courier service, on the next business
day following delivery to the courier service within its business hours
provided for next day delivery, or (iv) if sent by facsimile transmission, on
the date of confirmation.
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 instrument.
15. Waiver. No waiver of any of the provisions of this Agreement
shall constitute a continuing waiver of such provision or a waiver of any
other provision hereof. No waiver shall be binding unless executed in writing
by the party making the waiver.
16. Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all other understandings and agreements relating
thereto, whether written or oral, including the Prior Agreement. This
Agreement cannot be changed, modified or terminated except by a written
agreement duly executed by the parties.
17. Severability. If any provision of this Agreement or
application thereof to any person or under any circumstances is adjudicated to
be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect any other provisions or applications of this
Agreement that can be given effect without the invalid or unenforceable
provision or application and shall not invalidate or render unenforceable such
provision in any other jurisdiction or under any other circumstance.
18. Remedies Cumulative. No remedy conferred by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity.
19. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed
by reference to the title of any section.
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In Witness Whereof, the parties hereto have executed this Agreement
as of the day and year first written above.
Transamerica Corporation,
a Delaware corporation
_________________________________ By: ______________________________
Xxxxx X. Xxxxxx
Title: ___________________________
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AMENDMENT NO. 1
TO
AMENDED AND RESTATED
CONSULTING AGREEMENT
THIS AMENDMENT NO. 1 To Amended And Restated Consulting Agreement is
entered into as of the 1st day of March, 1996 by and between Transamerica
Corporation, a Delaware corporation ("Transamerica"), and Xxxxx X. Xxxxxx
("Xxxxxx").
RECITALS
X. Xxxxxx is currently the Chairman of the Executive Committee of the
Board of Directors of Transamerica and retired as an executive officer and
employee of Transamerica effective December 1, 1992.
B. Transamerica and Xxxxxx previously entered into an Amended And
Restated Consulting Agreement (the "Agreement") dated January 31, 1995 and
they now wish to amend the Agreement to extend its term for an additional
period of one year.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained, the parties agree as follows:
1. Section 1 of the Agreement is hereby deleted and the following
Section 1 is substituted therein:
"1. Term. The term of this Agreement shall commence on
May 1, 1995 and shall continue through April 30, 1997."
2. As modified hereinabove, the Agreement shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
To Amended And Restated Consulting Agreement as of the day and year first
written above.
TRANSAMERICA CORPORATION,
a Delaware corporation
______________________________ By: _________________________________
Xxxxx X. Xxxxxx Chairman of the Board, President
and Chief Executive Officer
