Exhibit 10.4
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CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") is entered into as of
March 2, 2001 by and between Union Acceptance Corporation ("UAC") and Xxxxx X.
Von Deylen ("Consultant").
WHEREAS, Consultant has heretofore served as
Chairman of UAC and is continuing to serve as a director of
UAC; and
WHEREAS, UAC desires to continue to avail itself of
Consultant's expertise in the consumer automobile finance
industry, financial services, corporate financial matters
and, in particular, his familiarity with the management and
affairs of UAC; and
WHEREAS, Consultant is willing to continue to
provide consulting and advisory services to UAC on the terms
set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and other good and valuable consideration the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Consulting Services. UAC hereby engages Consultant to provide
consulting and advisory services to UAC, and Consultant hereby
accepts and agrees to such consulting arrangement. From time
to time, as reasonably requested by UAC's Board of Directors,
its Chairman or its President and Chief Executive Officer,
Consultant shall advise UAC regarding various matters relating
to the general management and affairs of UAC, including,
without limitation, financial management issues, capital and
strategic planning, executive compensation, and consumer
automobile receivable acquisition, funding and servicing
issues. Consultant agrees to provide such services on a
non-employee consulting basis during the term of this
Agreement; provided that he shall not be required to dedicate
more than 40 hours per month toward such services. In
addition, Consultant shall serve as a director of UAC and such
subsidiaries of UAC as UAC may request from time to time.
2. Compensation. Consultant shall be entitled to compensation for
his services hereunder in the amount of $10,000 per month
payable monthly in arrears, subject to deferral in accordance
with paragraph 6(B) below, commencing with March, 2001. Such
compensation shall be payable regardless of the amount of time
or nature of services which Consultant is required to devote
to UAC hereunder during any period. While this Agreement is in
effect, Consultant shall not be entitled to separate
compensation for his services as director of UAC or its
subsidiaries.
3. Term and Termination. This Agreement becomes effective March
2, 2001 and shall remain in effect until the first anniversary
thereof; provided that this Agreement shall be automatically
renewed for successive annual periods unless either party
provides written notice of termination to the other at least
60 days in advance of any anniversary, in which event this
Agreement shall terminate on such immediately succeeding
anniversary. In the event of the death or disability of
Consultant during the term of this Agreement, this Agreement
shall automatically terminate. Further, UAC may terminate this
Agreement by written notice to Consultant upon a material
breach by Consultant of his obligations hereunder.
4. Reimbursement of Expenses. UAC shall pay for or reimburse to
Consultant, any usual and customary out-of-pocket expenses
incurred by Consultant in connection with providing the
consultation services pursuant hereto.
5. Independent Contractor. Consultant shall be in all respects an
independent contractor of, and not an employee of, UAC or its
subsidiaries. Consultant shall have no authority to bind or
commit UAC or its subsidiaries with respect to any matter.
Consultant shall carry out his responsibilities under this
Agreement in his discretion as he determines best and shall
not be subject to control or direction by UAC.
6. Acknowledgments.
(A) UAC and Consultant acknowledge that his employment by
UAC terminated effective as of the date of this
Agreement. Accordingly, Consultant's entitlement to
compensation and benefits as an employee of UAC
terminated on such date. Consultant and UAC
acknowledge that Consultant's compensation for his
services as Chairman was determined after each fiscal
year of UAC based on 1.5% of UAC's net income
(including accrual for all executive bonuses) after
tax for such fiscal year (the "Annual Bonus Amount").
Consultant and UAC agree that such compensation shall
be paid by UAC for fiscal year 2001 but shall be
prorated based on Consultant's service as an
executive officer during fiscal year 2001.
Specifically, Consultant shall be paid two-thirds
(2/3) of the Annual Bonus Amount for fiscal year
2001. Such amount shall be payable on the date of
payment of regular bonuses to senior officers of UAC
for fiscal year 2001 (the "Regular Bonus Date").
(B) No cash payments due Consultant hereunder shall be
payable until the earlier of the occurrence of a
significant equity infusion transaction by UAC or the
Regular Bonus Date.
(C) In consideration of the agreements of UAC herein and
other good and valuable consideration received,
Consultant hereby fully releases and forever
discharges UAC, its subsidiaries and each of their
directors, shareholders, employees and agents, and
Xxxxxxx X. Xxxxxxxxxx, individually, from any claim
or cause of action of any nature whatsoever, whether
known or unknown, matured or unmatured, which
Consultant may have against UAC, its subsidiaries or
any of the foregoing persons relating to or arising
out of his employment with UAC or the termination
thereof.
7. Parties in Interest. This Agreement may not be transferred
assigned, pledge or hypothecated by any party hereto, other
than by operation of law; nor may Consultant delegate any
duties hereunder. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and
permitted assigns.
8. Severability. In case any provision of this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality
or enforceability of the remaining provisions hereof will not
in any way be affected or impaired thereby. The parties agree
to replace such invalid, illegal or unenforceable provision
with a valid one which comes as close as possible to the
intended purpose of the original provision.
9. Governing Law. This Agreement shall be construed and
interpreted pursuant to, and in accordance with, the laws of
the State of Indiana without regard to conflict of law
principles.
10. Entire Agreement; Superseding Prior Agreements. This Agreement
sets forth the entire understanding of the parties with regard
to the subject matter of this Agreement, and supersedes all
prior or contemporaneous oral and written statements or
communications relating thereto.
EXECUTED and EFFECTIVE as of the date first written above.
UNION ACCEPTANCE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: President
/s/ Xxxxx X. Von Deylen
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Xxxxx X. Von Deylen
