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EXHIBIT 10.98
CONSULTING AGREEMENT
ALPINE INSURANCE COMPANY ("COMPANY") and XXXXX X. XXXX ("XXXX") hereby
enter into an agreement for consulting services to be provided by Rice to the
Company as follows:
1. SERVICES TO BE PROVIDED: Rice agrees to provide financial consulting
services to the Company in connection with the Exstar vs. Coopers & Xxxxxxx
litigation on an independent contractor basis. The parties agree that any
consulting services performed by Rice under this Agreement need not be, and are
not expected to be, performed on Company premises or in the presence and/or
under the supervision, direction and control of any Company employee. Rice
understands and agrees that a substantial portion of his services will be
performed in Los Angeles, California. At other times, he may work out of his
personal office; however, the Company agrees to arrange for access to all
documents, records, etc. as necessary in connection with the performance of the
financial consulting services, as well as reasonable and necessary support
services. Further, it is the mutual understanding, expectation, intent and
agreement of the parties that Rice will determine the method, details, and means
of performing the consulting services under this Agreement, subject to the
requirement that he reasonably cooperate with the Company and agents for the
Company and exercise his best good faith efforts in performing the financial
consulting services.
2. TERM OF AGREEMENT: The term of this Agreement will be four consecutive
30-day periods, commencing on the date the Agreement is signed by the parties.
3. COMPENSATION: The Company agrees to pay to Rice $250 per hour for
financial consulting services provided to the Company, which will include, among
other things, deposition and trial preparation time. In addition, Rice will be
paid $250 per hour for travel time required in the performance of services in
connection with this Agreement, including travel time to and from deposition
and/or trial appearances.
4. GUARANTEED MINIMUM HOURS: The Company agrees to pay Rice for a minimum
of 40 hours per 30-day period, averaged over the term of the Agreement, and Rice
agrees to be available to the Company a maximum of 50 hours per 30-day period
during the term of the Agreement. Time spent travelling shall not be included in
the 40 hour minimum and 50 hour maximum periods, but time spent preparing for
depositions and trial shall be included in the 40 hour minimum and 50 hour
maximum periods. Additional hours over the 50 hour maximum per 30-day period may
be requested by the Company on an as-needed basis; performed by Rice at his
option; paid at $250 per hour; and not included in the 40 hour averaged minimum
per 30-day period. The Company will provide Rice with notice of its
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anticipated needs a week in advance so that he can make necessary travel and
scheduling arrangements. It is understood and agreed that Rice will not be
available the dates of October 22, 1996 through November 8, 1996, inclusive.
5. ADVANCE: Pending approval of the Agreement by the Illinois
Department of Insurance and prior to the commencement of services to be
provided by Rice under the Agreement, the Company shall advance a
non-refundable payment of $10,000 to Rice which will be applied to the first 40
hours of consulting and travel time required in connection with the services to
be provided by Rice under this Agreement. If Xx. Xxxx is required to travel to
the Los Angeles area for deposition preparation, the Company assures him that
he will have at least two full days of work when he arrives.
If the $10,000 advance is depleted prior to approval of the
Agreement by the Illinois Department of Insurance, Rice will not be obligated
to perform any additional services under this Agreement in the absence of an
additional non-refundable advance payment for services in a sum of at least
$5,000.
6. BILLING: Rice will provide the Company with confidential monthly
billing statements itemizing the hours worked, including travel time, and costs
incurred. Costs will be itemized, with attached receipts. Payment of all
monthly bills will be due within 21 days of the date the Company receives the
statement.
7. COST: The Company will reimburse Rice, without prior approval
required by the Company except as set forth below, for all reasonable and
necessary costs incurred in performing the services required under the
Agreement. Costs shall include, but not be limited to, the following:
Telephone charges--actual cost;
Copying charges--actual cost;
FAX transmittals--actual cost;
Postage, including Federal Express charges--actual cost;
Travel expenses, including airfare and ground
transportation--actual cost;
Food in connection with reasonable and necessary
travel--actual cost;
Auto mileage--$.30 per mile.
Any expenditure of $1,000 or more shall require pre-approval by the
Company.
All travel and lodging arrangements and reservations shall be made
through the Company, including travel and lodging for deposition and/or trial
appearances, and will be billed directly to the Company.
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8. GOOD FAITH CONSULTING SERVICES: Rice agrees to cooperate in
scheduling his appearance for deposition and/or trial in accordance with the
law, with or without a subpoena. He further agrees to cooperate with the
Company and its agents in good faith in regard to his consulting services.
9. APPROVAL OF CONTRACT BY THE ILLINOIS DEPARTMENT OF INSURANCE:
The Company agrees to exercise its best good faith efforts to obtain approval
of the Agreement signed by the parties, by the Illinois Department of Insurance
as soon as possible. Further, the Company will provide proof of submission of
the signed Agreement for approval to the Illinois Department of Insurance
promptly, but not later than October 15, 1996.
10. TERMINATION OF AGREEMENT: This Agreement shall terminate
automatically on the occurrence of any of the following events:
A. Bankruptcy or insolvency of either party;
B. Sale or dissolution of business by either party;
C. Death or incapacity of Rice rendering him unable to
perform the services under this Agreement;
D. The expiration of the term of the Agreement.
11. ASSIGNMENT OF AGREMENT: Neither this Agreement nor any of the
duties or obligations under this Agreement may be assigned by either party
without the prior written consent of the other, and such consent will not be
unreasonably withheld.
12. RELATIONSHIP OF PARTIES. The parties intend that Rice, in
performing services herein specified, shall act as an independent contractor and
shall control the manner in which his services are performed. Rice is not to
be considered as an agent of the Company. The Company shall not supply
equipment or working space for Rice. So far as applicable to the performance
of work required by this Agreement, Rice shall be responsible, at his sole
cost and expense, for any and all liability for federal, state and local taxes,
social security and/or unemployment compensation. Rice will not be entitled to
any employment benefits from the Company under the terms of and for the
duration of this Agreement.
13. COUNTERPARTS: This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all which together shall
constitute one and the same instrument.
14. ENTIRE AGREEMENT: This Agreement constitutes the full
understanding and the sole and entire agreement between the parties regarding
the terms and conditions of the consulting arrangement being entered into
between the parties and supersedes and replaces
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regarding the terms and conditions of the consulting arrangement being entered
into between the parties and supersedes and replaces any and all earlier
discussions, promises, statements, and agreements, whether oral or written,
whether express or implied, regarding those terms and conditions. The parties
to this Agreement acknowledge that no representation, inducements, promises, or
agreements, orally or otherwise, have been made between the parties hereto
relating to the subject matter of this Agreement which are not expressed
herein. In addition, no modification or amendment of, or addition, deletion or
change to this Agreement shall be valid, binding or enforceable for any purpose
unless made in writing and signed by both parties.
15. ARBITRATION: Any dispute relating to or arising out of this
Agreement or its validity, or any act/omission which allegedly has or would
violate any provision of this Agreement shall be submitted to binding
arbitration in accordance with the rules of the American Arbitration
Association ("AAA"), which shall be the exclusive remedy for such claim or
dispute. All costs of arbitration and attorneys' fees shall be awarded to the
prevailing party against the non-prevailing party. The arbitration award will
be binding and conclusive on the parties and may be enforced in a court of
competent jurisdiction.
16. LAW GOVERNING: This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
The signatures below reflect the intent of the Company and Rice to be
bound by all the terms of this Agreement.
DATED: 10/10/96 ALPINE INSURANCE COMPANY
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By_______________________________________
DATED: _________ _______________________________________
XXXXX X. XXXX
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