EXHIBIT 10.14
AMENDED AND RESTATED MANAGEMENT AGREEMENT
This AMENDED AND RESTATED MANAGEMENT AGREEMENT (the
"Agreement"), dated as of March 20, 2003 by and among Hidden Creek Industries,
a New York general partnership ("HCI"), Xxxxxxx Holding, Inc., a Delaware
corporation ("Xxxxxxx") and its subsidiaries (together with Xxxxxxx, the
"Company"), amends and restates that Management Agreement by and between the
parties listed above, dated October 5, 2000.
BACKGROUND
WHEREAS, Xxxxxxx has acquired CVS Holdings, Inc, and
Commercial Vehicle Systems, Inc., both Delaware corporations, through the
Agreement and Plan of Merger;
WHEREAS, the Company hereby wishes to amend and restate the
Management Agreement, dated as of October 5, 2000;
WHEREAS, the Company received valuable services from HCI in
connection with the consummation of the transactions contemplated by the
Agreement and Plan of Merger;
WHEREAS, the Company desires to receive financial and
management consulting services from HCI thereby obtaining the benefit of the
experience of HCI in business and financial management generally and its
knowledge of the Company and its financial affairs in particular. HCI is willing
to provide financial and management consulting services to the Company.
Accordingly, the compensation arrangements set forth in this Agreement are
designed to compensate HCI for such services;
NOW, THEREFORE, in consideration of the foregoing promises and
the respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, HCI and the Company hereby agree as follows:
TERMS
1. Engagement. The Company hereby engages HCI as a financial
and management consultant, and HCI hereby agrees to provide financial and
management consulting services to the Company, all on the terms and subject to
the conditions set forth below.
2. Services of Hidden Creek Industries. HCI has provided
valuable services to the Company in connection with the consummation of the
transactions contemplated by the Agreement and Plan of Merger (as defined in
Section 3 below). HCI hereby agrees during the term of this engagement to
consult with the Company's board of directors (the "Board") and the management
of the Company in such manner and on such business and financial matters as may
be reasonably requested from time to time by the Board, including but not
limited to:
(a) corporate strategy;
(b) budgeting of future corporate investments;
(c) acquisition and divestiture strategies; and
(d) debt and equity financings.
Members of the HCI Group will be available to serve on the Boards and will
devote such time and attention to the Company's affairs as reasonably necessary
to accomplish the purposes of this Agreement. For purposes of this Agreement,
the "HCI Group" means X.X. Xxxxxxx, Xxxxx X. Xxxx, Xxxx X. Xxxxxx, Xxxxx X.
Xxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx and such other
persons as may be designated by HCI from time to time, which persons shall be
reasonably acceptable to the Company.
3. Compensation. (a) The Company agrees to pay to HCI as
compensation for services rendered to them with respect to the consummation of
the transactions contemplated by and related to that certain Agreement and Plan
of Merger dated as of March ___, 2003, by and between Xxxxxxx Holding, Inc., CVS
Merger Co., and CVS Holdings, Inc. (the "Agreement and Plan of Merger"), a fee
for management services equal to $250,000 payable upon the consummation of the
transactions contemplated by the Agreement and Plan of Merger (the "Closing"),
(b) the Company agrees to pay to HCI as compensation for services to be rendered
by HCI hereunder, a fee equal to $1,000,000 per year (the "Management Fee"),
payable monthly in advance, commencing on the first day of the first month
following the Closing; provided, however, that in the event the Closing does not
occur on the last day of the month, then HCI shall be entitled to receive a
Management Fee for the period beginning on the date on which the Closing
occurred until the first day of the month following the Closing in an amount
equal to the product of (x) $83,334 multiplied by (y) a ratio, the numerator of
which equals the number of days from and including the date on which the Closing
occurred until the first day of the month following the Closing, and the
denominator of which equals the number of days in the month in which the Closing
occurred; provided, further, that on January 1st of each calendar year during
the term of the Agreement, the Management Fee shall be increased by the
percentage increase in the Consumer Price Index for All Urban Consumers, U.S.
City Average, for all items for the preceding twelve calendar months, or if the
U.S. government ceases to publish such index, then by such index published by
the U.S. government as is in HCI's judgment most similar to such index, (c) the
Company agrees to pay to HCI as compensation for services to be rendered by HCI
in connection with various future transactions a reasonable and customary fee to
be determined mutually and in good faith by the Company and HCI, payable upon
consummation of any such future transaction. The Company shall promptly
reimburse HCI for such reasonable travel expenses and other direct out-of-pocket
expenses as may be incurred by HCI, its affiliates and their respective officers
and employees in connection with the Agreement and Plan of Merger and the
rendering of services hereunder. The parties hereto agree that the obligations
of Xxxxxxx and its subsidiaries hereunder are on a joint and several basis with
each other.
4. Term. This Agreement shall be in effect for an initial term
of five years commencing on the date hereof, and shall be automatically renewed
thereafter on a year to year basis unless one party gives 30 days' prior written
notice of its desire to terminate this Agreement; provided, however, that this
Agreement shall terminate on the first to occur of (a) the date of the sale of
all or substantially all of the Company's assets (other than a sale to an
affiliate of the Company), (b) the date of the sale of all of the issued and
outstanding capital stock of the Company (other than a sale to an affiliate of
the Company), or (c) HCI giving the
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Company 30 days' prior written notice of termination. No termination of this
Agreement, whether pursuant to this paragraph or otherwise, shall affect the
Company's obligations with respect to the fees, costs and expenses incurred by
HCI in rendering services hereunder and not reimbursed by the Company as of the
effective date of such termination.
5. Indemnification. The Company agrees to indemnify and hold
harmless HCI, its officers and employees against and from any and all loss,
liability, suits, claims, costs, damages and expenses (including attorneys'
fees) arising from their performance hereunder, except as a result of their
gross negligence or intentional wrongdoing.
6. Independent Contractors. HCI and the Company agree that HCI
shall perform services hereunder as independent contractors, retaining control
over and responsibility for its own operations and personnel. Neither HCI nor
their employees shall be considered employees or agents of the Company as a
result of this Agreement nor shall any of them have authority to contract in the
name of or bind the Company, except as expressly agreed to in writing by the
Company.
7. Confidential Information. HCI acknowledges that the
information, observations and data obtained by them and their agents and
employees during the course of their performance under this Agreement concerning
the business plans, financial data and customer relations of the Company (the
"Confidential Data") are the Company's valuable, special and unique assets.
Therefore, HCI agrees that it will not, nor will it permit any of its agents or
employees to, use or disclose to any unauthorized person or use any of the
Confidential Data obtained by it during the course of their performance under
this Agreement without the Company's prior written consent unless and to the
extent that (i) the Confidential Data becomes generally known to and available
for use by the public other than as a result of its acts or omissions to act or
(ii) such use or disclosure is required by any statute, rule, regulation or law
or any judicial or administrative body having jurisdiction.
8. Notices. Any notice, report or payment required or
permitted to be given or made under this Agreement by one party to the other
shall be deemed to have been duly given or made if personally delivered or, if
mailed, when mailed by registered or certified mail, postage prepaid, to the
other party at the following addresses (or at such other address as shall be
given in writing by one party to the other):
If to HCI:
Hidden Creek Industries
0000 XXX Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to the Company:
c/o Hidden Creek Industries
0000 XXX Xxxxxx
Xxxxxxxxxxx, XX 00000
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Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
9. Entire Agreement; Modification. This Agreement (a) contains
the complete and entire understanding and agreement of HCI and the Company with
respect to the subject matter hereof; (b) supersedes all prior and
contemporaneous understandings, conditions and agreements, oral or written,
express or implied, respecting the engagement of HCI in connection with the
subject matter hereof; and (c) may not be modified except by an instrument in
writing executed by HCI and the Company.
10. Waiver of Breach. The waiver by either party of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of that provision or any other
provision hereby.
11. Assignment. Neither HCI nor the Company may assign their
rights or obligations under this Agreement without the express written consent
of the other parties to this Agreement.
12. Governing Law. This Agreement shall be deemed to be a
contract made under, and is to be governed and construed in the accordance with
the internal laws (and not the law of conflicts) of the State of Delaware.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date written above.
HIDDEN CREEK INDUSTRIES
By: /s/ [ILLEGIBLE]
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Title:
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XXXXXXX HOLDING, INC.
By: /s/ [ILLEGIBLE]
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Title:
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CVS HOLDINGS LIMITED
By: /s/ [ILLEGIBLE]
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Title:
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CVS HOLDINGS, INC.
By: /s/ [ILLEGIBLE]
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Title:
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COMMERCIAL VEHICLE SYSTEMS, INC.
By: /s/ [ILLEGIBLE]
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Title:
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[Signature Page to Amended and Restated Management Agreement]
