EXHIBIT 10.12
CONSULTING AGREEMENT
This Consulting Agreement between Coach USA, Inc., a Delaware
corporation ("Company") and Exel Holdings, Ltd. ("Consultant") is hereby entered
into this 21st day of March, 1996 to be effective as of the consummation of the
initial public offering of the Company's common stock.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each, it is
hereby agreed as follows:
1. DUTIES.
(a) The Company hereby engages Consultant as a merger and acquisition
consultant to assist the Company in implementing its strategy to
acquire additional passenger motorcoach service businesses,
including to the extent requested by the Company,
(i) assisting the Company in designing the Company's acquisition
program and identifying and evaluating potential acquisition
candidates, their operations, historical performance and
future prospects,
(ii) advising the Company on proposed structure, purchase prices
and forms of consideration for acquisitions,
(iii) advising the Company with respect to professional advisers
and others to be retained by the Company in connection with
proposed acquisitions and coordinating their activities and
(iv) advising the Company in discussions and negotiations with
acquisition candidates.
(b) The consulting activities will be provided primarily by Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxxx on behalf of Consultant. Consultant
hereby accepts this engagement upon the terms and conditions
herein contained and agrees to devote a reasonable amount of
time, attention and efforts to promote and further the business
and services of the Company.
2. COMPENSATION.
(a) For all services rendered by Consultant to the Company, the
Company shall compensate the Consultant monthly at the annual
rate of $100,000.
(b) The Company shall reimburse Consultant for all ordinary and
necessary business expenses lawfully and reasonably incurred by
Consultant in the performance of its services. All reimbursable
expenses shall be appropriately documented in reasonable detail
by Consultant upon submission of any request for reimbursement.
3. TERM; TERMINATION; RIGHTS OF TERMINATION. The term of this Agreement
shall begin on the date of this Agreement and continue for a period of three (3)
years unless terminated for "cause" by either party as a result of the failure
of the other party to perform its obligations under this Agreement.
If Consultant terminates this Agreement for "cause" the Company shall be
required to pay Consultant in a lump sum all compensation due Consultant and not
previously paid and all compensation that would have been payable for the
remaining portion of the three year period.
4. TAXES. It is mutually understood and agreed that in the performance of
its services under this Agreement, Consultant is at all times performing its
services as an independent contractor, and acknowledges that it is responsible
for payment of its federal income tax, employment taxes and social security
taxes for its employees. Further, Consultant will comply with all taxing
authorities, regulations and laws, whether federal or state.
5. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Except as required
by the nature of Consultant's duties or with the prior written approval of an
authorized officer of the Company, Consultant will never, during the term of
this Agreement or thereafter, use or disclose any confidential information of
the Company, any of its customers or any potential acquisition candidate,
including without limitation customer lists, market research, strategic plans or
other information or discoveries, inventions, improvements, know-how, methods or
other trade secrets, whether developed by Consultant or others. Consultant will
comply with the Company's policies and procedures for the protection of
confidential information.
6. USE AND RETURN OF DOCUMENTS. Consultant will not disclose any documents,
record, tapes and other media that contain confidential information and will not
copy any such material or remove it from the Company's offices except as
approved by an authorized officer of the Company. Upon termination of this
Agreement, Consultant will return to the Company all copies of documents,
records, tapes, and other media that contain confidential information.
7. REMEDIES. Consultant acknowledges that in the event of a violation by it
of this Agreement the harm to the Company could be irreparable. Consultant
agrees that, in addition to any other remedies provided by law, the Company will
be entitled to obtain injunctive relief against any such violation without
having to post a bond.
8. COMPLETE AGREEMENT. There are no oral representations, understandings,
or agreements with the Company or any of its officers, directors or
representatives covering the same subject matter as this Agreement. This written
Agreement is the final, complete and exclusive statement and expression of the
agreement between the Company and Consultant and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented by evidence of
any prior or contemporaneous oral or written agreements. This written Agreement
may not be later modified except by a further writing signed by the Company and
Consultant, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such terms.
9. NO WAIVER. No waiver by the parties hereto of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a waiver
of any subsequent default or breach of the same or any other term, condition or
covenant contained herein.
10. ASSIGNMENT; BINDING EFFECT. Consultant understands that it may not
assign its rights or obligations hereunder without the prior written consent of
the Company. Subject to the preceding sentence, this Agreement shall be binding
upon and inure to the benefit of the parties thereto and their respective heirs,
successors and assigns. It is further understood and agreed that the Company may
be merged or consolidated with another entity and that any such entity shall
automatically succeed to the rights, powers and duties of the Company hereunder.
11. NOTICES. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
To Consultant: 00 Xxxxxxxxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000
Notice shall be deemed given and effective seven (7) days after the deposit
in the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this paragraph 11.
12. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in the way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part hereof.
13. GOVERNING LAW; PLACE OF PERFORMANCE. This Agreement shall in all
respects be construed according to the laws of the State of Texas.
Coach USA, Inc. Exel Holdings, Ltd.
By:/s/ XXXXXXX XXXXXXXXX /s/ XXXX X. XXXXXXXX
Xxxxxxx Xxxxxxxxx Xxxx X. Xxxxxxxx
Chief Executive Officer
