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EXHIBIT 10.12
MANAGEMENT CONSULTING
AGREEMENT dated as of
September 28, 1995, between
ADVANCED ACCESSORY SYSTEMS,
LLC, a Delaware limited
liability company (the
"Company"), and F. XXXX
XXXXX (the "Consultant").
Reference is made to the Asset Purchase Agreement dated as of
September 28, 1995, as amended (the "Purchase Agreement"), among MascoTech,
Inc., a Delaware corporation ("MascoTech"), the Company and the other parties
thereto. Pursuant to the Purchase Agreement, the Company has acquired
substantially all of the assets of the Accessories Group of MascoTech Automotive
Systems Group, Inc. and MascoTech Industrial Components, Inc.
The Company desires to retain the Consultant to perform
management consulting services for the Company and its parent company AAS
Holdings, LLC (the "Parent"), and the Consultant desires to perform such
management consulting services for the Company and the Parent, in each case,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties agree as follows:
SECTION 1. RETENTION OF CONSULTANT. The Company hereby retains
the Consultant as a consultant, and the Consultant hereby accepts such retention
by the Company, upon the terms and conditions hereinafter set forth. The
Consultant shall perform all such services as an independent contractor to the
Company and not as an employee, agent or representative of the Company.
SECTION 2. TERM. The retention of the Consultant hereunder
shall be for a period commencing on the date hereof (the "Commencement Date")
and ending at the end of the eighteenth month after the date hereof or such
earlier date upon which the retention of the Consultant shall terminate in
accordance with the provisions hereof. Unless terminated earlier in accordance
with the provisions hereof, the retention of the Consultant hereunder shall
continue after the end of such eighteenth month for successive six-month periods
unless the Company shall give the Consultant notice to terminate such retention
no later than 30 days prior to the commencement of any such six-month period.
The period commencing on the Commencement Date and ending on the date of
termination of the Consultant's retention hereunder shall be called the "Term",
and the date on which the Consultant's retention hereunder shall terminate shall
be called the "Termination Date".
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SECTION 3. DUTIES. During the Term, the Consultant shall serve
as the Chairman of the Board of Managers of the Company and the Parent and shall
advise the Company concerning such matters that relate to the business and
affairs of the Company and its affiliates, in each case as the Company shall
reasonably request, and shall perform such duties as are consistent therewith as
the Board of Managers of the Company (the "Board") shall designate. Following
the Termination Date, the Consultant shall continue to serve on such Boards in
accordance with the provisions of the Members Agreement of even date herewith
among the Parent, the Consultant and the other parties named therein.
SECTION 4. TIME TO BE DEVOTED TO SERVICES. During the Term,
the Consultant shall devote no less than five business days per month to the
business of the Company, its subsidiaries and the Parent.
SECTION 5. COMPENSATION. (a) The Company (or at the Company's
option, any subsidiary or affiliate thereof) shall pay to the Consultant an
annual consulting fee (the "Base Fee") during the Term of $150,000, payable in
equal monthly installments.
(b) During the Term, the Consultant shall be eligible to
participate in incentive compensation or bonus plans that the Board has
implemented for its senior executives which will generally provide the
Consultant the opportunity to receive an annual cash bonus in the range of
30-50% of the Base Fee subject to the achievement by the Company of performance
goals established by the Board in its sole discretion.
(c) Anything contained in this Agreement to the contrary
notwithstanding, during the continuation of any payment default by the Company
under the Acquisition Indebtedness, the Company's obligation to pay the Fee
shall be accrued and deferred until such payment default shall have been cured.
Any portion of the Fee so deferred shall be paid as soon as practical after such
payment default shall be cured but in any event within one year thereafter. As
used herein, (i) "Acquisition Indebtedness" shall mean any indebtedness (a)
under the Credit Agreement dated the date hereof, among the Parent, the Company
and the financial institutions from time to time party thereto, as amended,
restated, modified or supplemented (the "Credit Agreement"), (b) under the
Senior Subordinated Loan Agreement dated the date hereof between the Company and
London Pacific Life & Annuity Company (the "Subordinated Loan Agreement") and
(c) used to refinance the indebtedness evidenced by the Credit Agreement and the
Subordinated Loan Agreement and (ii) "payment default" shall mean the failure to
pay any amount in a timely fashion.
(d) Following the Termination Date and for so long as the
Consultant shall continue to serve on the Boards of the Company and Parent, the
Consultant shall receive an annual Board fee of no less than 10% of the
aggregate purchase price for all Units of the Parent acquired by him, payable in
equal monthly installments.
SECTION 6. BUSINESS EXPENSES; BENEFITS. (a) The Company (or,
at the Company's option, any subsidiary or affiliate thereof) shall reimburse
the Consultant, in accordance with its practice from time to time, for all
reasonable and necessary expenses and other disbursements incurred by the
Consultant for or on behalf of the Company in the
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performance of the Consultant's duties hereunder. The Consultant shall provide
such appropriate documentation of expenses and disbursements as may from time to
time be required by the Company.
(b) The Company shall have no obligation to provide any
benefits to Consultant, including, without limitation, any health, life or
disability benefits.
SECTION 7. INVOLUNTARY TERMINATION. (a) If the Consultant is
incapacitated or disabled in a manner that would prevent the Consultant from
performing his duties hereunder for a period of 90 consecutive days, the Term
and the retention of the Consultant under this Agreement shall cease and the
Company shall have no further obligation hereunder.
(b) If the Consultant dies during the Term, the Term and the
Consultant's retention hereunder shall cease as of the date of the Consultant's
death and the Company shall have no further obligation hereunder.
SECTION 8. DISCLOSURE OF INFORMATION. The Consultant shall
not, at any time during the Term or thereafter, disclose to any person, firm,
corporation or other business entity, except as required by law, any non-public
information (including, without limitation, non-public information obtained
prior to the date hereof) concerning the business, clients or affairs of the
Company or any subsidiary or affiliate thereof for any reason or purpose
whatsoever, nor shall the Consultant make use of any of such non-public
information for his own purpose or for the benefit of any person, firm,
corporation or other business entity except the Company or any subsidiary or
affiliate thereof. Upon the termination of the Term, the Consultant shall return
to the Company all property of the Company or any subsidiary or affiliate
thereof then in the possession of the Consultant and all books, records,
computer tapes or discs and all other material containing non-public information
concerning the business, clients or affairs of the Company or any subsidiary or
affiliate thereof. Notwithstanding the foregoing, the Consultant shall be
entitled to retain any records and information he would otherwise be entitled to
possess by virtue of his status as a Member of the Parent.
SECTION 9. NOTICES. All notices, claims, certificates,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given and delivered if personally delivered or
if sent by nationally-recognized overnight courier, by telecopy, or by
registered or certified mail, return receipt requested and postage prepaid,
addressed as follows:
if to the Company, to:
000 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Telecopier: (000) 000-0000;
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with copies to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000;
if to the Consultant, to:
F. Xxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
or to such other address as the party to whom notice is to be given may have
furnished to the other party or parties in writing in accordance herewith. Any
such notice or communication shall be deemed to have been received (a) in the
case of personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, when received, and (d) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
SECTION 10. BINDING AGREEMENT; BENEFIT. Subject to Section
15, the provisions of this Agreement will be binding upon, and will inure to the
benefit of, the respective heirs, legal representatives, successors and assigns
of the parties.
SECTION 11. GOVERNING LAW. This Agreement will be governed
by, and construed and enforced in accordance with, the laws of the State of
Michigan (without giving effect to principles of conflicts of laws).
SECTION 12. WAIVER OF BREACH. The waiver by either party of a
breach of any provision of this Agreement must be in writing and shall not
operate or be construed as a waiver of any other breach.
SECTION 13. ENTIRE AGREEMENT; AMENDMENTS. This Agreement
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements or understandings between the
parties with respect thereto. This Agreement may be amended only by an agreement
in writing signed by the parties.
SECTION 14. HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 15. ASSIGNMENT. This Agreement is personal in its
nature and the parties shall not, without the consent of the other, assign or
transfer this Agreement or any
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rights or obligations hereunder; provided, however, that the Company may assign
this Agreement to any of its subsidiaries and affiliates.
SECTION 16. COUNTERPARTS. This Agreement may be executed in
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 17. GENDER. Any reference to the masculine gender
shall be deemed to include the feminine and neuter genders unless the context
otherwise requires.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Consulting Agreement as of the date first written above.
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ M. Liechtenstein
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Name: M. Liechtenstein
Title: Vice President
/s/ F. Xxxx Xxxxx
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F. Xxxx Xxxxx
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