EXHIBIT 10.12
MANAGEMENT CONSULTING AGREEMENT dated as
of September 28, 2001, between ADVANCED ACCESSORY
SYSTEMS, LLC, a Delaware limited liability
company (the "Company"), and F. ALAN SMITH (the
"Consultant").
The Company desires to retain the Consultant to perform
management consulting services for the Company and its subsidiaries and the
Consultant desires to perform such management consulting services for the
Company and its subsidiaries, in each case, upon the terms and conditions
hereinafter set forth. References herein to the Company's subsidiaries shall be
deemed to include all of the Company's direct and indirect subsidiaries.
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 on the
date that is ten (10) days after either party hereto provides written notice to
the other party of its desire to terminate this Agreement (or such later date as
may be specified in such notice). 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".
SECTION 3. DUTIES.
During the Term, the Consultant shall, at the request of the
Company or the Board, serve as the Chairman of the Board of Managers of the
Company (the "Board") and the Board of Managers (or Board of Directors, as
applicable) of any or all of the Company's subsidiaries and shall advise the
Company concerning such matters that relate to the business and affairs of the
Company and its subsidiaries, in each case as the Company shall reasonably
request, and shall perform such duties as are consistent therewith as the Board
shall designate. Following the Termination Date, the Consultant shall continue
to serve on such Boards in accordance with the provisions of the Third Amended
and Restated Members Agreement dated as of September 30, 1999 among the Company,
the Consultant and the other parties named therein, as the same may be amended
or modified from time to time.
SECTION 4. TIME TO BE DEVOTED TO SERVICES.
During the Term, the Consultant shall not be required to
devote any specified amount of time to the provisions of services hereunder and
shall only be required to devote such reasonable amount of time to the business
of the Company and its subsidiaries as the Consultant shall reasonably determine
to be necessary to fulfill his duties hereunder.
SECTION 5. COMPENSATION.
(a) The Company (or at the Company's option, any subsidiary thereof) shall pay
to the Consultant an annual consulting fee (the "Fee") during the Term of
$75,000, payable in equal monthly installments.
(b) Following the Termination Date and for so long as the Consultant shall
continue to serve on the Boards of the Company, the Consultant shall receive an
annual Board fee of no less than 10% of the aggregate purchase price for all
Units of the Company acquired by him, payable in equal monthly installments.
SECTION 6. BUSINESS EXPENSES; BENEFITS.
(a) The Company (or, at the Company's option, any subsidiary 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 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. 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
Company.
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SECTION 8. 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:
12900 Hall Road
Suite 200
Sterling Heights, MI 48313
Attention: Chief Executive Officer
Telecopier: (810) 997-6839;
with copies to:
O'Sullivan LLP
30 Rockefeller Plaza
New York, NY 10112
Attention: Ilan S. Nissan, Esq.
Telecopier: (212) 408-2420;
if to the Consultant, to:
F. Alan Smith
674 Franklyn Avenue
Indialantic, FL 32903
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 9. 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.
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SECTION 10. 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 11. 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 12. 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 13. 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 14. 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
rights or obligations hereunder; provided, however, that the Company may assign
this Agreement to any of its subsidiaries.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in counterparts, and each such
counterpart shall be deemed to be an original instrument, but both such
counterparts together shall constitute but one agreement.
SECTION 16. 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 Management Consulting Agreement as of the date first written
above.
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ Terence C. Seikel
------------------------------------
Name:
Title:
/s/ F. Alan Smith
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F. Alan Smith