Exhibit (d)(viii)
CAREY INTERNATIONAL, INC.
4530 Wisconsin Avenue, NW
Washington, D.C. 20016
May 12, 2000
Mr. Guy C. Thomas
Carey International, Inc.
4530 Wisconsin Avenue, N.W.
Washington, DC 20016
Dear Mr. Thomas:
The Board of Directors (the "Board") of Carey International, Inc. (the
"Company") has determined that it is in the best interests of the Company and
its shareholders for the Company to agree, as provided herein, to pay you
termination compensation under the circumstances described below.
The Board recognizes that the continuing possibility of a sale or change of
control of the Company is unsettling to you. Therefore, these arrangements are
being made to help assure a continuing dedication by you to your duties to the
Company by diminishing the inevitable distraction to you from the personal
uncertainties and risks created by a pending sale or change of control of the
Company. In particular, the Board believes it important, should the Company
receive proposals from third parties with respect to its future, to enable you,
without being influenced by the uncertainties of your own situation, to assess
and advise the Board whether such proposals would be in the best interests of
the Company and its shareholders and to take such other action regarding such
proposals as the Board might determine to be appropriate. The Board also wishes
to demonstrate to executives of the Company that the Company is concerned with
the welfare of its executives and intends to see that loyal executives are
treated fairly.
1. In view of the foregoing and in further consideration of your
continued employment with the Company, the Company will pay to you, in the event
that there occurs a Change of Control of the Company while you are employed by
the Company, within ten (10) days following the Change of Control, the sum of
Three Hundred Thousand Dollars ($300,000.00).
Mr. Guy C. Thomas
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2. For purposes of this Agreement, "Change of Control" means (a) the
acquisition by any person or group within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), except for an employee benefit plan sponsored by the Company, of
beneficial ownership (within the meeting of Rule 13(d)-3 promulgated under the
Exchange Act) of twenty (20) percent or more of (i) the outstanding shares of
common stock of the Company, or (ii) the combined voting power of the then
outstanding voting securities of the Company that are entitled to vote generally
in the election of directors, (b) individuals who, as of May 12, 2000, are
members of the Company's Board of Directors or directors whose subsequent
nomination or election was approved by a vote of at least a majority of such
incumbents, but excluding any individual whose initial assumption of office
occurs as a result of an actual or threatened solicitation to which Rule 14a -11
or Regulation 14A promulgated under the Exchange Act applies (or other actual or
threatened solicitation of proxies or consents), cease for any reason to
constitute a majority of the Board, or (c) approval by the Company's
shareholders of a reorganization, merger, consolidation or share exchange,
unless the holders of the Company's common stock immediately prior to the
transaction own a majority of the votes entitled to be cast for the directors
immediately following such transaction, or (d) approval of the Company's
shareholders of a liquidation or dissolution, or a sale, lease, exchange or
other disposition (in one transaction or a series of transactions) of all, or
substantially all, of the assets of the Company.
3. It is the intention of the Company and you that no payments by the
Company to you or for your benefit under this Agreement or any other agreement
or plan pursuant to which you are entitled to receive payments or benefits shall
be non-deductible to the Company by reason of the operation of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code") relating to parachute
payments. Accordingly, notwithstanding any other provision of this Agreement or
any such agreement or plan, if by reason of the operation of Section 280G of the
Code, any such payments exceed the amount which can be deducted by the Company,
such payments shall be reduced to the maximum which can be deducted by the
Company. To the extent that payments exceeding such maximum deductible amount
have been made to or for your benefit, such excess payments shall be refunded to
the Company with interest thereon at the applicable Federal rate as determined
under Section 1274(d) of the Code, compounded annually, or at such other rate as
may be required in order that no such payments shall be non-deductible to the
Company by reason of the operation of Section 280G. To the extent that there is
more than one method of reducing the payments to bring them within the
limitations of Section 280G, you shall determine which method shall be followed,
provided that, if you fail to make such determination within forty-five (45)
days after the Company has sent you written notice of the need of such
reduction, the Company may
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Mr. Guy C. Thomas
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determine the method of such reduction in its sole discretion. If any dispute
between the Company and you as to the amounts payable hereunder, or the method
of calculating such amounts, cannot be resolved by the Company and you, either
party after giving three (3) days written notice to the other may refer the
dispute to an independent certified public accounting firm agreeable to both
parties. The determination of such firm as to the amounts to be determined and
the method of calculating such amounts shall be final and binding on both the
Company and you. The Company shall bear the costs of any such determination.
4. This Agreement shall be binding upon and inure to the benefit of you,
your estate and the Company and any successor or assign of the Company, but
neither this Agreement nor any rights arising hereunder may be assigned or
pledged by you. If you should die while any amount would still be payable to
you hereunder if you had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
your devisee, legatee, or other designee or, if there be no such designee, to
your estate.
5. Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand, by courier, by facsimile, or
sent by certified mail, return receipt requested, prepaid, to the addresses set
forth below or such other address as either party may from time to time
designate in writing to the other and shall be deemed given as of the date of
the delivery if delivered by hand or by courier or, if mailed, three (3) days
after the date of mailing.
If to you:
Guy C. Thomas
c/o Carey International, Inc.
4530 Wisconsin Avenue, N.W.
Washington, D.C. 20016
If to the Company:
Carey International, Inc.
4530 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Att.: Chief Executive Officer
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Mr. Guy C. Thomas
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6. No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in a writing signed
by you and such officer as may be specifically designated by the Board. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the time or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Delaware without regard to choice or conflicts of law principles.
7. The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
8. Nothing in this Agreement shall prevent or limit your continuing or
future participation in any benefit, bonus, incentive or other plan or program
provided by the Company and for which you may qualify. Amounts which are vested
benefits or which you are otherwise entitled to receive under any plan or
program of the Company at or subsequent to any Change of Control shall be
payable in accordance with such plan or program unless required to be paid
earlier in accordance with this Agreement.
9. If you assert any claim in any contest (whether initiated by you or by
the Company) as to the validity, enforceability or interpretation of any
provision of this Agreement, the Company shall pay all reasonable legal fees and
expenses incurred by you, so long as your claim is not frivolous.
10. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof, and shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, permitted
assigns and legal representations.
11. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, and in pleading or proving any provision of this
Agreement it shall not be necessary to produce more than one of such
counterparts.
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Mr. Guy C. Thomas
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12. The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
If you are in agreement with the foregoing, please so indicate by signing
and returning to the Company the enclosed copy of this letter, whereupon this
letter shall constitute a binding agreement under seal between you and the
Company.
Very truly yours,
CAREY INTERNATIONAL, INC.
By /s/ Don R. Dailey
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Agreed:
/s/ Guy C. Thomas
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Guy C. Thomas
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