Exhibit (e)(ii)
MANAGEMENT CONSULTING AGREEMENT
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THIS MANAGEMENT CONSULTING AGREEMENT (the "Agreement"), dated as of
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August __, 2000, by and between Carey International, Inc., a Delaware
corporation (the "Company"), and Chartwell Investments II LLC, a Delaware
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limited liability company (the "Consultant").
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WHEREAS, the Company desires to avail itself of the expertise
possessed by the Consultant and consequently has requested that the Consultant
provide it, from time to time, with certain management consultant and advisory
services related to the business, strategy, administration and affairs of the
Company and the review and analysis of certain financial and other transactions;
and
WHEREAS, the Consultant and the Company agree that it is in their
respective interests to enter into a management consulting agreement whereby,
for the consideration specified herein, the Consultant shall provide such
services as an independent consultant to the Company.
NOW THEREFORE, in consideration of the mutual premises and covenants
contained herein, the Company and the Consultant agree as follows:
1. Retention of Consultant. The Company hereby retains the Consultant,
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and the Consultant hereby accepts such retention, upon the terms and conditions
set forth in this Agreement.
2. Effective Date/Term. This Agreement shall commence as of the date
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of the Closing (as such term is defined in the Agreement and Plan of Merger (the
"Merger Agreement") dated as of July 19, 2000, by and among Carey International,
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Inc., Limousine Holdings, LLC and Aluwill Acquisition Corp.) and shall continue
through the period ending on the tenth anniversary of such date, subject to
renewal pursuant to paragraph 5 below (such period, including any renewal
hereinafter referred to as the "Term").
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3. Management Consulting Services.
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(a) The Consultant shall advise the Company concerning such management
matters relating to the Company's personnel, business and acquisition strategy,
administration and proposed financial transactions, and other senior management
matters relating to the Company as the Company shall reasonably and specifically
request. The Consultant shall not be required to devote any specified amount of
time to any such request, and shall be required to devote only so much time to
any such request as the Consultant shall, in its reasonable discretion, deem
necessary to complete such services. Such consulting services shall, in the
Consultant's reasonable discretion, be rendered in person or by telephone or
other communication. The Consultant shall (i) use its reasonable efforts to deal
effectively with all subjects submitted to it
hereunder and (ii) endeavor to further, by performance of its services
hereunder, the policies and objectives of the Company.
(b) The Consultant shall perform all such services as an independent
contractor to the Company. The Consultant is not an agent or representative of
the Company and has no authority to act for or to bind the Company without its
prior written consent.
(c) This Agreement shall in no way prohibit the Consultant from
engaging in other activities, whether or not competitive with any business of
the Company. The parties hereto agree that, in the event additional services not
contemplated hereby are requested of the Consultant, the parties hereto shall
negotiate the scope of, and appropriate compensation for, such additional
services.
4. Compensation.
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(a) As compensation for the services provided by the Consultant
hereunder, the Company shall pay to the Consultant, as provided herein, a fee
(the "Management Fee") of the greater of $650,000 and 2% of the EBITDA of the
Comany and its subsidiaries for each fiscal year of the Company during
the Term hereof. The Management Fee shall be payable annually, in advance on the
first day of the first fiscal quarter of each fiscal year of the Company during
the Term (except that the first payment will be made on the date hereof), or, if
such date is not a business day, on the next succeeding business day. For
purposes hereof, "EBITDA" shall have the meaning set forth in the Credit
Agreement dated as of August __, 2000 among the Company, the other Credit
Parties signatory thereto, the Lenders party thereto, ____, as Administrative
Agent and Lender thereunder and _______, as Documentation Agent and Lender
thereunder (the "Credit Agreement") from time to time in effect. To the extent
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that any amounts in excess of $____ are due with respect to any fiscal year,
such payments shall be made within 10 business days after completion of the
audit of the financial statements of the Company for such fiscal year. In the
event that payment of any amount hereunder is prohibited by any financing
agreement to which the Company is a party, such amount shall accrue and be made
as soon as such prohibition lapses. The Company covenants and agrees that if an
Event of Default under the Credit Agreement shall have occurred and be
continuing, the Company shall not make any payment of the Management Fee
hereunder but such fee shall accrue and be made as soon as such prohibition
lapses.
(b) In addition to the payment of the Management Fee, the Company
shall reimburse the Consultant for all out-of-pocket costs and expenses
reasonably incurred by the Consultant in connection with the provision of
services hereunder, including reasonable legal, accounting, temporary and
overtime secretarial, travel and entertainment fees and expenses, promptly upon
receipt of a statement of such expense from the Consultant.
(c) If the Agreement is terminated at the Company's option upon 30
days prior notice to the Consultant (the "Company's Termination Option"), the
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Consultant shall, within five business days of termination, receive a payment
equal to the amount of compensation the Consultant would have received
thereunder, absent the exercise of the Company's Termination Option, if the
Agreement had not been terminated until the date on which the Agreement would
next have expired if not renewed.
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5. Renewal. This Agreement shall automatically be renewed by the
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Board of Directors of the Company (the "Board") for additional 1-year periods
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unless the Board determines not to renew the Agreement and gives written notice
to the Consultant of non-renewal at least 60 business days prior to the date in
which the Agreement would otherwise have been renewed.
6. Indemnification. The Company agrees to defend, indemnify and hold
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the Consultant, its officers, employees and agents (each an "Indemnified Party")
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harmless against any liability, claim, loss or expenses (the "Damages") to which
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an Indemnified Party may become subject as a result of the performance of the
Consultant's services hereunder, such claims, losses or expenses shall be paid
when and as incurred; provided that the Company shall not be liable to an
Indemnified Party for Damages resulting primarily and directly from the
Indemnified Party's bad faith, gross negligence or willful misconduct, and
Consultant shall so indemnify the Company, its officers, employees and agents
for Damages arising from its bad faith, gross negligence or willful misconduct.
7. Notices. Any notice, request, demand or other communications
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required or permitted to be given under this Agreement shall be in writing and
shall be effective and deemed to have been duly given when delivered personally
or on the earlier to occur of (a) the date of delivery as shown by the return
receipt; (b) two (2) days after the mailing thereof by registered or certified
mail, return receipt requested, with first class postage prepaid; (c)
confirmation of receipt of telecopy; or (d) the day after shipment by a
nationally recognized overnight delivery service. All notices shall be addressed
to the person at the addresses set forth on the signature page hereto. Any party
hereto may at any time and from time to time change its address for purpose of
receiving notices by giving notice thereof to the other party as provided in
this Section 7. Any notice which is required to be made within a stated period
of time shall be deemed timely if made before midnight of the last day of such
period.
8. Binding Agreement; Benefit. This Agreement shall bind and inure
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to the benefit of any heirs or legal representatives of the Consultant and the
Company.
9. Governing Law. This Agreement shall be subject to and governed by
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the laws of the State of Delaware regardless of applicable conflict of laws
rules or principles or the fact that either or both of the parties now is or may
become a resident of a different state or country.
10. Headings. Section headings are used for convenience only and
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shall in no way affect the construction of this Agreement.
11. Entire Agreement; Additional Agreements; Amendments. This
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Agreement contains the entire understanding of the parties with respect to its
subject matter; provided, however, that nothing contained herein shall be
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construed to prevent the Company from contracting with the Consultant for
additional services pursuant to other, separately documented agreements. Neither
this Agreement nor any part hereof may in any way be altered, amended, extended,
waived, discharged or terminated except by a written agreement signed by each of
the parties.
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12. Successors and Assigns. The benefits of this Agreement shall
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inure to the respective successors and assigns of the parties hereto and of the
Indemnified Parties hereunder and their successors and assigns and
representatives, and the obligations and liabilities assumed hereunder by the
parties hereto shall be binding upon their respective successors and assigns.
Consultant may not assign its rights and obligations hereunder except to an
entity controlled by or under common control with Consultant.
13. Counterparts. This Agreement may be executed in any number of
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counterparts and by each of the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
14. Confidentiality. The Consultant shall maintain the
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confidentiality of all proprietary information received by it in the course of
its engagement hereunder relating to the Company, and shall not use the same for
any purpose other than as contemplated herein.
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IN WITNESS WHEREOF, the parties have duly executed this Consulting
Agreement as of the date first above written.
CAREY INTERNATIONAL, INC.
By:
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Name:
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Title:
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Address:
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CHARTWELL INVESTMENTS II LLC
By:
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Name:
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Title:
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Address:
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Management Consulting Agreement