Exhibit 10.2
MANAGEMENT CONSULTING AGREEMENT
THIS MANAGEMENT CONSULTING AGREEMENT (this "Agreement"), is executed as of
the 14th day of December, 2001 by, between and among Jordan Industries, Inc., an
Illinois corporation (the "Consultant"), and each of the other parties a
signatory hereto (hereinafter collectively referred to as the "Company").
W I T N E S S E T H:
WHEREAS, the Consultant has and/or has access to personnel who are highly
skilled in the field of rendering advice to businesses;
WHEREAS, the Board of Directors of the Company has been made fully
aware of the relationships of certain members of the Company's Board of
Directors to the Consultant;
WHEREAS, the Company's Board of Directors has reviewed in detail and
discussed the terms and provisions of this Agreement and the fairness of this
Agreement and whether more favorable agreements for the Company could be
obtained from unaffiliated third parties; and
WHEREAS, on the basis of its review of this Agreement, the Board of
Directors of the Company deemed it advisable and in the best interests of the
Company and necessary to the conduct, promotion, and attainment of the business
objectives of the Company that the Company retain Consultant to provide business
and financial advice to the Company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereto do hereby agree as follows:
1. The Company hereby retains the Consultant, through the Consultant's own
personnel or through personnel available to the Consultant, to render consulting
services from time to time to the Company and its direct and indirect
subsidiaries (whether now existing or hereafter acquired) in connection with
their acquisitions, divestitures and investments, their financial and business
affairs, their relationships with their lenders, stockholders and other
third-party associates or affiliates, and the expansion of their businesses.
Consultant shall render such services to the Company and/or its direct and
indirect subsidiaries in good faith and in accordance with professional
standards and applicable law. The term of this Agreement shall commence the date
hereof and continue until December 31, 2011, unless extended, or sooner
terminated, as provided in Section 5 below. The Consultant's personnel shall be
reasonably available to the Company's managers, auditors and other personnel for
consultation and advice pursuant to this Agreement, subject to Consultant's
reasonable convenience and scheduling. Services may be rendered at the
Consultant's offices or at such other locations selected by the Consultant as
the Company and the Consultant shall from time to time agree.
2. Subject to Section 4 hereof, the Company shall pay to the Consultant a
consulting services fee of up to the greater of (i) three percent (3%) of the
net income before interest, tax, depreciation, amortization and other non-cash
charges of the Company and its subsidiaries, without duplication, in each case,
charged, expensed or accrued against such net income, as reflected in the
Company's audited financial statements for the preceding fiscal year or (ii) one
percent (1%) of the net sales of the Company and its subsidiaries, without
duplication, payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year. Notwithstanding and in addition to the foregoing, if
the Consultant renders services to the Company outside the ordinary course of
business, the Company shall pay an additional amount equal to the value of such
extraordinary services rendered by the Consultant as may be separately agreed to
between the Consultant and the Company.
3. The Company shall promptly reimburse Consultant for out-of-pocket
expenses (including, without limitation, an allocable amount of the Consultant's
overhead expenses, attributable to the Company and its direct and indirect
subsidiaries, determined on actual usage, percentage of revenue or such other
basis as Consultant may determine), incurred by the Consultant and its personnel
in performing services hereunder to the Company and its direct and indirect
subsidiaries upon the Consultant rendering a statement therefor, together with
supporting data as the Company shall reasonably require.
4. Notwithstanding the foregoing, the Company shall not be required to pay
the fees under Section 2, (a) if and to the extent expressly prohibited by the
provisions of any credit, stock, financing or other agreements or instruments
binding upon the Company, its subsidiaries or properties, (b) if the Company has
not paid cash interest on any interest payment date or has postponed or not made
any principal payments with respect to any of their indebtedness on any
scheduled payment dates, or (c) if the Company has not paid cash dividends on
any dividend payment date as set forth in its certificate of incorporation or as
declared by its Board of Directors, or has postponed or not made any redemptions
on any redemption date as set forth in its certificate of incorporation or any
certificate of designation with respect to its preferred stock, if any. Any
payments otherwise owed hereunder, which are not made for any of the
above-mentioned reasons, shall not be canceled but rather accrue, and shall be
payable by the Company promptly when, and to the extent, that the Company is no
longer prohibited from making such payments and when the Company has become
current with respect to such principal or interest payments, has become current
with respect to such dividends and has made such redemptions with respect to
such preferred stock, if any. Any payment required hereunder which is not paid
when due shall bear interest at the rate of ten percent (10%) per annum. This
Section 4 will not, in any event, restrict or limit the Company's obligations
under Sections 3, 8 and 9, which will be absolute and not subject to set-off.
5. This Agreement shall be automatically renewed for successive one-year
terms starting December 31, 2011 unless either party hereto, within sixty (60)
days prior to the scheduled renewal date, notifies the other party as to its
election to terminate this Agreement. Notwithstanding the foregoing, this
Agreement may be terminated by not less than ninety (90) days' prior written
notice from the Company to the Consultant at any time after (a) substantially
all of the stock or substantially all of the assets of the Company or all of its
subsidiaries are sold to an entity unaffiliated with the Consultant and/or a
majority of the Company stockholders immediately prior to the sale or (b) the
Company is merged or consolidated into another entity unaffiliated with the
Consultant and/or a majority of the Company's stockholders immediately prior to
such merger and the Company is not the survivor of such transaction. Subject to
the foregoing, this Agreement will not be terminated as a result of any Company
ceasing to be a subsidiary of Consultant for financial reporting or other
purposes.
6. The Consultant shall have no liability to the Company on account of (i)
any advice which it renders to the Company or any of its direct or indirect
subsidiaries, provided the Consultant believed in good faith that such advice
was useful or beneficial to the Company or any of its direct or indirect
subsidiaries at the time it was rendered, or (ii) the Consultant's inability to
obtain financing or achieve other results desired by the Company (or any of its
direct or indirect subsidiaries) or Consultant's failure to render services to
the Company at any particular time or from time to time, or (iii) the failure of
any acquisition, divestiture, financing or business plan to meet the financial,
operating, or other expectations of the Company or any of its direct or indirect
subsidiaries. The Company's and any of its direct or indirect subsidiaries' sole
remedy for any claim under this Agreement shall be termination of this
Agreement.
7. Notwithstanding anything contained in this Agreement to the contrary,
the Company agrees and acknowledges for itself and on behalf of its direct and
indirect subsidiaries that the Consultant, JII, Inc., JII Partners Limited
Partnership, The Jordan Company, TJC Management Corp., Jordan/Zalaznick Capital
Company, JZ Equity Partners, PLC, Leucadia National Corporation or any
affiliates of any of the foregoing (collectively, the "Jordan Affiliates") and
their respective portfolio companies, shareholders, partners, employees,
directors and agents intend to engage and participate in acquisitions and
business transactions outside of the scope of the relationship created by this
Agreement and neither the Consultant, any of the Jordan Affiliates nor any of
their respective shareholders, partners, employees, directors or agents shall be
under any obligation whatsoever to make such acquisitions or business
transactions through the Company or any of its direct or indirect subsidiaries
or offer such acquisitions or business transactions to the Company or any of its
direct or indirect subsidiaries.
8. The Company will, and will cause each of its direct and indirect
subsidiaries to, indemnify and hold harmless to the fullest extent permitted by
applicable law, the Consultant, its affiliates and associates, each of the
Jordan Affiliates, and each of the respective owners, partners, officers,
directors, employees and agents of each of the foregoing, from and against any
loss, liability, damage, claim or expenses (including the fees and expenses of
counsel) arising as a result or in connection with this Agreement, the
Consultant's services hereunder or other activities on behalf of the Company and
its direct and indirect subsidiaries.
9. Any payments paid by the Company under this Agreement shall not be
subject to set-off and shall be increased by the amount, if any, of any taxes
(other than income taxes) or other governmental charges levied in respect, of
such payments, so that the Consultant is made whole for such taxes or charges.
10. (a) This Agreement sets forth the entire understanding of the parties
with respect to the Consultant's rendering of services set forth in Section 1 to
the Company. This Agreement may not be modified, waived, terminated or amended
except expressly by an instrument in writing signed by the Consultant and the
Company.
(b) This Agreement may be assigned by Consultant to any of its
subsidiaries or affiliates without the consent of the Company, provided,
however, such assignment shall not relieve such party from its obligations
hereunder. Any assignment of this Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns.
(c) In the event that any provision of this Agreement shall be held
to be void or unenforceable in whole or in part, the remaining provisions of
this Agreement and the remaining portion of any provision held void or
unenforceable in part shall continue in full force and effect.
(d) Except as otherwise specifically provided herein, notice given
hereunder shall be deemed sufficient if delivered personally or sent by
registered or certified mail to the address of the party for whom intended at
the principal executive offices of such party, or at such other address as such
party may hereinafter specify by written notice to the other party.
(e) If at any time after the date upon which this Agreement is
executed, the Company acquires or creates one or more subsidiary corporations
(a "Subsequent Subsidiary"), the Company shall cause such Subsequent Subsidiary
to be subject to this Agreement and all references herein to the Company's
"direct and indirect subsidiaries" shall be interpreted to include all
Subsequent Subsidiaries.
(f) Each subsidiary of the Company shall be jointly and severally
liable and obligated hereunder with respect to each obligation, responsibility
and liability of the Company, as if a direct obligation of such subsidiary.
(g) No waiver by either party of any breach of any provision of this
Agreement shall be deemed a continuing waiver or a waiver of any preceding or
succeeding breach of such provision or of any other provision herein contained.
(h) (The Consultant and its personnel shall, for purposes of this
Agreement, be independent contractors with respect to the Company.
(i) This Agreement shall be governed by the internal laws (and not
the law of conflicts) of the State of Delaware.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
JORDAN INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
MOTORS AND GEARS HOLDINGS, INC.
KINETEK, INC.
KINETEK INDUSTRIES, INC.
FIR GROUP HOLDINGS, INC.
FIR GROUP HOLDINGS ITALIA, S.R.L (ITALIAN LLC)
CONSTRUGIONI ITALIANE MOTORI ELETTRICI S.P.A.
(ITALIAN CORPORATION)
SELINSISTEMI, S.P.A. (ITALIAN CORPORATION)
FIR ELECTROMECCANICA, S.P.A. (ITALIAN
CORPORATION)
T.E.A. TECHNOLOGIE ELECTROMECCANICHE ED
AUTOMAZIONE, S.R.L (ITALAIN LLC)
MOTION HOLDINGS, INC.
MOTION CONTROL ENGINEERING, INC.
▇▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
▇▇▇▇▇▇-▇▇▇▇▇ DE MEXICO S.A. DE C.V
THE IMPERIAL ELECTRIC COMPANY
GEAR RESEARCH, INC.
ADVANCED D.C. HOLDINGS, INC.
ADVANCED D.C. MOTORS, INC.
SERMED S.A.R.L.
ADVANCED D.C. MOTORS GMBH
ELECTRIC VENICLE COMPONENTS LTD.
ELECTRICAL DESIGN AND CONTROL COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
