Management Consulting Agreement - Dex Media West LLC and WCAS Management Corp.
MANAGEMENT CONSULTING AGREEMENT
This Management Consulting Agreement (the "Agreement") is made
as of September 9, 2003, by and among Dex Media West LLC, a Delaware limited
liability company (the "Company") and WCAS Management Corporation, a Delaware
corporation ("Welsh Carson").
RECITALS:
WHEREAS, Welsh Carson, by and through its officers, employees,
agents, representatives and affiliates, has expertise in the areas of corporate
management, finance, product strategy, investment, acquisitions and other
matters relating to the business of the Company; and
WHEREAS, the Company desires to avail itself of the expertise
of Welsh Carson in the aforesaid areas, in which it acknowledges the expertise
of Welsh Carson.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and
the covenants and conditions herein set forth, the parties hereto agree as
follows:
1. APPOINTMENT.
The Company hereby appoints Welsh Carson to render the
advisory and consulting services described in Section 2 hereof for the term of
this Agreement.
2. SERVICES.
(a) During the term of this Agreement, Welsh
Carson shall render to the Company, by and through such of Welsh Carson's
officers, employees, agents, representatives and affiliates as Welsh Carson, in
its sole discretion, shall designate, in cooperation with the Chief Executive
Officer, from time to time, advisory, consulting and other services (the
"Oversight Services") in relation to the operations of the Company, strategic
planning, domestic marketing and financial oversight and including, without
limitation, advisory and consulting services in relation to the selection,
retention and supervision of independent auditors, the selection, retention and
supervision of outside legal counsel, the selection, retention and supervision
of investment bankers or other financial advisors or consultants and the
structuring and implementation of equity participation plans, employee benefit
plans and other incentive arrangements for certain key executives of the
Company.
(b) The parties hereto acknowledge that certain
events will require Welsh Carson to render services beyond the scope of
activities which the parties contemplate as part of the Oversight Services and
for which Welsh Carson shall be entitled to additional compensation hereunder.
It is expressly agreed that the Oversight Services shall not include
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Investment Banking Services. "Investment Banking Services" means investment
banking, financial advisory or any other services rendered by Welsh Carson to
the Company in connection with any acquisitions and divestitures by the Company
or any of its subsidiaries, including, without limitation, the sale of
substantially all or any portion of the assets of the Company, whether by a sale
of assets, the equity interests of the Company, merger or otherwise, and the
acquisition or sale of any subsidiary, division or service area of the Company,
or (iii) the public or private sale of debt or equity interests of the Company,
or any of its affiliates or any similar financing transactions. The Oversight
Services and the Investment Banking Services shall be referred to herein as the
"Services."
3. FEES.
(a) In consideration of the performance of the
Oversight Services contemplated by Section 2(a) hereof, the Company agrees to
pay to Welsh Carson (i) a closing fee of $20,000,000 and (ii) an aggregate per
annum fee (the "Fee"), continuing until such time as this Agreement is
terminated in accordance with Section 6, an amount equal to $1,000,000 per
annum. The Fee shall be payable quarterly in advance beginning on the Closing
Date (as such term is defined in the Purchase Agreement by and among Qwest Dex,
Inc., Qwest Services Corporation, Qwest Communications International Inc. and
Dex Holdings LLC dated as of August 19, 2002). Fee payments shall be
non-refundable.
(b) In consideration of any Investment Banking
Services provided to the Company, Welsh Carson shall be entitled to receive
additional reasonable compensation as agreed upon by the parties hereto and
approved by a majority of the members of the board of directors of the Company.
4. OUT-OF-POCKET EXPENSES.
In addition to the compensation payable to Welsh Carson
pursuant to Section 3 hereof, the Company shall, at the direction of Welsh
Carson, pay directly, or reimburse Welsh Carson for, its reasonable
Out-of-Pocket Expenses. For the purposes of this Agreement, the term
"Out-of-Pocket Expenses" shall mean the amounts actually paid by Welsh Carson in
cash in connection with its performance of the Services, including, without
limitation, reasonable (i) fees and disbursements (including underwriting fees)
of any independent auditors, outside legal counsel, consultants, investment
bankers, financial advisors and other independent professionals and
organizations, (ii) costs of any outside services or independent contractors
such as financial printers, couriers, business publications or similar services
and (iii) transportation, per diem, telephone calls, word processing expenses or
any similar expense not associated with its ordinary operations. All
reimbursements for Out-of-Pocket Expenses shall be made promptly upon or as soon
as practicable after presentation by Welsh Carson to the Company of the
statement in connection therewith.
5. INDEMNIFICATION.
The Company will indemnify and hold harmless Welsh Carson and
its officers, employees, agents, representatives, members and affiliates (each
being an "Indemnified Party")
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from and against any and all losses, costs, expenses, claims, damages and
liabilities (the "Liabilities") to which such Indemnified Party may become
subject under any applicable law, or any claim made by any third party, or
otherwise, to the extent they relate to or arise out of the performance of the
Services contemplated by this Agreement or the engagement of Welsh Carson
pursuant to, and the performance by Welsh Carson of the Services contemplated
by, this Agreement. The Company will reimburse any Indemnified Party for all
reasonable costs and expenses (including reasonable attorneys' fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim for which the
Indemnified Party would be entitled to indemnification under the terms of the
previous sentence, or any action or proceeding arising therefrom, whether or not
such Indemnified Party is a party hereto, provided that, subject to the
following sentence, the Company shall be entitled to assume the defense thereof
at its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment. Any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense, and in any action, claim or
proceeding in which the Company, on the one hand, and an Indemnified Party, on
the other hand, is, or is reasonably likely to become, a party, such Indemnified
Party shall have the right to employ separate counsel at the Company's expense
and to control its own defense of such action, claim or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Company, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate representation
advisable. The Company agrees that it will not, without the prior written
consent of the applicable Indemnified Party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated hereby (if any Indemnified Party
is a party thereto or has been actually threatened to be made a party thereto)
unless such settlement, compromise or consent includes an unconditional release
of the applicable Indemnified Party and each other Indemnified Party from all
liability arising or that may arise out of such claim, action or proceeding.
Provided that the Company is not in breach of its indemnification obligations
hereunder, no Indemnified Party shall settle or compromise any claim subject to
indemnification hereunder without the consent of the Company. The Company will
not be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability, cost or expense is determined by a court, in
a final judgment from which no further appeal may be taken, to have resulted
solely from the gross negligence or willful misconduct of Welsh Carson. If an
Indemnified Party is reimbursed hereunder for any expenses, such reimbursement
of expenses shall be refunded to the extent it is finally judicially determined
that the Liabilities in question resulted solely from the gross negligence or
willful misconduct of Welsh Carson.
6. TERMINATION.
This Agreement shall be in effect on the date hereof and shall
continue until such time as Welsh Carson or one or more of its affiliates
collectively control, in the aggregate, less than 10% of the equity interests of
the Company, or such earlier time as the Company and Welsh Carson may mutually
agree. The provisions of Sections 5 and 8 and otherwise as the context so
requires shall survive the termination of this Agreement.
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7. OTHER ACTIVITIES.
Nothing herein shall in any way preclude Welsh Carson or its
officers, employees, agents, representatives, members or affiliates from
engaging in any business activities or from performing services for its own
account or for the account of others, including for companies that may be in
competition with the business conducted by the Company.
8. GENERAL.
(a) No amendment or waiver of any provision of
this Agreement, or consent to any departure by either party from any such
provision, shall be effective unless the same shall be in writing and signed by
the parties to this Agreement, and, in any case, such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) This Agreement and the rights of the parties
hereunder may not be assigned without the prior written consent of the parties
hereto; provided, however, that Welsh Carson may, at its sole discretion, assign
or transfer its duties or interests hereunder to its affiliates.
(c) Any and all notices hereunder shall, in the
absence of receipted hand delivery, be deemed duly given when mailed, if the
same shall be sent by registered or certified mail, return receipt requested,
and the mailing date shall be deemed the date from which all time periods
pertaining to a date of notice shall run. Notices shall be addressed to the
parties at the following addresses:
If to Welsh Carson: WCAS Management Corporation
c/o Welsh Carson, Anderson & Stowe
320 Park Avenue
Suite 2500
New York, NY 10022
Attention: Anthony J. de Nicola
If to the Company: Dex Media West LLC
198 Inverness Drive West
Englewood, CO 80112
Attention: Chief Executive Officer
(d) This Agreement shall constitute the entire
agreement between the parties with respect to the subject matter hereof, and
shall supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating hereto.
(e) This Agreement shall be governed by, and
enforced in accordance with, the laws of the State of New York (excluding the
choice of law principles thereof). Each of the parties hereby irrevocably and
unconditionally consents to submit to the exclusive
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jurisdiction of the courts of the State of New York and of the United States of
America, in each case located in the County of New York, in any action or
proceeding arising out of or relating to this Agreement. This Agreement shall
inure to the benefit of, and be binding upon, Welsh Carson and the Company
(including any present or future subsidiaries of the Company that are not
signatories hereto), and their respective successors and assigns.
(f) This Agreement may be executed in multiple
counterparts, and by different parties on separate counterparts. Each set of
counterparts showing execution by all parties shall be deemed an original, and
shall constitute one and the same instrument.
(g) The waiver by any party of any breach of
this Agreement shall not operate as or be construed to be a waiver by such party
of any subsequent breach.
[signature page to follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers or agents as set
forth below.
DEX MEDIA WEST LLC
By: /s/ George Burnett
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Name: George Burnett
Title: CEO and President
WCAS MANAGEMENT CORPORATION
By: /s/ Jonathan M. Rather
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Name: Jonathan M. Rather
Title: Treasurer
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