Exhibit 10.37
MANAGEMENT SERVICES AGREEMENT
MANAGEMENT SERVICES AGREEMENT (this "Agreement"), dated as of October 29,
2003, by and between MacAndrews & Forbes Holdings Inc., a Delaware corporation
("Holdings"), and M & F Worldwide Corp., a Delaware corporation (the "Company").
W I T N E S S E T H:
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WHEREAS, the Company, though its subsidiaries, is engaged in the production
of licorice extract, other flavoring agents and plant products and conducts
related activities (collectively, the "Business");
WHEREAS, Xxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxx Xxxxxxxx (each an
"Executive" and, collectively, the "Executives") are employed by, and receive
compensation and benefits from, Holdings;
WHEREAS, Holdings provides the services of the Executives to the Company to
manage the Business and provides other management and advisory services to the
Company (collectively, the "Management Services") and the Company desires to
provide for the continuation of said Management Services and to set forth the
terms and conditions applicable to such Management Services;
WHEREAS, the Company has engaged Xxxxxx Human Resource Consulting, Inc. to
prepare, and the Company has received, an analysis of the compensation levels of
chief executive officers, chief financial officers and general counsels of
publicly held corporations of a size and engaging in a business comparable to
the Company and the Business; and
WHEREAS, the Company has accrued for a management services fee of
$1,500,000 on its financial statements, which have been reviewed by Ernst &
Young LLP as the independent auditors of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Term. This Agreement shall be effective on the date set forth above
and shall terminate on December 31, 2005 (the "Initial Term"), provided,
however, that at the end of the Term of Agreement (as defined below) the term of
this Agreement shall be automatically extended for successive one (1) year
periods (each, a "Renewal Period") unless either Holdings or the Company shall
have given written notice to the other party at least ninety (90) days prior to
the end of the Term of Agreement (as defined below), that the Term of Agreement
shall not be so extended. The Initial Term together with
each Renewal Period, if any, are collectively referred to herein as the "Term of
Agreement".
2. Services. During the period from January 1, 2003 until the end of
the Term of Agreement (the "Service Period"), Holdings shall provide Management
Services to the Company in accordance with the terms and subject to the
conditions set forth in this Agreement. During the Service Period, the Company
shall cause Messrs. Xxxxxx Xxxxxx, Xxxx Xxxxxxx, and Xxxxx Xxxxxxxx, to serve
as, respectively, the Chief Executive Officer, Chief Financial Officer and
General Counsel of the Company. During the Service Period, Holdings shall use
its best efforts to cause the Executives to perform such duties and have such
powers as are customary for the chief executive officer, chief financial officer
and general counsel, as applicable, of publicly held corporations of a size and
engaging in a business comparable to the Company and the Business. In the event
that any of the Executives ceases to be employed by Holdings, Holdings shall
offer to provide the Company with the services of such Executive's successor at
Holdings for the remainder of the Service Period. Any successor who provides
services to the Company pursuant to the preceding sentence shall be deemed an
Executive for purposes of this Agreement. In the event that the Company rejects
Holdings' offer to provide the services of an Executive's successor, Holdings'
obligation to provide the services of such Executive shall cease and the
management services fee set forth in Section 3 of this Agreement shall be
adjusted accordingly.
3. Management Services Fee. In consideration of the provision by
Holdings of the Management Services to the Company, the Company shall, at or
before the end of each calendar year during the Service Period, pay Holdings a
management services fee of $1,500,000, in a single lump sum cash payment.
4. Executives Remain Employees of Holdings. Notwithstanding anything
contained in this Agreement, the Executives shall remain exclusively employees
of Holdings for all purposes during the Service Period. Nothing contained in
this Agreement shall limit Holdings' rights and obligations with respect to the
Executives or limit Holdings' right to assign additional duties to the
Executives, provided that such duties do not interfere with Holdings'
obligations set forth in Section 2 of this Agreement.
5. Right to Engage in Other Activities. Nothing contained herein shall
restrict Holdings or any of its affiliates, or any of their respective
equityholders, directors, officers, employees, agents and controlling persons
and any of their respective affiliates, from engaging in any other business or
devoting time and attention to the management, investment, involvement or other
aspects of any other business, including becoming an officer or director
thereof, or rendering services of any kind to any other corporation, firm,
individual or business.
6. Indemnification. The Company shall (i) indemnify and hold harmless
Holdings and each Executive (collectively, the "Indemnified Parties"), to the
fullest extent permitted by law, from and against any and all losses, claims,
damages and liabilities, joint or several, to which any Indemnified Party may
become subject, caused by, related to or arising out of this Agreement, the
Management Services or any other
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advice or services contemplated by this Agreement or the engagement of Holdings
pursuant to, and the performance by any Indemnified Party of the Management
Services contemplated by, this Agreement and (ii) promptly reimburse each
Indemnified Party for all costs and expenses (including reasonable attorney's
fees and expenses), as incurred, in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or brought by
or on behalf of the Company and whether or not resulting in any liability.
Notwithstanding the preceding sentence, the Company shall not be liable to an
Indemnified Party pursuant to this Section 6 to the extent that such loss,
claim, damage, liability, cost or expense is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's willful misconduct, gross negligence or fraud.
7. Limited Liability. The Company agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract or tort, or
otherwise) to the Company related to or arising out of this Agreement, the
Management Services or any other advice or services contemplated by this
Agreement or the engagement of Holdings pursuant to, and the performance by any
Indemnified Party of the Management Services contemplated by, this Agreement,
except to the extent that any loss, claim, damage, liability, cost or expense is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's willful misconduct, gross negligence
or fraud.
8. Assignment/Successors. Subject to Section 2 of this Agreement,
neither party may assign this Agreement without the prior written consent of the
other party. Notwithstanding the foregoing, this Agreement shall be binding on
any successor to either of the parties hereto.
9. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not in any manner or way affect any other provision hereof,
and this Agreement shall be construed, if possible, as if amended to conform to
legal requirements, failing which it shall be construed as if any such offending
provision were omitted.
10. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the state of Delaware, without
giving effect to the conflicts of law principles thereof.
11. Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
12. Binding Nature. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors, heirs and
permitted assigns.
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13. Amendment. The provisions of this Agreement may not be amended
except by an instrument in writing signed by the parties hereto. No waiver of
any breach or provision of this Agreement by a party shall be deemed to be a
waiver of any other or subsequent breach or condition, whether of like or
different nature.
14. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original and both of which, when taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their representatives thereunto duly authorized on the date first
above written.
MACANDREWS & FORBES HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Executive Vice President and
General Counsel
M & F WORLDWIDE CORP.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Senior Vice President - Finance
