EXHIBIT 10.8
AMENDED AND RESTATED
AGREEMENT FOR MANAGEMENT ADVISORY,
STRATEGIC PLANNING AND
CONSULTING SERVICES
THIS AGREEMENT (the "Agreement") is made effective as of the __th day
of June, 2003 (the "Effective Date"), by and between Investcorp International
Inc., a Delaware corporation ("III"), and Xxxxxx Holding Co. (DE), Inc., a
Delaware corporation ("Xxxxxx").
WHEREAS, this III and Xxxxxx are parties to an Agreement for Management
Advisory Services, dated as of November 25, 2002 (the "2002 Agreement"),
pursuant to which Xxxxxx has paid to III a consulting service fee of $1,500,000
for services provided from November 25, 2002 to November 24, 2003; and
WHEREAS III and Xxxxxx desire to amend and restate the 2002 Agreement.
NOW, THEREFORE, the parties do hereby agree as follows:
1. Appointment. Xxxxxx hereby reconfirms its appointment of III
to render management advisory, strategic planning and consulting services to
Xxxxxx pursuant to the 2002 Agreement as amended hereby through November 24,
2007 (the period of November 25, 2002 through November 24, 2007 is referred to
herein as the "Term").
2. III. During the Term, III shall render to Xxxxxx, by and
through such of its officers, employees, agents and affiliates as III, in its
sole discretion, shall designate from time to time, management advisory,
strategic planning and consulting services. Such services shall consist of
advice concerning management, finance, marketing, strategic planning, and such
other services as shall be requested from time to time by the Board of Directors
of Xxxxxx. Xxxxxx acknowledges and agrees that the services to be provided by
III hereunder do not encompass services that would be required in connection
with an acquisition, joint venture, restructuring or initial public offering by
Xxxxxx, or a private sale of the stock or assets of Xxxxxx. Should Xxxxxx desire
to engage III to provide financial advisory services in connection with any such
type of transaction, such engagement shall be subject to the negotiation of
mutually acceptable fee arrangements for such additional services, albeit the
indemnification obligations of Xxxxxx as set forth in paragraph 7 of this
Agreement shall apply to any such additional services performed by III.
3. Fees.
3.1 Services Fee. In consideration of III's performance
of the above-described services, Xxxxxx has paid to III consulting services fees
of $1,500,000, in cash, for the 12 months ending November 25, 2003 and, shall
pay to III, in cash, consulting services fees at a rate of $1,000,000 per
12-month period for each subsequent 12-month period for the remainder of the
Term (collectively, the "Services Fee"). It is recognized that the services
provided under this Agreement will not be evenly distributed over time. It is
also recognized that, subject to the terms of this Agreement, Xxxxxx is
committed to pay the full amount payable hereunder, and the
Fee, once paid, is non-refundable. The full amount of the Fee for each remaining
year of the Term shall be paid on the first business day of such year.
3.2 Structuring Fee. In connection with the services
provided to the Company in connection with the transactions contemplated by, and
pursuant to the terms of, that certain Recapitalization and Purchase Agreement,
dated as of May 7, 2003 (the "Recapitalization Agreement"), by and among Xxxxxx
Holding Co. (PA), Inc., a Pennsylvania corporation, Green Equity Investors III,
L.P., a Delaware limited partnership, and the shareholders party thereto, the
Company agrees to pay to III a structuring fee of $1,000,000 and reasonable
out-of-pocket expenses incurred by the III in connection with the services
provided in connection with the transactions contemplated by the
Recapitalization Agreement, which fee and expenses shall be paid to the III on
the date of this Agreement.
4. Reimbursements. Within 15 calendar days of delivery of III's
invoice, Xxxxxx shall reimburse III for its reasonable out-of-pocket expenses
incurred in connection with the performance of services pursuant to this
Agreement.
5. Termination. This shall terminate on the earlier of (i)
November 24, 2007, (ii) such time as Investcorp Investors (as defined in the
Amended and Restated Shareholders' Agreement dated as of June 11, 2003 (the
"Shareholders' Agreement")) cease to own at least 50% of the aggregate equity
position in the Company owned by the Investcorp Investors as of immediately
after the closing of the Recapitalization (as defined in the Shareholders'
Agreement), or (iii) a Qualified IPO (as such term is defined in the Statement
of Rights of the Series A Preferred Stock). Notwithstanding any other provision
hereof, the obligations of Xxxxxx to pay amounts due with respect to periods
prior to the termination hereof pursuant to paragraph 3 hereof and the
provisions of paragraphs 7 and 8 hereof shall survive any termination of this
Agreement.
6. Default. In the event that Xxxxxx fails to pay any part of the
Fee as set forth in Paragraph 3 above when and as due, and Xxxxxx does not cure
such failure prior to the 10th day of the month following the month in which
such payment is due, then Xxxxxx shall be in default under this Agreement and
III shall be entitled to receive payment in full of the unpaid portion of the
Fee upon making written demand upon Xxxxxx for such payment. Upon delivery of
such written demand, III shall be excused from rendering any further services
pursuant to this Agreement. The aforesaid right and privilege of III to withhold
services is intended to be in addition to any and all other remedies available
because of Xxxxxx'x default, including III's right to payment of all fees set
forth herein. Further, in the event of a default by Xxxxxx, Xxxxxx agrees to
reimburse III for any and all costs and expenses incurred by III, including,
without limitation, reasonable counsel fees and expenses, in connection with
such default and any litigation or other proceedings instituted for the
collection of payments due hereunder.
7. Decisions/Authority of Advisor.
7.1 Limitation on III's Liability. Xxxxxx reserves the
right to make all decisions with regard to any matter upon which III has
rendered its advice and consultation, and there shall be no liability of III for
any such advice accepted by Xxxxxx pursuant to the provisions of this Agreement.
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7.2 Independent Contractor. III shall act solely as an
independent contractor and shall have complete charge of its personnel engaged
in the performance of services under this Agreement. As an independent
contractor, III shall have authority only to act as an advisor to Xxxxxx and
shall have no authority to enter into any agreement or to make any
representation, commitment or warranty binding upon Xxxxxx or to obtain or incur
any right, obligation or liability on behalf of Xxxxxx. Nothing herein shall
constitute III or any of its affiliates a partner of or joint venturer with
Xxxxxx. Nothing herein shall in any way preclude III from engaging in any
business activities or from performing services for its own account or for the
account of others.
8. Indemnification.
8.1 Indemnification/Reimbursement of Expenses. Xxxxxx
shall (i) indemnify III and its officers, employees, agents and affiliates (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 services under this Agreement or any other advice or services contemplated by
this Agreement or the engagement of III pursuant to, and the performance by the
III of the services contemplated by, this Agreement, and (ii) promptly reimburse
each Indemnified Party for all costs and expenses (including reasonable and
documented attorneys' 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 Xxxxxx and whether or not resulting in
any liability.
8.2 Limited Liability. Xxxxxx shall not be liable under
the indemnification contained in Section 8.1 hereof 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 III's willful misconduct or gross negligence. Xxxxxx further agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to Xxxxxx, holders of its securities or its
creditors related to or arising out of the engagement of III pursuant to, or the
performance by III of the services contemplated by, this Agreement.
9. Amendments. No amendment or waiver of any provision of this
Agreement, or consent to any departure by either party from any such provision,
shall in any event be effective unless the same shall be in writing and signed
by the parties to this Agreement and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
10. Notices. 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:
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If to III, to:
Investcorp International Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: E. Xxxxxxx Xxxxxxx, Esq.
If to Xxxxxx, to:
Xxxxxx Holding Co. (DE), Inc.
00 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
11. Entire Agreement. 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.
12. Assignment. This Agreement shall be assignable by either party
hereto provided that the non-assigning party consents in writing to such
assignment.
13. Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of New York (without regard to the conflicts of laws
provisions thereof or of any other jurisdiction) and shall inure to the benefit
of, and be binding upon, III and Xxxxxx and their respective successors and
assigns.
14. No Continuing Waiver. The waiver by any party of any breach of
this Agreement shall not operate or be construed to be a waiver of any
subsequent breach.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
16. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York as applied to
contracts made and performed within the State of New York without regard to
principles of conflict of laws.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement for
Management Advisory, Strategic Planning and Consulting Services to be executed
and delivered by its duly authorized officer or agent as set forth below.
INVESTCORP INTERNATIONAL INC.
By: _____________________________
Name:
Title:
Date:
XXXXXX HOLDING CO. (DE), INC.
By: _____________________________
Name:
Title:
Date:
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