EXHIBIT 10.3
MANAGEMENT AGREEMENT
AGREEMENT made as of February 5, 2001 by and between PMD GROUP INC., a
Delaware corporation (the "Corporation"), and AEA INVESTORS INC., a Delaware
corporation ("AEA").
WHEREAS, AEA rendered certain investment banking services to the
Corporation since the date of the Agreement for Sale and Purchase of Assets,
dated November 28, 2000, by and between The X.X. Xxxxxxxx Company and PMD Group
Inc.;
WHEREAS, AEA also renders advisory services to selected client companies,
and the Corporation desires to retain AEA to render advisory and consulting
services to it and AEA is willing to provide such services on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
1. The Corporation hereby retains AEA to render advisory and consulting
services to the Corporation, and AEA hereby agrees to render such services, for
the period commencing on November 28, 2000 and continuing for so long as is
provided in the Stockholders Agreement, dated as of November 28, 2000, by and
among PMD Group Holdings Inc., PMD Investors I LLC, PMD Investors II LLC, DLJMB
Funding III, Inc. and DB Capital/PMD Investors LLC (the "Stockholders
Agreement"). AEA shall render such advisory and consulting services to the
Corporation in connection with such financial, management and other matters
relating to the business and operations of the Corporation or any of its
subsidiaries or affiliated companies, as the Corporation's Board of Directors
may from time to time request, in each case consistent with the Stockholders
Agreement.
2. As compensation for AEA's advisory and consulting services rendered
pursuant to Section 1 hereof, the Corporation will pay, and AEA will accept, so
long as this Agreement
continues in effect and so long as payments of interest and principal are being
paid on a current basis on the Corporation's senior subordinated notes, a fee of
$1,925,000 payable per annum quarterly in advance, on the first day of each
calendar quarter, commencing as of April 1, 2001. If at any time the Corporation
is not current with respect to payments of interest and principal on its senior
subordinated notes, no fee shall be currently payable; rather, such fees shall
accrue until such time as the Corporation is current on such interest and
principal payments, at which time all accrued and unpaid fees hereunder shall be
paid by the Corporation. The Corporation also agrees to the provisions with
respect to indemnifying AEA and the other matters set forth in Annex A hereto,
which is incorporated by reference into this Agreement (the "Indemnification
Agreement").
It is the understanding of the parties that AEA may be involved with
potential acquisitions, mergers, financings or other major transactions
involving the Corporation, in which case AEA shall be entitled to such
compensation, in addition to the fee provided above, as the Corporation and AEA
shall mutually agree, in each case consistent with the Stockholders Agreement.
In addition to the aforementioned fees, the Corporation shall reimburse
AEA for its reasonable out-of-pocket costs and expenses incurred in connection
with the performance of its advisory and consulting services hereunder.
No advice rendered by AEA in its advisory role hereunder, whether formal
or informal, may be disclosed, in whole or in part, or summarized, excerpted
from or otherwise referred to without AEA's prior written consent. In addition,
AEA's role under this Agreement may not be otherwise referred to without its
prior consent.
3. Any notice required to be given hereunder shall be in writing and shall
be
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deemed sufficient if delivered in person or mailed by certified mail as follows:
if to the Corporation, to it at its office at PMD Group Inc., 0000 Xxxxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxx 00000 or such other address as the Corporation may
hereafter designate for that purpose; and if to AEA, to it at its office at Park
Avenue Tower, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
address as AEA may hereafter designate for that purpose.
4. In connection with this engagement, AEA and/or its affiliates will be
acting as independent contractors and not in any other capacity, with duties
owing solely to the Corporation.
5. This Agreement, together with the Indemnification Agreement and the
Stockholders Agreement, constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, both written and oral, with
respect to the subject matter hereof. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, including any corporation into which the Corporation shall consolidate
or merge or to which it shall transfer substantially all of its assets. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such state.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date and year first above written.
PMD GROUP INC.
By:
-----------------------------------
Name:
Title:
AEA INVESTORS INC.
By:
-----------------------------------
Name:
Title:
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ANNEX A - INDEMNIFICATION AGREEMENT
As part of the consideration for the agreement of AEA to furnish its
services under this Agreement, the Corporation hereby agrees to indemnify and
hold harmless AEA and its affiliates and the respective managing directors,
officers, directors, investors, shareholders, members, partners, employees and
agents of, and persons controlling, AEA or any of its affiliates within the
meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Act of 1934, as amended, and each of their
respective successors and assigns (collectively, the "INDEMNIFIED PERSONS") from
and against all claims, liabilities, expenses, losses or damages (or actions in
respect thereof) related to or arising out of actions taken (or omitted to be
taken) by AEA pursuant to the terms of this Agreement, or AEA's role in
connection therewith; PROVIDED, HOWEVER, that the Corporation shall not be
responsible for any claims, liabilities, expenses, losses and damages to the
extent that it is finally judicially determined that they result primarily from
actions taken or omitted to be taken by AEA in bad faith or due to AEA's gross
negligence or willful misconduct. If for any reason (other than the bad faith,
gross negligence or willful misconduct of AEA as provided above) the foregoing
indemnity is unavailable to the indemnified persons or insufficient to hold the
indemnified persons harmless, then the Corporation shall contribute to the
amount paid or payable by the indemnified persons as a result of such claim,
liability, expense, loss or damage in such proportion as is appropriate to
reflect not only the relative benefits received by the Corporation on the one
hand and AEA on the other, but also the relative fault of the Corporation and
AEA, as well as any relevant equitable considerations, subject to the limitation
that in any event AEA's aggregate contribution to all claims, expenses, losses,
liabilities and damages shall not exceed the amount of fees actually received by
AEA pursuant to this Agreement. Promptly after receipt by AEA of notice of any
complaint or the commencement of any action or proceeding with respect to which
indemnification may be sought against the Corporation, AEA will notify the
Corporation in writing of the receipt or commencement thereof, but failure to
notify the Corporation will relieve the Corporation from any liability which it
may have hereunder only if, and to the extent that, such failure results in the
forfeiture of substantial rights and defenses, and will not in any event relieve
the Corporation from any other obligation to any indemnified person other than
under this Indemnification Agreement. The Corporation shall assume the defense
of such action (including payment of fees and disbursements of counsel) insofar
as such action shall relate to any alleged liability in respect of which
indemnity may be sought against the Corporation. AEA shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and disbursements of such counsel shall be at the expense
of AEA unless employment of such counsel has been specifically authorized by the
Chief Executive Officer of the Corporation in writing. The Corporation shall pay
the fees and expenses of one separate counsel for AEA and any other indemnified
persons if the named parties to any such action (including any impleaded
parties) include the Corporation (or any of the directors of the Corporation)
and AEA and (i) in the good faith judgment of AEA the use of joint counsel would
present such counsel with an actual or potential conflict of interest or (ii)
AEA shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Corporation (or the director(s)). The Corporation will not,
without AEA's prior written consent, settle, compromise, consent to the entry of
any judgment in or otherwise seek to terminate any action, claim, suit,
investigation or proceeding in respect
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of which indemnification may be sought hereunder (whether or not any Indemnified
Person is a party thereto) unless such settlement, compromise, consent or
termination includes a release of each Indemnified Person from any liabilities
arising out of such action, claim, suit, investigation or proceeding. The
Corporation shall not be liable to indemnify any person for any settlement of
any claim or action effected without written consent of the Chief Executive
Officer of the Corporation, which consent shall not be unreasonably withheld. In
addition, the Corporation hereby agrees to reimburse AEA and each other
indemnified person for all expenses (including reasonable fees and disbursements
of counsel if the Corporation does not assume the defense of such action) as
they are incurred by AEA, or any indemnified person in connection with
investigating, preparing or defending any such action or claim. AEA shall have
no liability to the Corporation or any other person in connection with the
services which they render pursuant to this Agreement, except for AEA's bad
faith, gross negligence or willful misconduct judicially determined as
aforesaid. The indemnification, contribution and expense reimbursement
obligation the Corporation has under this paragraph shall be in addition to any
liability the Corporation may otherwise have. ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION OR PROCEEDING ARISING IN CONNECTION WITH OR AS A RESULT OF
EITHER AEA'S ENGAGEMENT OR ANY MATTER REFERRED TO IN THIS AGREEMENT IS HEREBY
WAIVED BY THE PARTIES HERETO. THE PROVISIONS OF THIS ANNEX A SHALL SURVIVE ANY
TERMINATION OR COMPLETION OF THE ENGAGEMENT PROVIDED BY THIS AGREEMENT.
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