EXHIBIT 10.35
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
AMENDED AND RESTATED MANAGEMENT AGREEMENT, dated as of April 30,
1999, between XXXXXX ASSOCIATES INC., a Delaware corporation ("Manager"), and
THE GENERAL CHEMICAL GROUP INC., a Delaware corporation (the "Company").
RECITALS
A. Manager and the Company are parties to a certain Management
Agreement, effective as of June 1, 1995 (as amended, the "Existing Management
Agreement"), pursuant to which the Manager has provided certain management
services and other services and advice to the Company and its subsidiaries.
B. The Company is separating certain of its businesses through a
spinoff of its subsidiary, GenTek Inc., to shareholders of the Company. After
such spinoff, GenTek Inc. will be a separate company.
C. The Company and Manager desire to modify the Existing Management
Agreement to reflect certain changes in their arrangements resulting from the
spinoff of GenTek Inc. Therefore, Manager and the Company desire to amend and
restate the Existing Management Agreement.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. Services of Manager. Subject to the terms and conditions of this
Agreement, Manager will provide the following services (collectively, the
"Services") to the Company:
(a) provide strategic management, business and financial
advisory services to the Company and its subsidiaries with respect to,
among other matters, the industrial chemicals business conducted by the
Company including strategic guidance and advice with respect to tax
employee benefits, insurance and risk management matters; and
(b) provide such other corporate services of such nature and
scope as the Company and Manager may reasonably agree upon from time to
time.
In addition to the services of its own staff, Manager shall select
and, with the consent of the Company, engage on behalf of the Company the
services of other professionals and consultants in connection with the provision
of the services set forth above, including management consultants, bankers,
investment bankers, underwriters, accountants, actuaries, insurance brokers, tax
advisors, appraisers, risk management consultants and employee benefits
consultants and attorneys.
Manager may also obtain, on its own behalf, the services of
individuals and entities in connection with its provision of the Services, and
such third-party services shall be deemed to be provided by the Manager for
purposes of this Agreement.
2. Limitations on Manager's Authority. Manager will not be authorized
to manage the affairs of, act in the name of, direct the actions of employees of
or in any way bind the Company or any of its subsidiaries (unless otherwise
authorized in writing by the Company to do so). The management, policies and
operations of the Company and its subsidiaries will be the responsibility of the
directors and officers of the Company and its subsidiaries acting pursuant to
and in accordance with the relevant corporate charter and by-laws, and all
decisions relating to corporate matters will be made by the directors and
officers of the Company and its subsidiaries acting pursuant to and in
accordance with the relevant corporate charter and by-laws.
3. Independent Contractor Status. Manager will render and perform the
services under this Agreement as an independent contractor in accordance with
its own standards, subject to its compliance with the provisions of this
Agreement and with all applicable laws, ordinances and regulations.
4. Availability of Employees. Manager will make available to the
Company the services of such of its employees and consultants as are necessary,
in the reasonable judgment of the Manager, to the performance from time to time
of the Services, provided that the inability of the Manager to make available to
the Company a specific employee or consultant of the Manager for any reason,
including without limitation the death or disability of such employee or
consultant, the termination of an employment or consulting agreement with any
such person or the assignment of such employee or consultant to other duties,
shall not constitute a default hereunder.
5. Limited Liability of Manager. (a) Neither Manager nor any
director, officer, stockholder, employee or agent of Manager makes any express
or implied representation, warranty, or guarantee to the Company, to any of its
subsidiaries, to any of its stockholders or to any third party relating to the
services to be performed by Manager pursuant to this Agreement or the quality or
results of such services.
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(b) Manager shall not be liable to the Company, to any of its
subsidiaries, to any of its stockholders or to any third party for any expense,
claim, loss or damage, including, without limitations indirect, special,
consequential or exemplary damages suffered other than by reason of Manager's
intentional failure to perform the services to be performed by Manager pursuant
to this Agreement, or by reason of action taken by Manager which was in bad
faith and in a manner not reasonably believed by Manager to be in the best
interests of the Company.
(c) Manager shall not be liable to the Company, to any of its
subsidiaries, to any of its stockholders or to any third party for the
consequences of any failure to perform or delay in performing any of its
obligations under this Agreement if that failure shall be caused by events or
circumstances beyond its control including, without limitation, by strikes or
labor disputes; provided that Manager shall reasonably provide prompt notice to
the Company or its subsidiaries of such inability and the reasons therefor.
6. Indemnification. The Company will indemnify Manager and each
director, officer, stockholder, employee and agent of Manager against any
losses, claims, damages or liabilities (including legal or other expenses
reasonably incurred in investigating or defending against any such losses,
claims, damages or liabilities), joint or several ("Liabilities"), to which any
of such persons may become subject by reason of such person's being a director,
officer, stockholder, employee or agent of Manager (but only to the extent that
such Liabilities arise out of or relate to and with respect to Services);
provided that the party to be indemnified acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Company may pay expenses (including attorneys' fees) incurred by
Manager and any director, officer, stockholder, employee and agent of Manager in
defending any civil, criminal, administrative or investigative action, suit or
proceedings, in advance of the final disposition of such action, suit or
proceeding, upon receipt of an undertaking by or on behalf of a party which may
be entitled to indemnification to repay such amount if it shall be ultimately
determined that he is not entitled to be indemnified by the Company as
authorized in this Agreement.
7. Fee for Services; Expenses. Commencing on the effective date and
throughout the term hereof, the Company will pay to Manager a fixed fee for its
services under Section 1(a) hereof, payable quarterly, of $378,550 per quarter
(the "Management Fee"). Such Management Fee will be due and payable quarterly in
advance by the Company on the first business day of each calendar quarter during
the period in which Services are being provided. The Management Fee shall be
increased each year on the
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anniversary date of this Agreement by the rate of increase in the Consumer Price
Index for such year over the Consumer Price Index for the prior year. For
purposes of this Agreement, the "Consumer Price Index" means the Consumer Price
Index for the Boston Standard Metropolitan Statistical Area (All Items for Urban
Wage Earners and Clerical Workers), seasonally adjusted, as published by the
United States Department of Labor, Bureau of Labor Statistics, or a mutually
agreeable index if such index is no longer published or the method of
computation thereof is substantially modified.
In addition to the Management Fee referred to above, the Company will
pay or reimburse Manager for all out-of-pocket costs and expenses incurred in
fulfilling its obligations as they relate to the Company under this Agreement,
including any expenses of third parties engaged by Manager; provided that
Manager will not be entitled to reimbursement for compensation of its officers,
directors, employees, consultants or stockholders who provide services under
this Agreement.
In addition to the Management Fee, the Company will pay the Manager
fees and expenses in connection with all acquisitions, divestitures, joint
ventures, business combinations, investment and other transactions entered into
by the Company other than in the ordinary course of its business, in an amount
and on terms that are customarily received by nationally recognized investment
banking firms in similar transactions, as determined by the independent members
of the Company's Board of Directors.
8. Other Relationships. Nothing contained in this Agreement will, or
will be deemed to, prohibit, restrict or limit in any manner any business or
investment activities of Manager or the directors. officers, employees or
affiliates of Manager.
9. Assignment. This Agreement and all the provisions of it will be
binding on and inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests and obligations under this Agreement may be assigned by
either party without the prior written consent of the other party to this
Agreement, which consent shall not be unreasonably withheld; provided however
that this Agreement may be assigned without the prior consent of the Company to
any person or entity that is an affiliate (as defined in the Securities Exchange
Act of 1934) of Xxxx X. Xxxxxxxx. Nothing in this Agreement, whether expressed
or implied, may be construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy or claim under or in respect of
this Agreement.
10. Term; Effect of Termination. (a) This Agreement will be effective
on the date first written above and will continue for a term ending on December
31, 2004 (the "Term").
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(b) This Agreement may be terminated, at any time prior to the end of
the Term of this Agreement, as follows: (i) by mutual written consent of the
parties; (ii) by the Company, pursuant to written notice by the Company to
Manager, if Xxxx X. Xxxxxxxx ceases to hold, directly or indirectly, shares of
the Company's capital stock constituting at least 20 percent of the aggregate
voting power of the Company's capital stock; or (iii) by the Company or the
Manager, if the non-terminating party ceases, or threatens to cease, to carry on
its business, or commits a material breach of this Agreement, and such breach is
not remedied within thirty (30) days after written notice of such breach.
(c) At the end of the Term of this Agreement, or in the event the
parties agree to an earlier termination of this Agreement (in each case the
"Termination Date"), each party will perform its obligations under this
Agreement accrued to the Termination Date, and the Company (i) will assume, pay
and honor all obligations to third parties engaged by Manager in connection with
its Services hereunder and (ii) will promptly pay Manager all accrued fees and
expenses and honor all indemnification obligations arising hereunder. On
termination, Manager will return to the Company any corporate records of the
Company and its subsidiaries.
11. Alternate Dispute Resolution/Arbitration
(a) Dispute Resolution. Any claim, dispute, difference or controversy
between the parties hereto arising out of, or relative to, this Agreement which
cannot be settled by reference to other terms of this Agreement or by mutual
understanding between the parties shall be submitted to alternative dispute
resolution as described in this Section 11.
(b) Pre-Arbitration Referral to Representatives.
(i) The dispute, claim or controversy arising out of or in relation
to this Agreement or the interpretation or breach thereof shall be resolved in
accordance with this Section 11, being subjected first to the procedure in this
subsection (b) then, if still unresolved, to binding arbitration in accordance
with subsection (c) below. Any party may cause a proceeding to be commenced by
giving written notice to the other party that it desires to do so (the date of
such notice is hereinafter referred to as the "Notice Date"). Each party shall
thereupon prepare a written statement (the "Statement") briefly describing such
party's position on the matter in dispute. For purposes hereof, the Company
designates its President and Chief Executive Officer and Manager designates Xxxx
X. Xxxxxxxx (collectively, the "Representatives") as the individuals who shall
represent such parties. The Statement shall be prepared within fifteen (15) days
of the Notice Date and given to all parties.
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(ii) The Representatives shall, during the fifteen (15) day period
commencing on the fifteenth day after the Notice Date, meet and negotiate in
good faith in an attempt to resolve the matter in dispute. If such attempt
proves unsuccessful in the judgment of any party, such party may cause all
parties involved to pursue the procedure set forth below by delivering written
notice to them of such party's desire to do so within five (5) days after the
end of such negotiation period.
(c) Arbitration. Any dispute arising out of or relating to this
Agreement or the breach, termination or validity hereof which are not resolved
by the foregoing procedure shall be finally settled by arbitration conducted
expeditiously in accordance with the Center for Public Resources Rules for
Nonadministered Arbitration of Business Disputes (the "CPR Rules"). The Center
for Public Resources shall appoint a neutral advisor from its National CPR
Panel. The arbitration shall be governed by the United States Arbitration Act, 9
U.S.C. 'SS''SS'1-16, and judgment upon the award rendered by the arbitrators may
be entered by any court having jurisdiction thereof. The place of arbitration
shall be Boston, Massachusetts.
Such proceedings shall be administered by the neutral advisor in
accordance with the CPR Rules as he/she deems appropriate; however, such
proceedings shall be guided by the following agreed upon procedures:
(i) mandatory exchange of all relevant documents, to be accomplished
within forty-five (45) days of the initiation of the procedure;
(ii) no other discovery;
(iii) hearings before the neutral advisor which shall consist of a
summary presentation by each side of not more than three hours, such
hearings to take place on one or two days at a maximum; and
(iv) decision to be tendered not more than ten (10) days following
such hearings.
Notwithstanding anything to the contrary contained herein, the
provisions of subsection (c) shall not apply with regard to any equitable
remedies to which any party may be entitled hereunder.
The parties hereto (i) hereby irrevocably submit to the jurisdiction
of the United States District Court for the District of New Hampshire, for the
purpose of enforcing the award or decision in any such proceeding and (ii)
hereby waive, and agree not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
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property is exempt or immune from attachment or execution, that the suit, action
or proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced in or by such court, and (iii) hereby waive and agree
not to seek any review by any court of any other jurisdiction which may be
called upon to grant an enforcement of the judgment of any such court. The
parties hereto hereby consent to service of process by registered mail at the
address to which notices are to be given. Each of the Company and Manager agrees
that its submission to jurisdiction and its consent to service of process by
mail is made for the express benefit of the other parties hereto. Final judgment
against the Company or Manager in any such action, suit or proceeding may be
enforced in other jurisdictions by suit, action or proceeding on the judgment,
or in any other manner provided by or pursuant to the laws of such other
jurisdiction; provided, however, that any party may at its option bring suit, or
institute other judicial proceedings, in any state or federal court of the
United States or of any country or place where the other parties or their
assets, may be found.
The losing party shall bear all of the expenses incurred by both
parties in connection with any arbitration, including legal and other expenses,
unless the neutral advisor determines that it is appropriate for the parties to
share all or any part of the expenses incurred in connection with the
arbitration and the legal and other expenses, provided that any costs incurred
by a party to enforce an award of the neutral advisor pursuant to the foregoing
terms of this subsection (c) shall be borne by the parry resisting enforcement.
12. Notices. All notices, requests, demands and other communications
provided for by this Agreement must be in writing and will be deemed to have
been given at the time when hand delivered or mailed in any general or branch
United States post office enclosed in a registered or certified post-paid
envelope, addressed to the following addresses of the parties to this Agreement
or to such changed address as such party may have given the other party notice
as provided in this Agreement:
The Company:
The General Chemical Group Inc.
Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attention: President
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Manager:
Xxxxxx Associates Inc.
Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attention: President
13. Miscellaneous. (a) This Agreement, or any term or provision of
it, may only be amended, modified or waived by an instrument in writing signed
by the party against whom such amendment, modification or waiver is sought to be
enforced.
(b) The provisions of this Agreement will be construed in accordance
with and governed by the laws of the State of Delaware.
(c) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
(d) This Agreement is complete, reflects the entire agreement of the
parties with respect to its subject matter, and supersedes all previous written
or oral negotiations, commitments or writings.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
XXXXXX ASSOCIATES INC.
By: /s/ Xxxx X. XxXxxxx
--------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President
THE GENERAL CHEMICAL GROUP INC.
By: /s/Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
