Exhibit 10.4
MANAGERIAL ASSISTANCE AGREEMENT
THIS AGREEMENT, made as of the day of , 1997 by and between
SPECIAL METALS CORPORATION, a Delaware corporation, having its principal office
in New Hartford, New York, United States of America (hereinafter referred to as
"SMC"), and Societe Industrielle de Materiaux Avances, a societe anonyme
organized under the law of the Republic of France, having its principal office
in Xxxxxxx Xxx Xxxxx, Xxxxxx (hereinafter referred to as "SIMA").
W I T N E S S E T H :
WHEREAS, SIMA and its affiliates possess managerial
information and knowledge relating to: (a) financial planning; (b) loan and
security agreements; (c) financial management; (d) business strategies and
planning; (e) business systems; (f) organizational planning; (g) insurance
matters; (h) equipment purchases; (i) utilization and procurement of raw
materials; (j) marketing; (k) sales programs; (l) distribution systems; and (m)
new market/product opportunities; and
WHEREAS, SMC desires to obtain managerial assistance from SIMA
to further develop its existing business and expand its business into new
products and markets and SIMA is willing to furnish such managerial assistance,
all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby mutually covenant and agree as follows:
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1. For purposes of this Agreement,
The term "Managerial Information" shall include
information pertaining to: (i) financial planning; (ii) loan
and security agreements; (iii) financial management; (iv)
business strategies and planning; (v) business systems; (vi)
organization planning; (vii) insurance matters; (viii)
equipment purchases; (ix) utilization and procurement of raw
materials; (x) marketing; (xi) sales programs; (xii)
distribution systems; and (xiii) new market/product
opportunities.
2. During the term of this Agreement, SIMA shall, to
the best of its ability, furnish Managerial Information as, may be needed and
requested by SMC, to further develop SMC's existing business and expand SMC's
business into new products and markets.
3. SIMA shall furnish Managerial Information to SMC in
the following manner:
(a) SIMA shall periodically provide managerial,
financial, manufacturing and sales people in the employ of
SIMA and/or its affiliates at the facilities of SMC to consult
with and advise SMC.
(b) SIMA shall regularly make managerial, financial,
manufacturing and sales people in the employ of SIMA and/or
its affiliates available for consultation with SMC by
telephone and/or written communication.
(c) SIMA shall permit, at the expense of SMC,
employees of SMC to visit the facilities and offices of SIMA
and/or its affiliates for the purpose of consulting with
managerial, financial, manufacturing and sales people of SIMA
and/or its affiliates.
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4. All Managerial Information of SIMA and its affiliates
furnished to or used by SMC shall be exclusive and solely for the benefit of
SMC and SMC shall keep such knowledge and information confidential. The
employees of SMC acquiring any such information shall be instructed to retain
the same as confidential and not to make disclosure thereof to any person or
persons, except to other employees of SMC and then only to the extent necessary
to make use thereof in SMC's operations; provided, however, that the foregoing
shall not apply to information which was in the possession of SMC at the time
of receipt from SIMA and/or its affiliates, information which is or becomes
available to the public from a source other than SMC and information SMC
receives from a third party having the right to make such disclosure and
without obligation of confidentiality on the part of SMC to such third party.
5. All Managerial Information which SMC may disclose to SIMA
and/or its affiliates during the course of discussions with SIMA and/or its
affiliates shall be deemed to have been furnished to assist SIMA and/or its
affiliates in providing managerial assistance to SMC and SIMA and its affiliates
shall keep such knowledge and information confidential. The employees and SIMA
and its affiliates acquiring any such information shall be instructed to retain
the same as confidential and not to make disclosure thereof to any person or
persons except to other employees of SIMA and/or its affiliates; provided,
however, that the foregoing shall not apply to information which was in the
possession of SIMA and/or its affiliates at the time of receipt from SMC,
information which is or becomes available to the public from a source other than
SIMA and/or its affiliates and information SIMA and/or its affiliates receives
from a third party having the right to make such disclosure and without any
obligation of confidentiality on the part of SIMA and/or its affiliates to such
third party.
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6. It is understood that SIMA does not assume any obligation
or responsibility for or with respect to the sufficiency of any information
furnished to or acquired by SMC to accomplish the desired results or the ability
of SMC to use the same.
7. In consideration of its agreement to provide services
hereunder, so long as this agreement is in effect, SMC shall pay to SIMA, a fee
of $30,000 per month. In addition, SMC shall reimburse SIMA for out of pocket
telecommunication charges, travel costs and subsistence while travelling, to the
extent such expenses are reasonable and for the benefit of SMC. Payment shall be
made by SMC within thirty (30) days following receipt and acceptance by SMC of
an invoice along with appropriate expense documents. All payments are to be free
of tax and charges of governments other than the government of France.
8. SIMA shall provide to SMC, within thirty (30) days after
the end of each month in which managerial assistance is given to SMC, a written
report fully detailing the said managerial assistance and, without limitation,
the assistance, advice and recommendations given and made.
9. The parties recognize that SIMA may be requested to provide
services beyond the scope or level previously provided by SIMA, whether in
connection with potential acquisitions, financings or other matters involving
SMC. In such event, SIMA shall be entitled to compensation in addition to the
monthly fee referred to in Paragraph 7, based on the time spent and other
relative factors, as SIMA and SMC shall mutually agree.
10. In the event of any inconsistency between the terms of
this Agreement and a Credit Agreement to which SMC is a party, the terms of the
Credit Agreement will prevail.
11. This Agreement shall remain in effect until terminated by
either party upon thirty (30) days' advance written notice to the other party.
The obligations of confidentiality set forth in Sections 4 and 5 shall survive
any such termination. Termination
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shall not affect SMC's right to continue to use Managerial Information obtained
from SIMA and/or its affiliates.
12. All notices and other communications (except for Section 8
reports and Section 9 invoices) required to be given under this Agreement shall
be in writing and shall be given or made by facsimile transmission, personal
delivery, or registered or certified mail postage prepaid, and addressed to the
intended recipient at the address below or such other address as shall be
designated by either party in a notice to the other party. Each notice delivered
in accordance with this Section shall be deemed effective (a) if personally
delivered on the date of such delivery, (b) if given by facsimile transmission,
on the date transmitted provided that an appropriate confirmation is received by
the sender, and (c) if given by registered or certified mail, seven days after
mailing.
To SMC: Special Metals Corporation
0000 Xxxxxx Xxxxxxxxxx Xxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx of America
Attention: Corporate Secretary
Telecopy: (000)000-0000
To SIMA: Societe Industrielle de Materiaux Avances
00 Xxx Xx Xxxxxxxx
Xxxxxxx Xxx Xxxxx
Xxxxxx
Attention: Xxxxxxx Xxxxx
Telecopy: 011-33-1 40882009
Section 8 reports shall be sent to the President and Controller of SMC.
13. This Agreement supersedes any and all other
Agreements, either oral or written, between the parties hereto with respect to
SIMA providing managerial assistance to SMC and contains all of the covenants
and agreements between the parties with respect
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to such. Any modification of this Agreement shall be effective only if it be in
writing, signed by the party sought to be charged.
14. This Agreement may not be assigned without the
express written consent of the other party.
15. This Agreement shall be governed by the laws of the
State of New York, United States of America.
16. This Agreement may be separately executed in
counterparts.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its proper representatives as of the day and
year first above written.
SOCIETE INDUSTRIELLE
DE MATERIAUX AVANCES
Attest By
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Title
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SPECIAL METALS CORPORATION
Attest By
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Title
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