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Exhibit 10.15
Professional Services Agreement
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EXECUTION COPY
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of March 16, 2001, by and
among JHW III Management Co., LLC and Xxxxx Associates, LLC (collectively, the
"Consultants") and TBM Holdings Inc., a Florida corporation (the "Company").
WHEREAS, the Company desires to receive financial and management
consulting services from the Consultants, and obtain the benefit of the
experience of the Consultants in business and financial management generally and
their knowledge of the Company's business and financial affairs in particular;
and
WHEREAS, the Consultants desire to provide financial and
management consulting services to the Company and the compensation arrangements
set forth in this Agreement are designed to compensate the Consultants for such
services.
NOW, THEREFORE, in consideration of the foregoing premises and
the respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, the Consultants and the Company hereby agree as follows:
1. Engagement. The Company hereby engages each of the
Consultants as a financial and management consultant, and each of the
Consultants hereby agrees to provide financial and management consulting
services to the Company, all on the terms and subject to the conditions set
forth below.
2. Services of the Consultants. Each of the Consultants
hereby agrees during the term of this engagement to consult with the Company's
board of directors (the "Board") and management of the Company and its
subsidiaries in such manner and on such business and financial matters as may be
reasonably requested from time to time by the Board or such management,
including but not limited to:
(a) corporate strategy;
(b) budgeting and forecasts;
(c) budgeting of future corporate investments;
(d) acquisition and divestiture strategies; and
(e) debt and equity financings.
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3. Personnel. Each of the Consultants and the Board shall
provide and devote to the performance of this Agreement such partners, members,
employees and agents of the Consultants and for such time as the Consultants
shall deem appropriate for the furnishing of the services required thereby.
4. Investment Fee. At the time of any merger,
consolidation, reorganization, recapitalization, restructuring, leveraged
buyout, business combination or other transaction of the Company or any of its
subsidiaries (collectively, an "Organic Transaction"), debt or equity financing
or refinancing (collectively, a "Financing") of the Company or any of its
subsidiaries, the Company shall collectively pay to the Consultants an
investment fee (the "Investment Fee") in immediately available funds in an
aggregate amount equal to one percent (1%) of (i) the enterprise value in the
case of an Organic Transaction or (ii) the face amount of any Financing (which
shall include all committed amounts) paid or payable to one or more of the
Company or any of its subsidiaries in the case of a Financing, in each case, up
to a maximum of $600,000 per transaction. At the discretion of the Company's
Board of Directors, the amount of the Investment Fee may be increased on a
transaction by transaction basis if the Consultants provide extraordinary
service or value. If this Agreement is terminated pursuant to the terms hereof,
the Consultants shall be entitled to a Investment Fee for all transactions
consummated prior to termination and all transactions initiated prior to
termination and completed within 24 months following the termination of this
Agreement.
5. Management Fee. In respect of the services to be
provided hereunder, the Company shall collectively pay to the Consultants an
aggregate annual fee of $150,000 (the "Management Fee") payable in cash,
quarterly in arrears beginning on January 1, 2002. The fee shall be deemed to
begin to accrue as of February 1, 2001. The Company's obligation to pay the
Management Fee shall terminate following the consummation of a Qualified Public
Offering. For purposes of this Agreement, "Qualified Public Offering" shall mean
the underwritten public offering by the Company or any of its subsidiaries of
its common stock pursuant to a registration statement (other than a registration
statement relating solely to an employee benefit plan or transaction covered by
Rule 145 of the Securities Act of 1933, as amended (the "Securities Act")) that
has been filed under the Securities Act and declared effective by the Commission
in which the Company or any of its subsidiaries receives at least $20,000,000 of
net cash proceeds with a per share price equal to 3 multiplied by the per share
Liquidation Preference (as defined in the Articles of Amendment of the 10%
Series B Cumulative Convertible Preferred Stock and 10% Series C Cumulative
Redeemable Preferred Stock of the Company) (subject to appropriate adjustments
for any dividends, subdivisions, combinations or reclassifications of the common
stock); provided, however, that for this purpose any offering under Rule 144A
under the Securities Act or any similar rule or regulation promulgated under the
Securities Act shall not be deemed to be a Qualified Public Offering.
6. Payment of Fees. Unless otherwise agreed by the
Consultants and unless the Company is jointly notified by the Consultants, all
fees payable hereunder by the Company to the Consultants shall be payable
one-half to JHW III Management Co., LLC and one-half to Xxxxx Associates, LLC.
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7. Expenses. The Company promptly shall reimburse the
Consultants for such reasonable travel expenses and other out-of-pocket fees and
expenses as have been or may be incurred by the Consultants, its directors,
officers and employees in connection with the rendering of services hereunder
(including, but not limited to, fees and expenses incurred in attending
Company-related meetings).
8. Liability. Neither of the Consultants nor any of its
affiliates, partners, employees or agents shall be liable to the Company or its
subsidiaries or affiliates for any loss, liability, damage or expense arising
out of or in connection with the performance of its services contemplated by
this Agreement, unless such loss, liability, damage or expense shall be proven
to result directly from the gross negligence or willful misconduct of such
Consultant.
9. Term.
(a) This Agreement shall commence on the date first set
forth above and shall continue for so long as any of the Consultants or its
affiliates, successors or assigns maintain an equity interest in the Company.
(b) Notwithstanding the foregoing, the Company may terminate
this Agreement in the event of a sale of all or substantially all of the assets
of the Company or a sale of a majority of the voting stock of the Company in a
single transaction or a series of coordinated transactions, only if there are no
longer any representatives of either of the Consultants on the Company's Board
of Directors.
(c) On termination of this Agreement, the powers, duties,
discretion and/or functions delegated by the Company to the Consultants
hereunder shall automatically be withdrawn and revoked.
10. Confidentiality. Neither of the parties hereto, either
during the continuance of this Agreement or after its terminations, shall
disclose to any person (except with the written authority of the other party or
unless ordered to do so by a court of competent jurisdiction) any information
relating to the business, assets, finances or other affairs of a confidential
nature of the other party of which it may have become possessed during the
period of this Agreement and each party shall use its reasonable endeavors to
prevent any such disclosure as aforesaid.
11. Indemnification. The Company agrees to indemnify and
hold harmless the Consultants, its partners, affiliates, officers, agents and
employees against and from any and all loss, liability, suits, claims, costs,
damages and expenses (including attorneys' fees) arising from their performance
hereunder, except as a result of their gross negligence or willful misconduct.
In the event of any suit, action, claim or other proceeding, whether pending or
threatened, (a "Claim") relating to this Agreement or any of the services to be
provided hereunder, and whether or not the Consultants are actually a party
thereto, the Company agrees to fund, on an ongoing basis and as incurred, the
reasonable costs and expenses incurred by the Consultants in connection with
such Claim including, without limitation, all fees incurred investigating,
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preparing and pursuing such Claim (the "Defense Costs"). If, upon final
determination of a count of competent jurisdiction, it is determined that the
Consultants were not entitled to indemnification hereunder, the Consultants
shall repay the Company for any out-of-pocket costs that the Company paid for
the Defense Costs.
12. The Consultants an Independent Contractor. Each of the
Consultants and the Company agree that each Consultant shall perform services
hereunder as an independent contractor, retaining control over and
responsibility for its own operations and personnel. Neither of the Consultants
nor its directors, officers, or employees shall be considered employees or
agents of the Company as a result of this Agreement nor shall any of them have
authority to contract in the name of or bind the Company, except as expressly
agreed to in writing by a Company.
13. Notices. Any notice, report or payment required or
permitted to be given or made under this Agreement by one party to the other
shall be deemed to have been duly given or made if personally delivered or, if
mailed, when mailed by registered or certified mail, postage prepaid, to the
other party at the following addresses (or at such other address as shall be
given in writing by one party to the other):
if to the Company:
TBM Holdings Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
if to the Consultants:
Whitney III, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxxx X. Xxxxxxxx
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and
Xxxxx Associates Incorporated
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxx, Esq.
Xx. Xxxxxx X. Xxxxx, Esq.
14. Entire Agreement; Modification. This Agreement (a)
contains the complete and entire understanding and agreement of the Consultants
and the Company with respect to the subject matter hereof; and (b) supersedes
all prior and contemporaneous understandings, conditions and agreements, oral or
written, express or implied, respecting the engagement of the Consultants in
connection with the subject matter hereof.
15. Waiver of Breach. The waiver by either party of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of that provision or any other
provision hereof.
16. Assignment. Neither the Consultants nor any Company may
assign its rights or obligations under this Agreement without the express
written consent of the other.
17. Successors. This Agreement and all the obligations and
benefits hereunder shall inure to the successors and permitted assigns of the
parties.
18. Counterparts. This Agreement may be executed and
delivered by each party hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original and both of which taken
together shall constitute one and the same agreement.
19. Choice of Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
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IN WITNESS WHEREOF, the Consultants and the Company have caused this
Professional Services Agreement to be duly executed and delivered on the date
and year first above written.
TBM HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
JHW III MANAGEMENT CO., LLC
By: Whitney Holding, LLC
Its Member
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Managing Member
XXXXX ASSOCIATES, LLC
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Manager
