MANAGEMENT SERVICES AGREEMENT
Exhibit
10.1
AGREEMENT,
effective as of September 1, 2009, by and between SP Corporate Services LLC (“SP
Corporate”), a Delaware limited liability company, having an office at 000
Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Point Blank Solutions, Inc., a Delaware
corporation (the “Company”), having an office at 0000 X.X. 0xx
Xxxxxx, Xxxxxxx Xxxxx, XX 00000.
W I T N E
S S E T H:
WHEREAS,
the Company desires to have SP Corporate furnish certain services to the
Company, as set forth on Exhibit A attached
hereto as it may be amended from time to time pursuant to the terms hereof (the
“Services”), and SP Corporate has agreed to furnish Services, pursuant to the
terms and conditions hereinafter set forth; and
WHEREAS,
this Agreement has been approved by the Audit Committee of the Board of
Directors of the Company (the “Board”) and recommended Board approval, and the
disinterested directors of the Company unanimously approved this
Agreement.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as
follows:
Section
1. Engagement of SP
Corporate.
1.01. During
the term of this Agreement, SP Corporate shall provide to the Company such
Services, as more fully described and defined on Exhibit A, as may be
necessary or desirable or as may be reasonably requested or required, in
connection with the business, operations and affairs, both ordinary and
extraordinary, of the Company and its subsidiaries and affiliates.
1.02. In
performing Services, SP Corporate shall be subject to the supervision and
control of the disinterested directors of the Company. In no event
shall SP Corporate incur an obligation or enter into any transaction on behalf
of the Company involving in excess of $50,000 without the prior approval of the
disinterested directors of the Company, except that such restriction shall not
apply to Xxxxx X. Xxxxxxxxx (“Xxxxxxxxx”) acting in his capacity as an officer
of the Company or any of its subsidiaries.
1.03. While
the amount of time and personnel required for performance by SP Corporate
hereunder will necessarily vary depending upon the nature and type of Services,
SP Corporate shall devote such time and effort and make available such personnel
as may from time to time reasonably be required for the performance of Services
hereunder. Notwithstanding the foregoing, SP Corporate shall make
Xxxxxxxxx available to act as, and he shall devote such time and effort as is
necessary to fulfill the statutory and fiduciary duties of, the Chief Executive
Officer of the Company until such time as otherwise instructed or removed by the
Board or the resignation of Xxxxxxxxx.
1.04. Exhibit A may be
amended from time to time to provide for additional Services, the elimination of
certain Services, increases or decreases to the compensation paid hereunder, or
other changes, upon the mutual agreement of the parties hereto.
Section
2. Term. This
Agreement shall commence effective as of September 1, 2009, and shall terminate
immediately upon written notice given to the other party or immediately upon the
death of Xxxxxxxxx. The Company shall have the right during (but not
after) the term of this Agreement, but not the obligation, to obtain and
maintain one or more policies of life insurance on the life of Xxxxxxxxx at the
Company’s sole cost and expense, and Xxxxxxxxx agrees to cooperate fully and
execute such reasonable documents as the Company shall request in connection
with such insurance.
Section
3. Payments to SP
Corporate.
3.01. In
consideration of Services furnished by SP Corporate hereunder, the Company shall
pay to SP Corporate a fixed monthly fee as set forth in Section 3.02, which
shall be adjustable annually upon mutual agreement by the parties or at other
times upon the amendment of Exhibit A pursuant to
Section 1.04, and the Company may pay SP Corporate an annual cash bonus
pursuant to the Company’s annual incentive plan, subject to the sole and
complete discretion of the Compensation Committee of the Board. In
addition, the Company shall promptly reimburse SP Corporate and Xxxxxxxxx for
reasonable legal expenses incurred in connection with this Agreement, shall
promptly reimburse SP Corporate for certain of Xxxxxxxxx’x reasonable living
expenses, including but not limited to his relocation, housing and automobile
expenses and SP Corporate hereby directs the Company to make such reimbursement
payments with respect to Xxxxxxxxx’x reasonable living expenses directly to
Xxxxxxxxx.
3.02. The
Company shall pay SP Corporate a fixed monthly fee in cash in amount set forth
on Exhibit A in
advance on the first day of each month.
Section
4. Limitation on
Liability. To the fullest extent permitted by law and as
consistent with the Company’s Second Amended and Restated By-Laws and
Certificate of Incorporation, as may be amended from time to time (the
“Company’s Charter Documents”), SP Corporate shall not be liable to the Company,
any affiliate thereof or any third party for any losses, claims, damages,
liabilities, penalties, obligations or expenses, including reasonable legal fees
and expenses, of any kind or nature whatsoever due to any act or omission in
connection with the rendering of Services hereunder, unless that act or omission
constitutes gross negligence, willful misconduct or fraud. Further,
SP Corporate shall reasonably rely on information provided to it about the
Company, if any, that is provided by the Company or the Company’s affiliates,
employees or agents. In no event shall SP Corporate be liable for any
error or inaccuracy of any report, computation or other information or document
produced in accordance with this Agreement, for whose accuracy the Company
assumes all responsibility, unless resulting from the gross negligence, willful
misconduct or fraud of SP Corporate or SP Corporate’s officers, directors,
employees or agents.
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Section
5. Indemnity and D&O
Insurance. To the fullest extent permitted by law and as
consistent with the Company’s Charter Documents, the Company shall defend,
indemnify, save and hold harmless SP Corporate and Xxxxxxxxx from and against
any claims, liabilities, damages, losses, costs or expenses, including amounts
paid in satisfaction of judgments, in compromises and settlements, as fines and
penalties and legal or other costs and reasonable expenses of investigating or
defending against any claim or alleged claim of any nature whatsoever resulting
from SP Corporate’s or Xxxxxxxxx’x activities or services under this Agreement
(a “Claim”), except to the extent occasioned by the gross negligence, willful
misconduct or fraud of SP Corporate, Xxxxxxxxx or SP Corporate’s officers,
directors, employees or agents. At the request of SP Corporate and/or
Xxxxxxxxx, the Company will advance to them the legal or other costs and
reasonable expenses of investigating or defending against any Claim in advance
of the final disposition of such Claim. To the fullest extent
permitted by law and as consistent with the Company’s Charter Documents, the
Company’s obligation to indemnify SP Corporate hereunder shall extend to and
inure to the benefit of SP Corporate’s officers, directors, members, employees,
affiliates and consultants. If SP Corporate should reasonably
determine its interests are or may be adverse to the interests of the Company,
SP Corporate may retain its own counsel in connection with such claim or alleged
claim or action, in which case the Company shall be liable, to the extent
permitted under this Section 5, to SP Corporate for any reasonable and
documented legal, accounting or other directly related fees and expenses
incurred by SP Corporate in connection with its investigating or defending such
claim or alleged claim or action. In addition, at all times during
which Xxxxxxxxx is acting as the Company’s non-employee Chief Executive Officer
pursuant to this Agreement, the Company shall cause Xxxxxxxxx to be covered by a
D&O insurance policy issued by a reputable D&O insurance carrier with
coverages and terms no less favorable than those contained in the Company’s
current D&O insurance policy. In addition, neither SP Corporate
nor any of its officers, directors, members, employees, affiliates or
consultants (including Xxxxxxxxx) shall be liable to the Company or any third
party for any special, consequential or exemplary damages (including lost or
anticipated revenues or profits relating to the same) arising from any claim
relating to this Agreement or any of the services provided hereunder, whether
such claim is based on warranty, contract, tort (including negligence or strict
liability) or otherwise, even if an authorized representative of SP Corporate is
advised of the possibility or likelihood of the same.
Section
6. Confidential
Information. SP Corporate shall not at any time during or
following the termination or expiration for any reason of this Agreement,
directly or indirectly, disclose, publish or divulge to any person (except where
necessary in connection with the furnishing of Services under this Agreement),
appropriate or use, or cause or permit any other person to appropriate or use,
any of the Company’s inventions, discoveries, improvements, trade secrets,
copyrights or other proprietary, secret or confidential information not then
publicly available.
Section
7. Non-Exclusive Arrangement;
Conflicts of Interest.
7.01. The
Company acknowledges that SP Corporate and its Affiliated Companies (as defined
below) may from time to time enter into agreements similar to this Agreement
with other companies pursuant to which SP Corporate may agree to provide
services similar in nature to the Services being provided
hereunder. The Company understands that the person or persons
providing the Services hereunder may also provide similar or additional services
to other companies, including as officers and directors of such
companies. In addition, to the extent business opportunities arise,
the Company acknowledges that SP Corporate will be under no obligation to
present such opportunity to the Company, and SP Corporate may, in its sole
discretion, present any such opportunity to whatever company it so chooses, or
to none at all; provided, however, nothing
contained herein shall affect or otherwise limit the fiduciary obligations of
the officers and directors of the Company.
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7.02. The
Company, SP Corporate and their respective Affiliated Companies recognize and
acknowledge that as a result of SP Corporate providing the Services pursuant to
this Agreement the potential for conflicts of interest exist between and/or
among SP Corporate, the Company, Affiliated Companies of SP Corporate and the
Company and the respective officers and directors of SP Corporate and the
Company, including but not limited to (i) that an Affiliated Company of SP
Corporate may be a majority or significant stockholder of the Company, (ii) that
directors, officers, members and/or employees of SP Corporate or of Affiliated
Companies of SP Corporate may serve as directors and/or officers of the Company,
(iii) that SP Corporate and Affiliated Companies thereof may engage and are
expected to continue to engage in the same, similar or related lines of business
as those in which the Company, directly or indirectly, may engage and/or other
business activities that overlap with or compete with those in which the
Company, directly or indirectly, may engage, (iv) that SP Corporate and
Affiliated Companies thereof may have an interest in the same areas of corporate
opportunity as the Company and Affiliated Companies thereof, and (v) that SP
Corporate and Affiliated Companies thereof may engage in material business
transactions with the Company and Affiliated Companies thereof, including
(without limitation) providing Services to or being a significant supplier of
the Company and Affiliated Companies thereof. The Company further
recognizes, acknowledges and agrees that any such conflicts of interest shall be
resolved by SP Corporate in its sole discretion.
7.03. For
purposes of this Agreement, “Affiliated Companies” shall mean in respect of SP
Corporate any entity which is controlled by SP Corporate, controls SP Corporate
or is under common control with SP Corporate (other than the Company and any
entity that is controlled by the Company), and in respect of the Company shall
mean any entity controlled by the Company.
7.04. The
Company represents and warrants that the Audit Committee of the Board has
approved this Agreement and recommended Board approval, and the disinterested
directors of the Company unanimously approved this Agreement.
Section
8. General.
8.01. This
Agreement constitutes the entire agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all prior representations and
agreements, whether oral or written, and cannot be modified, changed, waived or
terminated except by a writing signed by both of the parties
hereto. No course of conduct or trade custom or usage shall in any
way be used to explain, modify, amend or otherwise construe this
Agreement.
8.02. The
waiver by a party of a breach of any provision of this Agreement shall not be
construed as a waiver of any subsequent breach. The failure of a
party to insist upon strict adherence to any provision of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that provision or any other
provision of this Agreement. Any waiver must be in a writing signed
by the party against which the waiver is sought to be enforced.
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8.03. All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing and shall be deemed to have been duly given
if personally delivered, sent by nationally recognized overnight carrier, one
day after being sent, or mailed by first class registered or certified mail,
return receipt requested, five days after being sent.
8.04. This
Agreement shall be construed under the laws of the State of New York and the
parties hereby submit to the personal jurisdiction of any federal or state court
located therein, and agree that jurisdiction shall rest exclusively therein,
without giving effect to the principles of conflict of laws.
8.05. This
Agreement may not be assigned by any party without the prior written consent of
the other parties to this Agreement.
8.06. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
8.07. Sections
4, 5 and 6 shall survive any expiration or termination of this
Agreement.
8.07. Except
as specifically provided herein, none of the parties shall act or represent or
hold itself out as having authority to act as an agent or partner of any other
party, or in any way bind or commit any other party to any
obligations. Nothing contained in this Agreement shall be construed
as creating a partnership, joint venture, agency, trust or other association of
any kind, each party being individually responsible for its obligations set
forth in this Agreement. Neither party shall be responsible for the
compensation, the withholding of taxes, workers compensation, or any other
employer liability for the employees and agents of the other
party. Without limiting the generality of the foregoing, the parties
acknowledge and agree that SP Corporate is an independent contractor and that
neither Xxxxxxxxx nor SP Corporate is an employee of the Company. SP
Corporate or an Affiliated Company of SP Corporate shall timely withhold and pay
all taxes and file all reports required by applicable law to be withheld, paid
and filed for Xxxxxxxxx.
8.08. Xxxxxxxxx
joins herein solely to acknowledge and agree to the terms hereof relating
specifically to him and to specifically acknowledge and agree that he is not an
employee of the Company and is not eligible for and has no right to receive any
compensation or benefits from the Company or to participate in any employee
benefit plans or programs available to the employees of the Company, including
welfare and retirement benefits.
[Signature
Page Follows]
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[Signature
Page to Management Services Agreement]
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
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SP
CORPORATE SERVICES LLC
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By:
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/s/ Xxxxxxx Xxxxxxxx | ||
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Chief
Operating Officer
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By:
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/s/ Xxxxxxxx Xxxxx | ||
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Name:
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Xxxxxxxx
Xxxxx
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Title:
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Chief
Financial Officer
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| /s/ Xxxxx X. Xxxxxxxxx | |||
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Xxxxx
X. Xxxxxxxxx, individually and solely for the purposes specified in
Section 8.08 above
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EXHIBIT
A
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1.
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The
“Services” shall consist of the non-exclusive services of Xxxxx X.
Xxxxxxxxx to serve as the Company’s Chief Executive
Officer. Such person, in his capacity as Chief Executive
Officer, will perform all duties normally associated with that of the
Company’s Chief Executive Officer, including without
limitation:
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·
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Provide
effective overall leadership to the
Company.
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·
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Provide
effective leadership in the Company’s efforts to meet required SEC filing
requirements.
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·
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Serve
as an effective member of the Company’s executive management
team.
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·
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Perform
all other duties of the Company’s Chief Executive Officer as set forth in
the Company’s Charter Documents and corporate governance policies as they
may be amended from time to time.
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2.
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The
monthly fee for providing the Services shall be
$37,500.
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