Exhibit 10.2
MANAGEMENT AGREEMENT
AGREEMENT made as of February 5, 2001 by and between PMD GROUP IINC., a
Delaware corporation (the "Corporation"), and DB Capital/PMD Investors, LLC., a
Delaware limited liability company ("DB").
WHEREAS, DB 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, DB also renders advisory services to selected client
companies, and the Corporation desires to retain DB to render advisory and
consulting services to it and DB 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 DB to render advisory and consulting
services to the Corporation, and DB 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"). DB 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 DB's advisory and consulting services rendered
pursuant to Section 1 hereof, the Corporation will pay, and DB 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 $500,000 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 DB 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 DB may be involved with
potential acquisitions, mergers, financings or other major transactions
involving the Corporation, in which case DB shall be entitled to such
compensation, in addition to the fee provided above, as the Corporation and DB
shall mutually agree, in each case consistent with the Stockholders Agreement.
In addition to the aforementioned fees, the Corporation shall reimburse
DB 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 DB 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 our prior written consent. In addition,
DB's role under this
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Agreement may not be otherwise referred to without DB's prior consent.
3. Any notice required to be given hereunder shall be in writing and
shall be 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 DB, to it at its office c/o
DB Capital Partners, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other address as DB may hereafter designate for that purpose.
4. DB and/or its affiliates are a full service securities firm engaged
in securities trading and brokerage activities as well as investment banking and
financial advisory services. In the ordinary course of our trading and brokerage
activities, DB or its affiliates may hold positions, for its own account or the
accounts of customers, in equity, debt or other securities of the Company or any
other company that may be involved in the matters contemplated by this
agreement.
5. In connection with this engagement, DB and/or its affiliates will be
acting as independent contractors and not in any other capacity, with duties
owing solely to the Company. 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 Company shall consolidate or merge or
to which it shall transfer substantially all of its assets.
6. 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
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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: /s/
-----------------------------------------
Name:
Title:
DB CAPITAL/PMD INVESTORS LLC
By: DB Capital Investors, L.P.,
its Managing Member
By: DB Capital Partners, L.P.,
its General Partner
By: DB Capital Partners, Inc.,
its General Partner
By: /s/
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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ANNEX A - INDEMNIFICATION AGREEMENT
As part of the consideration for the agreement of DB to furnish its
services under this Agreement, the Corporation hereby agrees to indemnify and
hold harmless DB and its affiliates and the respective managing directors,
officers, directors, investors, shareholders, members, partners, employees and
agents of, and persons controlling, DB 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 DB pursuant to the terms of this Agreement, or DB'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 DB in bad faith or due to DB's gross negligence or
willful misconduct. If for any reason (other than the bad faith, gross
negligence or willful misconduct of DB 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 DB on the other, but also the relative fault of the Corporation and DB,
as well as any relevant equitable considerations, subject to the limitation that
in any event DB's aggregate contribution to all claims, expenses, losses,
liabilities and damages shall not exceed the amount of fees actually received by
DB pursuant to this Agreement. Promptly after receipt by DB of notice of any
complaint or the commencement of any action or proceeding with respect to which
indemnification may be sought against the Corporation, DB 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. DB 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 DB 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 DB 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 DB and (i) in the good faith judgment of DB the use of joint counsel would
present such counsel with an actual or potential conflict of interest or (ii) DB
shall have been advised by counsel that there may be one or more legal defenses
available to it which are
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different from or additional to those available to the Corporation (or the
director(s)). The Corporation will not, without DB'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 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 DB 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 DB, or any indemnified person in connection with
investigating, preparing or defending any such action or claim. DB 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 DB'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 DB'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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