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EXHIBIT 10.9
INTERIM SERVICES AGREEMENT
INTERIM SERVICES AGREEMENT, dated as of August 31, 1996 (the
"Agreement"), among VK/AC Holding, Inc., a Delaware corporation ("VK/AC
Holding"), ▇▇▇ ▇▇▇▇▇▇ American Capital, Inc., a Delaware corporation and wholly
owned subsidiary of VK/AC Holding ("VKAC"), MCM Group, Inc., a Delaware
corporation ("MGI"), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., a New York
corporation and wholly owned subsidiary of MGI ("MCM").
W I T N E S S E T H:
WHEREAS, the Board of Directors of VK/AC Holding has authorized VK/AC
Holding to effect a spin-off of MGI, a company formed to hold all of the
outstanding stock of MCM, to VK/AC Holding's common stockholders in proportion
to their respective holdings of VK/AC Holding common stock;
WHEREAS, the parties desire to enter into an agreement to continue the
provision of certain services on an interim basis by VK/AC Holding and VKAC
(herein referred to as the "Services Providers") and their subsidiaries to MGI,
MCM and their subsidiaries, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇., a French company,
MCM Asia Pacific Company Limited, a Japanese company, and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ (Europe) Ltd., a U.K. company (collectively, the "Subsidiaries");
NOW, THEREFORE, in consideration of the foregoing premises, and for
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Services. Subject to the terms and conditions set forth in this
Agreement, the Services Providers shall, and shall cause their subsidiaries to,
provide to MGI, MCM and the Subsidiaries each of the services set forth on
Schedule A hereto (each a "Service" and collectively, the "Services") for the
period beginning on the date hereof and ending, (i) with respect to all of the
Services, on the effective date of a notice of termination delivered by the
Services Providers pursuant to Section 2(a) hereof and (ii) with respect to each
Service, on the effective date of a notice of withdrawal delivered by MGI and
MCM pursuant to Section 2(b) hereof. The Services shall be provided at a level
of quality and performance consistent with the provision of such Services by the
Services Providers and their affiliates during the twelve-month period preceding
the date hereof.
2. Term. (a) The Services Providers shall have the right to terminate
their obligation under Section 1 hereof upon one year's advance written notice
to MGI and MCM. After the effective date of such termination, the Services
Providers shall have no further obligation pursuant to this Agreement to provide
the Services to MGI, MCM or any of their Subsidiaries, and MGI and MCM shall
have no further
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obligation to pay any fees (other than accrued fees) for Services after such
date. Notwithstanding the foregoing, the Service listed as Item 4 on Schedule A
hereto (i.e, human resources services, including benefits management and the
continuation of the inclusion in the 401-k, medical, dental and other group
benefit plans of VK/AC of employees of the Company who are eligible as of August
31, 1996 to participate in such plans) shall terminate without further action
hereunder on the earlier to occur of (i) the closing of the transactions
contemplated by the Agreement and Plan of Merger, dated as of June 21, 1996 (the
"Merger Agreement"), among VK/AC Holding, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group, Inc., MSAM
Holdings II, Inc. and MSAM Acquisition Inc. and (ii) December 31, 1996.
(b) MGI and MCM shall have the right to terminate or withdraw
from the use of any or all of the Services upon thirty (30) days' advance
written notice to the Services Providers. Upon the effective date of any such
termination or withdrawal from the use of any of the Services, the Services
Providers shall have no further obligation pursuant to this Agreement to provide
such Service to MGI, MCM or any of their Subsidiaries, and MGI and MCM shall
have no further obligation to pay any fees (other than accrued fees) for such
discontinued Service after such date.
3. Fees for Services; Expenses.
(a) MGI and MCM, jointly and severally, agree to pay to the
Services Providers the fees set forth in Schedule A with respect to each
Service. The parties acknowledge that the fees set forth in Schedule A hereto
include the Services Providers' overhead expenses attributable to the provision
of the Services.
(b) MGI and MCM, jointly and severally, agree to reimburse
the Services Providers for such reasonable out-of-pocket expenses as may be
incurred by the Services Providers and their employees and reasonably approved
of in advance in writing by MCM in the course or on account of rendering of any
Services hereunder.
4. Invoicing and Payment. VKAC, on behalf of the Services Providers,
shall submit to MCM on a monthly basis an invoice for the Services rendered to
MGI, MCM and their Subsidiaries and, subject to Section 3(b), any related
out-of-pocket expenses during the preceding month in accordance with Section 3
hereof. MCM shall pay such amounts due within fifteen (15) days of receipt of
such invoice in accordance with the payment instructions specified therein or,
if no instructions are so specified, in accordance with the standing payment
instructions in effect from time to time between VKAC and MCM.
5. Indemnification. MGI and MCM, jointly and severally, shall indemnify
and hold harmless each of the Services Providers and its affiliates and their
respective officers, directors, employees, shareholders, controlling persons,
agents, affiliated persons, representatives, advisors, successors and assigns
(each an "Indemnitee" and, collectively, the "Indemnitees") from and against any
and all losses, liabilities, obligations, claims, damages, costs and expenses
(including attorneys' fees and disbursements) to which any such Indemnitee may
become subject arising out of the provision by the Services Providers or their
affiliates to MGI, MCM and their Subsidiaries of the Services, except to the
extent that such losses, liabilities, obligations, claims, damages, costs and
expenses arise out of the willful misfeasance, bad faith or gross negligence of
any such Indemnitee.
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6. Limitation of Liability. In providing Services hereunder, neither
the Services Providers and their affiliates nor any of their respective
officers, directors, employees, shareholders, controlling persons, agents,
affiliated persons, representatives, advisors, successors or assigns shall be
liable to MGI, MCM or their Subsidiaries for any loss incurred by MGI, MCM or
their Subsidiaries in connection with the provision of Services hereunder or any
other matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of any of the
Services Providers and their affiliates.
7. No Warranties; Limitation of Remedy. THE SERVICES PROVIDERS MAKE NO
WARRANTIES AS TO THE MERCHANTABILITY OR FITNESS FOR MGI'S, MCM'S, THEIR
SUBSIDIARIES' OR ANY OTHER PARTY'S PURPOSE OF ANY EQUIPMENT, MATERIALS OR DATA
PROVIDED HEREUNDER. The exclusive remedy of MGI, MCM or any of their
Subsidiaries for any loss, damage or expense that any of them may incur as a
result of errors or defects in performance by the Services Providers or their
affiliates or which otherwise relates to the provision of Services hereunder,
whether based upon negligence, contract, tort, warranty or otherwise, shall be:
(a) in the case of errors or defects in performance, the furnishing by the
Services Providers or their affiliates, free of charge, of the services of the
Services Providers' or their affiliates' personnel (including machine time), in
units of time equivalent to those for which there was an applicable default by a
Service Provider or an affiliate, and (b) in all other cases (including loss of
or damage to data or programs), general money damages in an amount not to exceed
the average monthly amount previously billed hereunder to MGI and MCM for such
Services, for which the Services Providers shall be jointly and severally
liable. In no event shall either Services Provider or any of its affiliates be
liable for lost profits or claims by MGI, MCM or any Subsidiary or any other
party or for any special, consequential, punitive or exemplary damages.
8. Force Majeure. Neither the Services Providers nor any of their
subsidiaries or affiliates shall be liable for failure to provide the Services
if such failure is due to causes beyond their reasonable control.
9. Further Assurances. Each of the parties will make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as any other party may reasonably request, or as may reasonably
be required, in order to effectuate the purposes of this Agreement and to carry
out the terms hereof.
10. Amendment and Waiver. Except as otherwise provided herein, this
Agreement and any term or provision hereof may be amended, modified or waived
only by a written instrument executed by the parties hereto.
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11. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
hereto.
12. Independent Contractor. Each of the Services Providers and its
affiliates is an independent contractor and, during the term hereof, the
relationship between the Services Providers and their affiliates, on the one
hand, and MGI, MCM and their Subsidiaries, on the other hand, is that of vendor
and vendee. Neither of such parties (nor its agents or employees) shall under
any circumstances be deemed agents, partners, joint venturers or representatives
of the other. Neither of such parties shall have the right to bind the other
party in any respect except as expressly provided herein.
13. Notices. All communications hereunder shall be in writing,
delivered in person, by first-class mail (postage prepaid) or facsimile, and
addressed as follows:
(a) if to the Services Providers,
VK/AC Holding, Inc.
▇▇▇ ▇▇▇▇▇▇ American Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
VK/AC Holding, Inc.
▇▇▇ ▇▇▇▇▇▇ American Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) if to MGI and MCM,
MCM Group, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
One Chase Manhattan ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇
▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or to such other address as any party hereto shall have designated by notice in
writing to the other parties.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after having been deposited in the mail, postage prepaid, if mailed; and
when receipt is acknowledged, if telecopied.
14. Miscellaneous. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning,
construction or interpretation of this Agreement. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument. THIS AGREEMENT
IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OR RULES THEREOF).
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
VK/AC HOLDING, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
MCM GROUP, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive
Officer
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive
Officer
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Exhibit 10.9
Schedule A
Services
1. General management services, including building management, furniture
and equipment maintenance, insurance, mail and delivery services,
travel services, purchasing, rental and lease arrangements and
supplies:
Fees: $2,000 per month
2. Executive management services, including executive advisory services
provided by senior management of the Services Providers:
Fees: $3,000 per month
3. Financial and accounting services, including all treasury and cash
management functions, accounts payable, commission accounting,
financial statement preparation, management reporting, regulatory
reporting and filings, tax planning and advice (but not including any
income tax return preparation, except as hereinafter provided), and
the preparation of pro forma tax returns and the related schedules for
MGI, MCM and their subsidiaries with respect to VK/AC's or its
affiliates' consolidated, combined or unitary income tax returns for
the period beginning January 1, 1996 and ending August 31, 1996:
Fees: $8,000 per month
4. Human resources services, including benefits management and the
continuation of the inclusion in the 401-k, medical, dental and other
group benefit plans of VK/AC of employees of the Company who are
eligible as of August 31, 1996 to participate in such plans:
Fees: $1,500 per month
5. Payroll processing services:
Fees: $500 per month
