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 Del Global
Technologies Corp., a New York corporation (the “Company”), having an office at
00X X. Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 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 a
majority of the disinterested directors of the Company has voted to approve 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.
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.
1.02. 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
Xxxx X. Xxxxxx available to act as, and he shall devote such time and effort as
is necessary to fulfill the statutory and fiduciary duties of, the President and
Chief Executive Officer of the Company until such time as otherwise instructed
or removed by the board of directors of the Company or the resignation of Xxxx
X. Xxxxxx in any of the capacities.
1.03. 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 Xxxx X. Xxxxxx. 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 Xxxx X.
Xxxxxx at the Company’s sole cost and expense, and Xxxx X. Xxxxxx 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 1.03. In addition, the Company shall promptly reimburse
SP Corporate and Xxxx X. Xxxxxx for certain expenses, including legal expenses,
as well as all reasonable and necessary business expenses, incurred on behalf of
the Company.
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 Amended and
Restated Bylaws 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 or willful misconduct of SP Corporate or SP Corporate’s
officers, directors, employees or agents.
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 Xxxx X. Xxxxxx 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 Xxxx X.
Xxxxxx’x activities or services under this Agreement (a “Claim”), except to the
extent occasioned by the gross negligence or willful misconduct of SP Corporate,
Xxxx X. Xxxxxx or SP Corporate’s officers, directors, employees or
agents. At the written request of SP Corporate and/or Xxxx X. Xxxxxx,
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 Xxxx. X. Xxxxxx is
acting as non-employee CEO and/or President of the Company, the Company shall
cause Xxxx X. Xxxxxx 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 Xxxx X.
Xxxxxx) 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.
7.02 The
Company, SP Corporate and their respective Affiliated Companies (as defined
below) 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 a majority of the
disinterested directors of the Company has voted to approve 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. 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.
8.03. 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.
8.04. This
Agreement may not be assigned by any party without the prior written consent of
the other parties to this Agreement.
8.05. 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.
8.06. 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 Xxxx X. Xxxxxx 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 Xxxx X. Xxxxxx.
8.08. Xxxx
X. Xxxxxx 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.
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/ Xxxx X. Xxxxx | |||
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Name:
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Xxxx X. Xxxxx | |||
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Title:
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Chief Financial Officer | |||
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/s/
Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx, individually and solely for the purposes specified in Section
8.08 above
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EXHIBIT
A
The “Services” shall be limited to the
following:
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1.
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Provide
the non-exclusive services of Xxxx X. Xxxxxx to serve as the Company’s
Chief Executive Officer and President. Such person, in his
capacity as the Chief Executive Officer and President, will perform all
duties normally associated with that of the Company’s Chief Executive
Officer and President, 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 President and 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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The
monthly fee for providing the Services shall be $30,000.
