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EXHIBIT 10.35
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made and entered into
as of July 6, 1999, by and between KRG Capital Partners, L.L.C., a Delaware
limited liability company ("KRG"), Medical Device Manufacturing, Inc., a
Colorado corporation ("MDM"), and G&D, Inc., a Colorado corporation d/b/a Star
Guide Corporation ("Star Guide").
BACKGROUND
MDM, Star Guide, and each of their respective subsidiaries, if any
(collectively, the "Company"), desire to receive transaction advisory, financial
and management consulting services from KRG and thereby obtain the benefit of
KRG's experience in mergers, acquisitions, buyouts, industry consolidations and
business and financial management generally and its knowledge of the Company's
financial affairs in particular. KRG is willing to provide transaction advisory,
financial and management consulting services to the Company. Accordingly, the
compensation arrangements set forth in this Agreement are designed to compensate
KRG for such services.
NOW, THEREFORE, in consideration of the premises, the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, each of KRG and the Company hereby agree as follows:
TERMS
1. ENGAGEMENT.
The Company hereby engages KRG as a financial and management consultant
and transaction advisor, and KRG hereby agrees to provide financial and
management consulting and transaction advisory services to the Company, all on
the terms and subject to the conditions set forth below.
2. SERVICES OF KRG.
KRG hereby agrees during the term of this engagement to consult with
the Company's boards of directors (collectively, the "Board") and management of
the Company in such manner and on such business and financial matters as may be
reasonably requested from time to time by the Board, including, but not limited
to:
(i) Corporate, acquisition and divestiture strategies;
(ii) Budgeting of future corporate investments;
(iii) Public offerings;
(iv) Debt and equity financings;
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(v) Sourcing and identifying potential acquisition
candidates;
(vi) Establishing initial contact and negotiating letters
of intent with targets;
(vii) Formulating and negotiating acquisition structures
(i.e., stock/cash mix, earnouts, compensation, etc.);
(viii) Financial modeling of target acquisitions;
(ix) Oversight of lender approval process;
(x) Oversight of due diligence process (including
specialists, i.e., environmental, ERISA, insurance,
tax, etc.);
(xi) Negotiating definitive acquisition agreements and
ancillary documents;
(xii) Coordination and oversight of closing process;
(xiii) Assisting management in implementation of integration
strategy and post-closing matters (i.e., identifying
potential cost savings, plant closings, employee
matters, lease negotiations, supply agreements and
other consolidation opportunities); and
(xiv) Assisting management in presentations to the
investment community and analysts of acquired
companies and results of acquisition strategy.
Principals of KRG will be available to serve on the Board and will devote such
time and attention to the Company's affairs as reasonably necessary to
accomplish the purposes of this Agreement.
3. COMPENSATION.
(a) The Company hereby agrees to pay to KRG, as compensation for
services to be rendered by KRG hereunder, an aggregate fee equal to $200,000 per
year (the "Base Fee"). The Base Fee will increase to $300,000 per year, or such
greater amount as may be approved by the Board, effective as of the closing of
the Company's acquisition of HV Technologies, Inc. ("HVT") or of any alternative
initial acquisition in the event that the closing of HVT does not occur. Any
subsequent increase in the Base Fee will be effective only upon approval by the
Board. The Base Fee, as set forth herein and established from time to time, will
be payable in twelve (12) equal monthly installments, with payment in full of
each such installment due by the fifth day of each calendar month. In addition
to the Base Fee, the Company agrees to pay to KRG, as compensation for services
rendered to the Company with respect to the consummation of any acquisition of a
medical supply manufacturing business or any other acquisition in furtherance of
the Company's business strategy, which transaction closes after the date hereof,
a transaction closing fee (the "Transaction
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Closing Fee") equal to the greater of (i) $75,000, or (ii) one percent (1%) of
the Transaction Value. Notwithstanding the foregoing, (i) KRG's fees in
connection with the closing of the Star Guide acquisition will be as set forth
in Section 3(b), and (ii) the Transaction Closing Fee may be adjusted upward if
the Board determines that an acquisition transaction presented unusual
complexities. For purposes of this Agreement, "Transaction Value" will mean the
aggregate of all cash and non-cash consideration paid to the sellers of the
company or business being acquired and the value of all interest-bearing debt
assumed by the Company. Any non-cash consideration will be valued at fair market
value, and the value of any equity securities issued will be fair market value
on the date of issuance, assuming such equity securities are fully vested on
such date.
(b) In addition to the fees set forth in Section 3(a) above, the
Company hereby further agrees to pay to KRG: (i) a $300,000 transaction fee for
KRG's services performed in connection with the Star Guide acquisition, and (ii)
certain fees as set forth below in Section 4.
(c) In addition to the fees set forth in Section 3(a) above, in the
event of the Sale of the Company (as hereinafter defined), KRG shall be entitled
to a fee equal to (i) one per cent (1%) percent of the Transaction Value of the
Sale of the Company, if the Company does not retain an investment banking firm
to act on its behalf in connection with the transaction and (ii) one-half of one
per cent (.5%) of the Transaction Value if the Company does retain an investment
banking firm, provided that in no event shall such fee exceed $750,000 unless
approved in advance by the Board.
4. TERM.
This Agreement will be in effect for an initial term of five (5) years,
commencing on the date hereof, and will be renewed automatically thereafter on a
year-to-year basis unless one party gives the other thirty (30) days' prior
written notice of its desire not to renew this Agreement; provided, however,
that this Agreement will immediately terminate on the date KRG gives the Company
written notice of termination. In the event of a Sale of the Company or an
initial public offering of shares of the capital stock of either MDM or Star
Guide (either, an "IPO"), this Agreement will be automatically renewed, without
further action or notice by KRG or the Company, for an additional five (5)-year
term unless the Board, not later than sixty (60) days after the closing of a
Sale of the Company or an IPO, gives KRG written notice of its desire not to
renew this Agreement for such term. In the event that the Board terminates this
Agreement by delivering the required written notice upon an IPO or Sale of the
Company, the Company agrees to pay KRG an accelerated cash payment in an amount
equal to the Base Fee (as then in effect) for a period of time that is the
longer of (A) two and one-half (2 1/2) years, or (B) the remainder of the term
of the Agreement. As used herein, the term "Sale of the Company" will mean any
transaction or series of related transactions (i) the result of which is that
any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other than KRG Capital
Fund I, L.P., KRG Capital Fund I (PA), L.P., or KRG Capital Fund I (FF), L.P.
(collectively the "Fund"), KRG, any institutions, individuals or entities that,
upon invitation or by contractual right, co-invest in MDM with the Fund or KRG
(the "Invited Parties" and, together with KRG and the Fund, the
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"KRG Investing Parties"), or persons controlling, controlled by or under common
control with the KRG Investing Parties, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), of more than 50% of the issued
and outstanding Voting Stock (as defined below) of MDM, (ii) that results in the
sale of all or substantially all of the Company's assets, or (iii) that results
in the consolidation or merger of MDM with or into another corporation or
corporations or other entity in which MDM is not the survivor (except any such
corporation or entity controlled, directly or indirectly, by the Company). No
termination of this Agreement, whether pursuant to this paragraph or otherwise,
will affect the Company's obligations with respect to earned and accrued fees,
costs and expenses incurred by KRG in rendering services hereunder and not paid
or reimbursed by the Company as of the effective date of such termination.
As used herein, the term "Voting Stock" will mean and include (i) any
capital stock of any class of MDM ("Common Shares") which has the right to vote
on all matters submitted to holders of Common Shares, and (ii) any security,
right, option, warrant or agreement convertible into or exercisable to obtain
any Common Shares or capital stock of any class of MDM which has the right to
vote on all matters submitted to holders of Common Shares.
Any reference herein to an approval or other action of the Board will
mean a determination based on a finding by a majority vote of the members of the
Board (excluding the votes of those directors who are also principals of KRG)
that the approval or other action is in the best interest of the Company.
5. INDEMNIFICATION.
The Company hereby agrees to indemnify and hold harmless KRG, its
principals, 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 under this Agreement, except as a result of
their gross negligence or willful misconduct that results in a material adverse
effect on the Company's business operations or financial results.
6. KRG AN INDEPENDENT CONTRACTOR.
Each of KRG and the Company hereby agree that KRG will perform services
hereunder as an independent contractor, retaining control over and
responsibility for its own operations and personnel. Neither KRG nor its
principals, officers or employees will be considered employees or agents of the
Company as a result of this Agreement, nor will any of them have authority to
contract in the name of or bind the Company, except as expressly agreed to in
writing by the Company; provided, however, if any principal of KRG is serving as
an officer or director of the Company, such person will have all authority as an
officer or director of the Company to contract in the name of or otherwise bind
the Company, notwithstanding any other provision of this Agreement.
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7. CONFIDENTIAL INFORMATION.
KRG acknowledges that the information, observations and data obtained
by it, its principals, agents and employees during the course of KRG's
performance under this Agreement concerning the business plans, financial data
and business relations of the Company (the "Confidential Data") are the
Company's valuable, special and unique assets. KRG therefore agrees that it will
not, nor will it permit any of its principals, agents or employees, to disclose
to any unauthorized person any of the Confidential Data obtained by KRG during
the course of KRG's performance under this Agreement without the Company's prior
written consent, unless and to the extent that (i) the Confidential Data becomes
generally known to and available for use by the public otherwise than as a
result of KRG's acts or omissions to act, (ii) such disclosure is required by
any statute, rule, regulation or law or any judicial or administrative body
having jurisdiction, or (iii) such disclosure is made in the course of KRG's
performance of its duties under this Agreement to existing or potential lenders
or investors in the Company, potential acquirors or acquisition candidates of
the Company or other third parties performing or proposing to provide services
to the Company who have a need to know such information.
8. NOTICES.
Any notice or report required or permitted to be given or made under
this Agreement by one party to another will be deemed to have been duly given or
made if personally delivered, delivered by reputable overnight courier, sent by
telecopy, 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 will be given in writing by one party to the other):
if to KRG:
KRG Capital Partners, LLC
0000 Xxxxxxxx Xxxxxx
Tower One, Suite 1500
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx, Managing Director and
Xxxxx X. Xxxxxx, Managing Director
if to the Company:
Medical Device Manufacturing, Inc.
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
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9. ENTIRE AGREEMENT; MODIFICATION.
This Agreement (i) contains the complete and entire understanding and
agreement of KRG and the Company with respect to the subject matter hereof, (ii)
supersedes all prior and contemporaneous understandings, conditions and
agreements, oral or written, express or implied, respecting the engagement of
KRG in connection with the subject matter hereof, and (iii) may not be modified
except by an instrument in writing executed by each of KRG and the Company.
10. WAIVER OF BREACH.
The waiver by any party of a breach of any provision of this Agreement
by any other party will not operate or be construed as a waiver of any
subsequent breach of that provision or any other provision thereby.
11. ASSIGNMENT.
Neither KRG nor the Company may assign their respective rights or
obligations under this Agreement without the express written consent of all
other parties.
12. GOVERNING LAW.
This Agreement will be deemed to be a contract made under, and is to be
governed and construed in the accordance with, the internal laws of the State of
Colorado, without regard to conflict of law principles.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date above written.
KRG CAPITAL PARTNERS, LLC
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
MEDICAL DEVICE MANUFACTURING, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: Chief Executive Officer
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G&D, INC. d/b/a STAR GUIDE CORPORATION
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Vice President
