MANAGEMENT SERVICES AGREEMENT
THIS
MANAGEMENT SERVICES AGREEMENT ("Agreement") is made and entered into effective
as of the 1st day of March, 2007 (the "Effective Date"), by and between
Bedminster Financial Corp., a Nevada corporation (the "Company"), and Apogee
Holdings Inc., a New Jersey company (“Apogee").
In
consideration of the promises herein made and on the terms and subject to the
conditions herein contained, the Company and Apogee hereby agree as
follows:
1.
Engagement. The Company hereby retains Apogee for the period commencing on
the
Effective Date and continuing through December 31, 2017, subject to termination
as provided under Section 4 below. Apogee accepts such engagement.
2.
Duties.
(a)
Apogee will
provide Xxxx Xxxxxxxx ("Executive") to act as the Chief Executive Officer of
the
Company and cause Executive to report directly to the Company's Board of
Directors ("Board"). Executive will have the day-to-day responsibility for
the
management and direction of the Company as well as such other duties and
responsibilities commensurate with a chief executive officer .
(b)
Executive will
perform his duties in conformity with the reasonable and appropriate directions
of the Board. Executive will devote such time as Apogee deems necessary to
the
business and affairs of the Company.
3.
Compensation.
(a)
Fee. The Company
will pay to Apogee (or such other entity designated by Apogee) a fee (the "Fee")
at the monthly rate of Twenty Thousand Dollars ($20,000) per month, payable
monthly in cash on the 1st day of each month; which Fee shall be increased
by 5
% of such amount at each January 1 during the term of this Agreement. The
Company will not withhold any taxes from such Fee. Such Fee shall be increased
by $5,000 when and if the Company’s revenues, based on the trailing twelve
months on a pro forma basis, exceed $5,000,000 and thereafter increased by
an
additional $2,000 for each such pro forma revenue increase of
$5,000,000.
(b)
Benefits. Apogee
will be responsible for payment of Executive's withholding obligations and
health benefits.
(c)
Bonus. Apogee will earn an annual bonus as follows: ten percent (10%) of the
annual adjusted EBITDA ( earnings before interest, taxes, depreciation,
amortization, and less any unrealized capital gains) based on the audited
consolidated results of the Company.
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This
bonus shall be payable within thirty days (30) after the audit has been
completed as follows: 40% of such bonus shall be paid in cash and the remaining
60% shall be paid in shares of Class A Common Stock of the Company based on
an
amount equal to 120% of the Annual Average Stock Price. The Annual Average
Stock
Price for each fiscal year shall be determined by adding the closing price
for a
share of Class A Common Stock of the Company for each trading day of such year(
adjusted for any recapitalizations) and dividing the sum by the number of such
trading days; provided, however, that in no event shall the Annual Average
Stock
Price be less than the par value per share . Such Shares shall be restricted
from sale for a period of three years from the date the Apogee receives such
bonus shares. Apogee will also be entitled to an additional bonus of $100,000
in
cash if and when the Company becomes a separate publicly traded entity; provided
that the Board shall determine that the Company has sufficient funds to pay
such
bonus or any portion of such bonus from time to time so that a portion of such
bonus shall be paid if and only when the funds for payment of any such amounts
is available to the Company and an equal amount of operating funds remain after
any such payment .
(d)
Directors and
Officers Insurance; Indemnity. The Company will maintain appropriate amounts
of
directors and officers insurance coverage and of liability insurance. The
Company will name Apogee and Executive as an additional insured. The Company
will indemnify, defend and hold Executive and Apogee harmless against any
claims, costs (including legal fees) or liabilities respecting Executive's
or
Apogee's actions on behalf of the Company.
(e)
Reimbursement.
The Company will reimburse Apogee for its reasonable Company-related expenses
including office expense if an office is not provided by the
Company.
4.
Termination of Employment.
(a)
Termination at
Will by Either Party. Subject to the payment to Apogee of the applicable
termination payment as provided in Section 4(e) below, if any, either party
may
terminate this Agreement, for any reason, with or without Cause (as defined
at
Section 4(c) and (d) below), upon written notice to the other.
(b)
Death or
Permanent Disability of Executive. This Agreement will terminate automatically
upon the death or permanent disability of Executive. Executive will be deemed
permanently disabled for the purpose of this Agreement if in the good faith
determination of the Board, Executive has become physically or mentally
incapable of performing his duties hereunder for a continuous period of 90
days,
in which event Executive will be deemed permanently disabled upon the expiration
of such 90-day period. In the event of a termination of this Agreement due
to
the death or permanent disability of Executive, Apogee will be entitled only
to
the Fee earned through the date of such death or permanent disability in
accordance with Section 3, but to no other termination payment.
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(c)
Executive's
Termination for Cause. The Company will have the right to terminate this
Agreement for "Cause" at any time effective upon its giving written notice
to
Apogee specifying with particularity the facts and circumstances constituting
such Cause. For such purposes, "CAUSE" means the occurrence of one or more
of
the following: (i) conviction of Executive of any crime constituting either
a
felony or embezzlement, fraud or theft with respect to the property of the
Company; (ii) habitual alcohol or drug abuse by Executive which adversely
affects his job performance; (iii) the intentional breach of fiduciary duty
to
the Company; (iv) gross neglect or bad faith misconduct in the performance
of
Executive's duties hereunder which causes material loss, damage or injury to
or
otherwise materially endangers the property, reputation or employees of the
Company; or (v) the breach of any material provision of this Agreement by
Apogee.
(d)
Apogee's
Resignation . Apogee will have the right to terminate this Agreement at any
time
effective upon ninety (90) days written notice to the Company .
(e)
Compensation Upon
Termination.
(i)
In the event the
Company terminates this Agreement for Cause or Apogee voluntarily terminates
this Agreement , Apogee will be entitled to only: (A) the compensation provided
for in Section 3(a) hereof for the period of time ending with the date of
termination; and (B) reimbursement for such expenses as Apogee may have properly
incurred on behalf of the Company as provided in Section 3(e) above prior to
the
date of
termination.
(ii)
In the event the
Company terminates this Agreement without Cause , Company further will pay
Apogee the Fee for each month or partial month remaining in the term of this
Agreement up to a maximum termination payment of Two Hundred Fifty Thousand
Dollars ($250,000).
5.
Assignment
and Transfer.
(a)
Company. This
Agreement may not be assigned by the Company to any purchaser of all or
substantially all of the Company's business or assets without the written
consent of Apogee.
(b)
Apogee. Apogee's
rights and obligations under this Agreement will not be transferable by Apogee
by assignment or otherwise, except to any entity controlled by either Executive
or Apogee. Any other purported assignment, transfer or delegation thereof will
be void.
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6.
Confidentiality. Apogee agrees that all trade secrets, confidential or
proprietary information with respect to the activities and businesses of the
Company including, without limitation, personnel information, business plans,
marketing plans, forecasts, strategies and information which have been or are
learned by Executive in the course of its employment by the Company
(collectively, "PROPRIETARY INFORMATION") will be kept and held in confidence
and trust by Apogee . Apogee will not use or disclose Proprietary Information
except as necessary in the normal course of the business of the Company for
its
sole and exclusive benefit, unless Apogee is compelled so to disclose under
process of law, in which case Apogee will first notify the Company promptly
after receipt of a demand to so disclose. Apogee agrees and acknowledges that
it
will cause Executive to comply with the terms of Section 6 of this
Agreement.
7.
Independent Contractor. It is the express intention of the parties that Apogee
is an independent contractor and neither it nor Executive are employees of
the
Company. Apogee reserves the right to determine the method, manner and means
by
which the services will be performed. Apogee shall not be entitled to employ
anyone other than Executive to perform the services provided by this Agreement,
without the express written consent of the Company. Unless specifically
requested by the Company, Apogee is not required to perform the services during
a fixed hourly or daily time.
8.
Miscellaneous.
(a)
Governing Law;
Interpretation. This Agreement will be governed by the substantive laws of
the
State of New Jersey applicable to contracts entered into and fully performed
in
such jurisdiction. The headings and captions of the Sections of this Agreement
are for convenience only and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof. This Agreement will be
construed as a whole, according to its fair meaning, and not in favor of or
against any party, regardless of which party may have initially drafted certain
provisions set forth herein.
(b)
Notices. Any
notice, request, claim or other communication required or permitted hereunder
will be in writing and will be deemed to have been duly given if delivered
by
hand or if sent by Federal Express to Apogee or to the Company at its corporate
address.
(c)
Entire Agreement;
Amendments. This Agreement constitutes the final and complete expression of
all
of the terms of the understanding and agreement between the parties hereto
with
respect to the subject matter hereof, and this Agreement replaces and supersedes
any and all prior or contemporaneous negotiations, communications,
understandings, obligations, commitments, agreements or contracts, whether
written or oral, between the parties respecting the subject matter hereof.
This
Agreement may not be modified, amended, altered or supplemented except by means
of the execution and delivery of a written instrument mutually executed by
both
parties.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
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APOGEE
HOLDINGS INC.
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By:
/s/
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By:
/s/
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