sciens
Exhibit 10.1
sciens
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 000 0000 phone 000 000 0000 fax
July 9, 2007
Private & Confidential
LTGEN Xxxxxxx X. Xxxx
President and Chief Executive Officer
Colt Defense LLC
000 Xxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
Dear Lt. Gen. Keys:
This letter (the “Agreement”) will confirm the basis upon which Colt Defense LLC
(“Colt” or the “Company”) has engaged Sciens Management LLC (“Sciens”) to provide
investment banking, corporate and strategic advisory services (the “Services”). As of the
date hereof, that certain letter agreement, dated as of June 25, 2007 (the “Original
Agreement”), between Sciens and the Company shall be terminated other than (1) any fees and
expenses accrued but not paid to Sciens prior to the date hereof, which shall remain payable in
accordance with their terms, and (2) any terms under the Original Agreement which expressly provide
for their survival.
Section 1 — Fees: There will be an annual cash retainer of $350,000 (the “Base
Fee”) paid monthly in advance by Colt commencing from July 1, 2007 and such other additional
fees as the parties may mutually agree in connection with a specific transaction for which Services
are rendered. Except in connection with a Termination for Cause (as defined below), if this
Agreement is terminated by the Company prior to the expiration of its Initial Term or any
subsequent term (if the Agreement has been extended for such subsequent term), a termination fee
equal to the remaining Base Fee payments due during the Initial Term or the then current term of
the Agreement, as applicable, shall be payable upon such termination, following which payment no
other payment of fees shall be due with respect to this Agreement.
Section 2 — Expenses: In addition to any fees that may be payable to Sciens
hereunder, Colt hereby agrees, from time to time upon request, to reimburse
Sciens for all reasonable fees and disbursements of Sciens’ counsel and all of Sciens’
reasonable travel and other out-of-pocket expenses incurred in connection with the Services.
Section 3 — Termination of Engagement: The initial term of this Agreement
will be five years from the date hereof (the “Initial Term”) and,
thereafter, this Agreement will automatically renew for an additional 12 months; provided, however, either party
may terminate this Agreement upon 60 days’ prior written notice. Notwithstanding the foregoing, the
Company may terminate this Agreement upon 30 days’ prior written notice to Sciens for the willful
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misconduct of Sciens (such an event referred to herein as “Termination for Cause”). The
provisions of Annex A, attached hereto, and the obligation to pay any accrued fees or expenses
payable pursuant to Sections 1 and 2 hereof shall survive the termination of this Agreement.
Section 4 — Annex A: Set forth on Annex A are additional terms of this
Agreement.
[Remainder of Page Intentionally Blank]
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If you are in agreement with the foregoing, please sign and return the attached copy of this
Agreement, whereupon this Agreement shall become effective as of the date hereof.
| Very Truly Yours, | ||||||
| SCIENS MANAGEMENT, LLC | ||||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Title: Managing Member | ||||||
AGREED TO:
COLT DEFENSE LLC
By: |
/s/ Xxxxxxx X. Xxxx | |||
| Title: President and Chief Executive Officer |
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Annex A
As a material part of the consideration for the agreement of Sciens to furnish its services under
the Agreement, the Company agrees to indemnify and hold harmless Sciens and its affiliates, and
their respective past, present and future directors, officers, shareholders, members, employees,
agents and controlling persons within the meaning of either Section 15 of the Securities Act of
1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (collectively,
the “Indemnified Parties”), to the fullest extent lawful, from and against any and all
losses, claims, damages or liabilities (or actions in respect thereof), joint or several, arising
out of or related to the Agreement, any actions taken or omitted to be taken by an Indemnified
Party (including acts or omissions constituting ordinary negligence) in connection with the
Agreement, or any transaction or proposed transaction contemplated for which Services are provided.
In addition, the Company agrees to reimburse the Indemnified Parties for any legal or other
expenses reasonably incurred by them in respect thereof at the time such expenses are incurred;
provided, however, the Company shall not be liable under the foregoing indemnity
and reimbursement agreement for any loss, claim, damage or liability which is finally judicially
determined to have resulted primarily from the gross negligence of any Indemnified Party and in the
event of any such determination, Sciens shall immediately refund to the Company any and all amounts
paid under Section 1 of the Agreement.
If for any reason the foregoing indemnification is unavailable to any Indemnified Party or
insufficient to hold it harmless, the Company shall contribute to the amount paid or payable by the
Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received (or anticipated to be
received) by the Company, on the one hand, and Sciens, on the other hand, in connection with the
Services rendered by Sciens. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or otherwise, then the Company shall contribute to such
amount paid or payable by any Indemnified Party in such proportion as is appropriate to reflect not
only such relative benefits; but also the relative fault of the Company, on the one hand, and
Sciens, on the other hand, in connection therewith, as well as any other relevant equitable
considerations. Notwithstanding the foregoing, the aggregate contribution of all Indemnified
Parties to any such losses, claims, damages, liabilities and expenses shall not exceed the amount
of fees actually received by Sciens pursuant to the Agreement.
The Company shall not effect any settlement or release from liability in connection with any matter
for which an Indemnified Party would be entitled to indemnification from the Company, unless such
settlement or release contains a release of the Indemnified Parties reasonably satisfactory in form
and substance to Sciens. The Company shall not be required to indemnify any Indemnified Party for
any amount paid or payable by such party in the settlement or compromise of any claim or action
without the Company’s prior written consent, such consent not to be unreasonably withheld, delayed
or conditioned.
Prior to entering into any agreement or arrangement with respect to, or effecting, any (i) merger,
statutory exchange or other business combination or proposed sale, exchange,
dividend or other distribution or liquidation of all or a significant proportion of its assets, or
(ii) significant recapitalization or reclassification of its outstanding securities that does not
directly or indirectly provide for the assumption of the obligations of the Company set forth in
this Agreement, the
Annex A-1
Company will notify Sciens in writing thereof (if not previously so notified) and, if requested by
Sciens, shall arrange in connection therewith alternative means of providing for the obligations of
the Company set forth herein, including the assumption of such obligations by another party,
insurance, surety bonds or the creation of an escrow, in each case in an amount and upon terms and
conditions reasonably satisfactory to Sciens.
The Company further agrees that neither Sciens nor any other Indemnified Party shall have any
liability, regardless of the legal theory advanced to the Company or any other person or entity
(including the Company’s equity holders and creditors) related to or arising out of Sciens’
engagement, except for any liability for losses, claims, damages, liabilities or expenses incurred
by the Company which are finally judicially determined to have resulted primarily from the gross
negligence of any Indemnified Party.
The indemnity, reimbursement, contribution and other obligations and agreements of the Company set
forth herein shall apply to any modifications of the Agreement, shall be in addition to any
liability which the Company may otherwise have, and shall be binding upon and inure to the benefit
of any successors, permitted assigns, heirs and personal representatives of the Company and each
Indemnified Party.
In order to enforce its tight to indemnification under this Agreement, Sciens shall give the Chief
Executive Officer or the officer of the Company designated by the Chief Executive Officer a notice
(“Claim Notice”) of any matter which Sciens has determined has given or could give rise to
a right of indemnification under this Agreement, within 30 days of such determination, stating the
amount of the loss, if known, the method of computation thereof and a description of the claim,
action or circumstances giving rise to such indemnification obligation under this Agreement (a
“Claim”); provided, however, that the failure to provide a Claim Notice
shall not release the Company from any of its obligations to indemnify Sciens under this Agreement,
except to the extent that the Company is materially prejudiced by such failure. The Company shall,
be entitled to assume and control the defense of such Claim at its expense and through counsel of
its choice, if the Company gives notice of its intention to do so to Sciens on or prior to the date
that is ten (10) business days after the date that the Company actually received the Claim Notice.
In the event Company exercises the right to undertake any such defense against any such Claim,
Sciens shall cooperate with the Company in such defense and make available to the Company, all
witnesses, pertinent records, materials and information in possession or under control of Sciens
relating thereto as is reasonably required by the Company. Similarly, in the event Sciens is,
directly or indirectly, conducting the defense against any such Claim, the Company shall cooperate
with the Sciens in such defense and make available to Sciens, at the Company’s expense, all such
witnesses, records, materials and information in the possession or under the control of the Company
relating thereto as is reasonably required by Scions. No such Claim may be settled by Sciens
without the prior written consent of the Company, which consent shall not be unreasonably withheld,
conditioned or delayed. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of laws. The Company may
not assign this Agreement without the
prior written consent of Sciens. Sciens may assign this Agreement without the prior written consent
of the Company.
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Annex A-2
