EXHIBIT 10.6
MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement") is made as of the 25th day of
November, 2002, by and between RBS Global, Inc., a Delaware corporation (the
"Company") and TC Group, L.L.C., a Delaware limited liability company
("Carlyle").
RECITALS:
WHEREAS, Carlyle, by and through its officers, employees, agents,
representatives and affiliates, has expertise in the areas of corporate
management, finance, product strategy, investment, acquisitions and other
matters relating to the business of the Company; and
WHEREAS, the Company desires to avail itself of the expertise of Carlyle in
the aforesaid areas, in which it acknowledges the expertise of Carlyle.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions herein set forth, the parties hereto agree as follows:
1. APPOINTMENT.
The Company hereby appoints Carlyle to render the advisory and consulting
services described in Section 2 hereof for the term of this Agreement.
2. SERVICES.
(a) During the term of this Agreement, Carlyle shall render to the
Company, by and through such of Carlyle's officers, employees, agents,
representatives and affiliates as Carlyle, in its sole discretion, shall
designate, in cooperation with the Chief Executive Officer, from time to time,
advisory, consulting and other services (the "OVERSIGHT SERVICES") in relation
to the operations of the Company, strategic planning, domestic and international
marketing and financial oversight and including, without limitation, advisory
and consulting services in relation to the selection, retention and supervision
of independent auditors, the selection, retention and supervision of outside
legal counsel, the selection, retention and supervision of investment bankers or
other financial advisors or consultants and the structuring and implementation
of equity participation plans, employee benefit plans and other incentive
arrangements for certain key executives of the Company.
(b) The parties hereto acknowledge that certain events will require
Carlyle to render services beyond the scope of activities which the parties
contemplate as part of the Oversight Services and for which Carlyle shall be
entitled to additional compensation hereunder. It is expressly agreed that the
Oversight Services shall not include Investment Banking Services. "INVESTMENT
BANKING SERVICES" means investment banking, financial advisory or any other
services rendered by Carlyle to the Company in connection with (i) the
acquisition by RBS Acquisition Corporation, a Delaware corporation, and certain
of its affiliates of the Rexnord Business (as such term is defined in the Stock
Purchase Agreement) pursuant to that certain Stock Purchase Agreement, dated as
of September 27, 2002, by and among RBS Acquisition Corporation and the Sellers
identified therein (the "ACQUISITION TRANSITION"),
(ii) any acquisitions and divestitures by the Company or any of its
subsidiaries, including, without limitation, the sale of substantially all of
the assets of the Company, whether by a sale of assets, the equity interests of
the Company, merger or otherwise, and the acquisition or sale of any subsidiary
or division of the Company, or (iii) the public or private sale of debt or
equity interests of the Company, or any of its affiliates or any similar
financing transactions. The Oversight Services and the Investment Banking
Services shall be referred to herein as the "SERVICES."
3. FEES.
(a) In consideration of the performance of the Oversight Services
contemplated by Section 2(a) hereof, the Company agrees to pay to Carlyle an
aggregate per annum fee (the "FEE") (i) for the period commencing on the date
hereof and continuing until December 31, 2002, an amount equal to $225,000 and
(ii) for the period commencing January 1, 2003 and continuing until such time as
this Agreement is terminated in accordance with Section 6, an amount equal to
$2,000,000 per annum. The Fee shall be payable on the date hereof for the period
set forth in subclause (i) of the preceding sentence and quarterly in advance
beginning January 1, 2003 for the period set forth in subclause (ii) of the
preceding sentence. Fee payments shall be non-refundable.
(b) In consideration of the Investment Banking Services provided to
the Company in connection with the Acquisition Transaction, the Company shall
pay to Carlyle an amount equal to U.S.$10,000,000 and shall pay Out-of-Pocket
Expenses incurred in connection with the Acquisition Transaction.
(c) In consideration of any additional Investment Banking Services
provided to the Company in connection with the events described in clauses (ii)
and (iii) of the definition of Investment Banking Services, Carlyle shall be
entitled to receive additional reasonable compensation as agreed upon by the
parties hereto and approved by a majority of the members of the board of
directors of the Company.
4. OUT-OF-POCKET EXPENSES.
In addition to the compensation payable to Carlyle pursuant to Section 3
hereof, the Company shall, at the direction of Carlyle, pay directly, or
reimburse Carlyle for, its reasonable Out-of-Pocket Expenses. For the purposes
of this Agreement, the term "OUT-OF-POCKET EXPENSES" shall mean the amounts
actually paid by Carlyle in cash in connection with its performance of the
Services, including, without limitation, reasonable (i) fees and disbursements
(including, underwriting fees) of any independent auditors, outside legal
counsel, consultants, investment bankers, financial advisors and other
independent professionals and organizations, (ii) costs of any outside services
or independent contractors such as financial printers, couriers, business
publications or similar services and (iii) transportation, per diem, telephone
calls, word processing expenses or any similar expense not associated with its
ordinary operations. All reimbursements for Out-of-Pocket Expenses shall be made
promptly upon or as soon as practicable after presentation by Carlyle to the
Company of the statement in connection therewith.
5. INDEMNIFICATION.
The Company will indemnify and hold harmless Carlyle and its officers,
employees, agents, representatives, members and affiliates (each being an
"INDEMNIFIED PARTY") from and against any and all losses, costs, expenses,
claims, damages and liabilities (the "LIABILITIES") to which such Indemnified
Party may become subject under any applicable law, or any claim made by any
third party,
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or otherwise, to the extent they relate to or arise out of the performance of
the Services contemplated by this Agreement or the engagement of Carlyle
pursuant to, and the performance by Carlyle of the Services contemplated by,
this Agreement. The Company will reimburse any Indemnified Party for all
reasonable costs and expenses (including reasonable attorneys' fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim for which the
Indemnified Party would be entitled to indemnification under the terms of the
previous sentence, or any action or proceeding arising therefrom, whether or not
such Indemnified Party is a party hereto, provided that, subject to the
following sentence, the Company shall be entitled to assume the defense thereof
at its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment. Any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense, and in any action, claim or
proceeding in which the Company, on the one hand, and an Indemnified Party, on
the other hand, is, or is reasonably likely to become, a party, such Indemnified
Party shall have the right to employ separate counsel at the Company's expense
and to control its own defense of such action, claim or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Company, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate representation
advisable. The Company agrees that it will not, without the prior written
consent of the applicable Indemnified Party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated hereby (if any Indemnified Party
is a party thereto or has been actually threatened to be made a party thereto)
unless such settlement, compromise or consent includes an unconditional release
of the applicable Indemnified Party and each other Indemnified Party from all
liability arising or that may arise out of such claim, action or proceeding.
Provided that the Company is not in breach of its indemnification obligations
hereunder, no Indemnified Party shall settle or compromise any claim subject to
indemnification hereunder without the consent of the Company. The Company will
not be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability, cost or expense is determined by a court, in
a final judgment from which no further appeal may be taken, to have resulted
solely from the gross negligence or willful misconduct of Carlyle. If an
Indemnified Party is reimbursed hereunder for any expenses, such reimbursement
of expenses shall be refunded to the extent it is finally judicially determined
that the Liabilities in question resulted solely from the gross negligence or
willful misconduct of Carlyle.
6. TERMINATION
This Agreement shall be in effect on the date hereof and shall continue
until such time as Carlyle or one or more of its affiliates collectively
control, in the aggregate, less than 10% of the equity interests of the Company,
or such earlier time as the Company and Carlyle may mutually agree. The
provisions of Sections 5, 7 and 8 and otherwise as the context so requires shall
survive the termination of this Agreement.
7. OTHER ACTIVITIES
Nothing herein shall in any way preclude Carlyle or its officers,
employees, agents, representatives, members or affiliates from engaging in any
business activities or from performing services for its or their own account or
for the account of others, including for companies that may be in competition
with the business conducted by the Company.
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8. GENERAL.
(a) No amendment or waiver of any provision of this Agreement, or
consent to any departure by either party from any such provision, shall be
effective unless the same shall be in writing and signed by the parties to this
Agreement, and, in any case, such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(b) This Agreement and the rights of the parties hereunder may not be
assigned without the prior written consent of the parties hereto; provided,
however, that Carlyle may assign or transfer its duties or interests hereunder
to a Carlyle affiliate at the sole discretion of Carlyle.
(c) Any and all notices hereunder shall, in the absence of receipted
hand delivery, be deemed duly given when mailed, if the same shall be sent by
registered or certified mail, return receipt requested, and the mailing date
shall be deemed the date from which all time periods pertaining to a date of
notice shall run. Notices shall be addressed to the parties at the following
addresses:
If to Carlyle: TC Group, L.L.C.
c/o The Carlyle Group
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxxxxx
If to the Company: RBS Global, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxx
(d) This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof, and shall supersede all
previous oral and written (and all contemporaneous oral) negotiations,
commitments, agreements and understandings relating hereto.
(e) This Agreement shall be governed by, and enforced in accordance
with, the laws of the State of New York (excluding the choice of law principles
thereof). The parties to this Agreement hereby agree to submit to the
non-exclusive jurisdiction of the federal and state courts located in the state
of Delaware in any action or proceeding arising out of or relating to this
Agreement. This Agreement shall inure to the benefit of, and be binding upon,
Carlyle and the Company (including any present or future subsidiaries of the
Company that are not signatories hereto), and their respective successors and
assigns.
(f) This Agreement may be executed in two or more counterparts, and
by different parties on separate counterparts. Each set of counterparts showing
execution by all parties shall be deemed an original, and shall constitute one
and the same instrument.
(g) The waiver by any party of any breach of this Agreement shall not
operate as or be construed to be a waiver by such party of any subsequent
breach.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as set forth below.
TC GROUP, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
RBS GLOBAL, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
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