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EXHIBIT 10.30
MANAGEMENT AGREEMENT
This Agreement dated as of the 5th day of February, 1997, by
and between
ANCHOR GLASS ACQUISITION CORPORATION, a Delaware corporation
("Anchor")
A N D
G & G INVESTMENTS, INC., a Delaware corporation ("G & G").
WHEREAS, G & G has agreed to provide Anchor with general
management and administrative services ("Services") for the consideration stated
herein and Anchor wishes to have access to the Services for an agreed-upon
period for the consideration stated herein; and
WHEREAS, the parties wish to set out the particulars of, and
the compensation to be paid to G & G in consideration for the Services;
NOW, THEREFORE, this Agreement witnesses that for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed by the parties as follows:
ARTICLE 1
DEFINITIONS
1. DEFINITIONS
Where used herein, the following terms shall have the
following meanings, respectively:
(a) "AFFILIATE" as applied to any Person, means any other
person directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means (i) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (ii) the
ownership of more than 10% of the voting securities of that Person, but does
not, for purposes of this Agreement, include Anchor;
(b) "AGREEMENT" means this Management Agreement dated as of
the ___ day of February, 1997 between Anchor and G & G, as the same may be
amended from time to time, and references to "hereof" and "hereunder" refer to
this Agreement as a whole and not to any section or article of this Agreement;
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(c) "BOARD" means the board of directors of Anchor as
constituted from time to time;
(d) "BUSINESS DAY" means any day excluding Saturday, Sunday or
any day which is a legal holiday under the laws of New York, New York or is a
day on which banking institutions therein located are authorized to or required
by law or other governmental order to close;
(e) "COSTS" means all reasonable out-of-pocket expenses
incurred by G & G and its Affiliates in connection with providing the Services,
including, in the event that an employee of G & G or an Affiliate is assigned to
work on a full-time basis for Anchor, the full amount of such employee's wages
and benefit costs during such period of full-time employment by Anchor;
(f) "CREDIT AGREEMENT" means the Credit Agreement of even date
herewith among Anchor, the financial institutions listed from time to time on
Schedule I thereto, Bankers Trust Company, as an issuing bank, BT Commercial
Corporation, as Co-Syndication Agent and Agent and PNC Bank as Co-Syndication
Agent and Issuing Bank.
(g) "EFFECTIVE DATE" means February 5, 1997.
(h) "INDENTURE" means an indenture relating to the sale of the
"Permanent Senior Notes" (as defined in the Credit Agreement").
(i) "SENIOR CREDIT AGREEMENT" means the Credit Agreement of
even date herewith among Anchor, the Lenders named therein and Bankers Trust
Company as Agent.
ARTICLE 2
OBJECTIVES AND SERVICES
2.1 OBJECTIVES
G & G will provide the Services described herein, in
accordance with the direction of the Board, for the purpose of assisting Anchor
in achieving the following objectives:
(a) meeting its financial obligations promptly and on a
continuing basis;
(b) improving share value and value components, such as
earnings per share and cash flow;
(c) ensuring the long-term operating and financial
strength of Anchor as an independent operating
entity; and
(d) optimizing the opportunities for the employees of
Anchor.
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G & G will perform its obligations under this Agreement
reasonably, in good faith and with a view to the best interests of Anchor and do
all things and take all actions as may be commercially reasonable including,
without limitation, providing Anchor with reasonable access during normal
business hours to G & G, its personnel and other resources.
2.2 SERVICES
In performing this Agreement, G & G will render the following
Services from time to time:
(a) providing sales support, including advising with
respect to the reorganization of the sales force of
Anchor, making direct sales calls to customers and
assisting Anchor in seeking out appropriate sales
agency arrangements;
(b) assisting Anchor in building relationships with
creditors, suppliers and customers;
(c) assisting in improving procurement of raw materials
and services, including negotiating supply agreements
and dealing with consultants with a view to lowering
costs;
(d) financial management support, including reviewing
Anchor's systems and assisting Anchor in implementing
improvements to such systems relating to financial
reporting;
(e) technological support, including providing to Anchor,
as required, all technological enhancements derived
or obtained by G & G or its Affiliates and seeking
solutions to future technological requirements;
(f) operational support, including productivity
improvements and process design, quality control and
production scheduling;
(g) support in designing, funding and completing capital
expenditure requirements to improve operating
efficiency and profitability;
(h) assisting Anchor in recruiting qualified full-time
employees for Anchor to fill senior management
positions and training Anchor personnel so that
Anchor will be in a position to operate
independently; and
(i) such other support as may be reasonably required by
Anchor, having regard to the capabilities of G & G
and its Affiliates.
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2.3 AFFILIATES
G & G acknowledges that it is wholly responsible for the
compliance by its employees, its Affiliates and the employees of its Affiliates
with all of the terms of this Agreement. G & G will deliver to Anchor promptly
after the Effective Date, undertakings by each of its Affiliates providing
Services to comply with Section 5.6 and to look exclusively to G & G to recover
its out-of-pocket expenses.
ARTICLE 3
MANAGERIAL FEE
3.1 SERVICES PROVIDED
G & G agrees to provide to Anchor the Services described in
Section 2.2. Further, G & G agrees to provide appropriate personnel to Anchor as
and when required for the proper operation of Anchor (such personnel to be
selected at G & G's sole discretion), to cooperate fully with Anchor's Board and
the management of Anchor, and, if requested, to report on a quarterly basis to
Anchor's Board regarding the services G & G has provided to Anchor.
3.2 REIMBURSEMENT OF COSTS AND MANAGERIAL FEE
(a) Anchor agrees to reimburse G & G in cash for all
out-of-pocket Costs incurred in providing the
Services together with a reasonable administrative
charge not to exceed 10% of such Costs. G & G shall
keep a record of all out-of-pocket Costs incurred by
G & G in providing the Services to Anchor in each
calendar quarter, and shall deliver such record,
together with a description of the out-of-pocket
Costs incurred during such period, to Anchor on or
before the tenth Business Day following each calendar
quarter following the Effective Date, during the term
of this Agreement. Such Costs shall be reimbursed by
Anchor promptly following receipt of G & G's
statement and any requested supporting documentation
reasonably requested by Anchor.
(b) Anchor agrees to pay to G & G the managerial fee (the
"Managerial Fee") as follows:
Period Amount
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The Effective Date of this Agreement to the first anniversary
of the Effective Date...................................................... $3,000,000
The first anniversary of the Effective Date to
the second anniversary of the Effective Date............................... $3,000,000
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The second anniversary of the Effective Date to the third
anniversary of the Effective Date.......................................... $3,000,000
(c) Subject to the last sentence of this Section 3.2(c),
the Managerial Fee shall be paid in equal quarterly
installments of $750,000 on or before the last day of
each calendar quarter during the term hereof
commencing with the calendar quarter ended March 31,
1997. Where this Agreement is in effect for less than
a full calendar quarter, the Managerial Fee shall be
calculated on the basis of the number of days in such
calendar quarter and the number of days in which this
Agreement was in effect. For so long as any of the
Credit Agreement, the Senior Credit Agreement and/or
the Indenture are in effect, the Managerial Fee shall
only be paid as and to the extent permitted therein,
and any amount not so permitted to be paid shall
accrue until so permitted to be paid.
ARTICLE 4
TERM OF AGREEMENT
4.1 TERM OF AGREEMENT
(a) The initial term of this Agreement shall begin on the
Effective Date and expire on the third anniversary of the
Effective Date. Thereafter, this Agreement shall be
automatically renewed for one year terms on the expiry of the
then-current term, unless either party provides, pursuant to
Section 5.7 hereof, written notice to the other party of its
intention not to renew this Agreement at least six months
prior to the expiry of the then-current term. Anchor and G & G
agree that such six month notice is reasonable.
(b) This Agreement may be terminated at any time prior to the end
of any term by notice in writing given by Anchor if:
(i) G & G becomes insolvent, makes any assignment under
any bankruptcy or insolvency law or if any creditor
commences proceedings under applicable bankruptcy or
insolvency laws against G & G and such action shall
not have been terminated within sixty (60) days from
the date of such assignment or commencement;
(ii) G & G becomes otherwise incapable of performing its
duties hereunder, or
(iii) G & G is no longer controlled in fact by X. X.
Xxxxxxxx.
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ARTICLE 5
MISCELLANEOUS PROVISIONS
5.1 NO OTHER COMPENSATION ARRANGEMENTS
It is agreed to, by and between the parties hereto that other
than the specific compensation provided for in this Agreement, there are no
other compensation arrangements or Agreements concerning compensation currently
outstanding as between G & G and Anchor.
5.2 APPLICABLE LAW
This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware without regard to the principles of
conflict of laws.
5.3 REMEDIES
In the event that either G & G or Anchor has defaulted in the
performance of any material obligation hereunder and such
default has not been cured within 45 days after written notice
thereof has been given, then:
(i) if the defaulting party is G & G, Anchor may
terminate this Agreement,
(ii) if the defaulting party is Anchor, G & G may
terminate this Agreement,
and the rights of the parties thereafter shall be limited to
the recovery of any amounts of money, including direct damages
for non-performance or gross negligence occurring during the
period prior to that termination.
5.5 CURRENCY
All references to dollar figures herein shall be to U.S.
dollars.
5.6 CONFIDENTIALITY
G & G will treat as confidential and not disclose to any third
party, except as may be reasonably considered to be in the best interests of
Anchor, or use for any purpose which would be detrimental to Anchor, any
confidential or proprietary information of Anchor.
5.7 NOTICES
Unless otherwise provided herein, any notice or other
communications herein required or permitted to be given shall be in writing and
may be personally served,
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telecopied, telexed or sent by mail and shall be deemed to have been given when
delivered in person, upon receipt of telecopy or telex against receipt of answer
back or four Business Days after depositing it in the mail, registered or
certified, with postage prepaid and properly addressed; provided that notices
shall not be effective until received. For the purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered as provided in
this Section 5.7) shall be set forth below.
(a) in the case of Anchor, at
Anchor Glass Acquisition Corporation
One Anchor Plaza
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, XX 00000-0000
Facsimile No.: (000)-000-0000
Attention: Xxxx X. Xxxx,
Senior Vice President and Chief Financial Officer
(b) in the case of G & G, at:
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxxxxx,
Chairman and President of G & G
Any such notice, direction or other instrument, if delivered
personally, shall be deemed to have been given and received on the date on which
it was delivered and, if mailed, shall be deemed to have been given and received
on the third day (which is not a Saturday, Sunday or public holiday) after it
was mailed. Any such notice, direction or other instrument transmitted by fax or
other form of recorded communication shall be deemed to have been given and
received on the date of its transmission, provided that if such date is a
Saturday, Sunday or public holiday, or if it is transmitted or received after
the end of normal business hours, then it shall be deemed to have been given and
received at the opening of business on the next day following the transmission
thereof which is not a Saturday, Sunday or public holiday.
5.8 PRIOR AGREEMENTS
This Agreement supersedes all prior Agreements as between the
parties with regard to the subject matter hereof.
5.9 SEVERABILITY
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining
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provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
5.10 HEADINGS
Section and Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
5.11 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
5.12 CONSENT TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
A. Any legal action or proceeding with respect to this Agreement may be
brought in the courts of the State of Delaware or the United States District
Court for the District of Delaware, and, by execution and delivery of this
Agreement, each of the parties to this Agreement hereby irrevocably accepts for
itself and in respect of its respective property, generally and unconditionally,
the jurisdiction of the aforesaid courts. Each of the parties to this Agreement
hereby further irrevocably waives any claim that any such courts lack
jurisdiction over such party, and agrees not to plead or claim, in any legal
action or proceeding with respect to this Agreement brought in any of the
aforesaid courts, that any such court lacks jurisdiction over such party. Each
of the parties to this Agreement irrevocably consents to the service of process
in any such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to such party at its respective address for
notices pursuant to Section 5.7, such service to become effective 30 days after
such mailing. To the extent permitted by law, each of the parties to this
Agreement hereby irrevocably waives any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder that service of process was in any way invalid or
ineffective. Nothing herein shall affect the right of any party to this
Agreement to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against any party in any other
jurisdiction.
B. Each of the parties to this Agreement hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to in clause A above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
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C. Each of the parties to this Agreement hereby irrevocably waives all
right to a trial by jury in any action, proceeding or counterclaim arising out
of or relating to this Agreement or the transactions contemplated hereby or
thereby.
5.13 AMENDMENTS AND WAIVERS
No amendment, modification, termination or waiver of any term or
provision of this Agreement, shall be effective without the prior written
concurrence of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
ANCHOR GLASS ACQUISITION
CORPORATION
By: /s/ X. Xxxx May
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G & G INVESTMENTS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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