MANAGEMENT SERVICES AGREEMENT
This agreement dated as of December 22, 1995 is among Xxxxxxx Waste Systems,
Inc. (the "Company"), BCI Growth III, L.P. ("BCI"), North Atlantic Venture Fund,
L.P. ("NAV") and Vermont Venture Capital Fund, L.P. ("VVCF"). BCI, NAV and VVCF
are sometimes hereinafter referred to as the "Advisors".
Background
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The Advisors are experienced in working with privately held companies
such as the Company and in providing financial advisory services to such
companies for purposes of enhancing shareholder value and positioning such
companies for initial public offerings or sale.
The Company wishes to retain the Advisors to provide such services.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company and the Advisors hereby agree as
follows:
1. The Advisors shall provide such financial advisory services to the
Company from time to time as the Company may reasonably request in order to
assist the Company in enhancing shareholder value and positioning the Company
for an initial public offering or sale. Such services shall include, without
limitation, the following:
a. reviewing the business and operations of the Company and analyzing its
current and projected financial and operating performance;
b. advising the Company on various financing strategies;
c. evaluating the financing proposals that the Company may consider from
time to time, including formulating negotiation strategy and assisting in
negotiations, as requested;
d. advising the Company on the selection of underwriters and the
appropriate timing for an initial public offering, if requested by the Company;
and
e. assisting and advising the Company on any other matters related to the
closing of any financing transaction in which the Company may be engaged.
2. In consideration of the Advisors' agreement to provide the foregoing
services, the Company shall pay to the Advisors a mutually acceptable fee. Such
fee
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shall be allocated among the Advisors in such proportions as they may agree
among themselves and shall be payable only upon the following events:
a. Upon the closing of the sale of shares of Class A Common Stock of the
Company at a price at least equal to 175% of the then applicable Conversion
Price of the Series D Preferred Stock (as defined in the Company's Amended and
Restated Certificate of Incorporation) in a public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
resulting in at least $20 million of gross proceeds to the Corporation;
b. Upon (i) a merger or consolidation of the Company with or into any
other corporation or corporations, other than (a) a merger of consolidation of a
subsidiary of the Company with or into the Company or with or into any other
subsidiary or (b) a merger in which the Company is the surviving corporation and
which does not result in more than 50% of any class of the capital stock of the
Company outstanding immediately after the effective date of such merger being
owned of record or beneficially by persons other than the holders of such
capital stock immediately prior to such merger; (ii) the sale of all or
substantially all the assets of the Company; (iii) a sale, lease, transfer or
other disposition (or the last such sale, lease, transfer or other disposition
in a series of related transactions) resulting in the transfer of more than 50%
of the outstanding capital stock of the Company to an unrelated and unaffiliated
third party purchaser; or (iv) any other transaction (or the last such
transaction in a series of related transactions) resulting in the transfer by
Xxxx X. Xxxxxxx and/or Xxxxxxx X. Xxxxxxx to any one or more persons of an
aggregate of more than twenty percent (20%) of the shares of any class of the
Company's stock held by Xxxx X. Xxxxxxx and/or Xxxxxxx X. Xxxxxxx, or which
creates in favor of any one or more persons the right, directly or indirectly,
to acquire from Xxxx X. Xxxxxxx and/or Xxxxxxx X. Xxxxxxx shares which in the
aggregate represent more than twenty percent (20%) of the shares of any class of
the Company's stock held by Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx; or
c. upon the repurchase by the Company after December 31, 2000 of the
warrants dated July 26, 1993 and May 25, 1994, or of the shares of Common Stock
issued upon the exercise of such warrants, pursuant to the terms of the
Repurchase Agreement dated as of December 22, 1995 between the Company and the
holders of such warrants.
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IN WITNESS WHEREOF, the undersigned hereby execute this Agreement under
seal as of the date set forth above.
XXXXXXX WASTE SYSTEMS, INC.
By:
--------------------------------
BCI GROWTH III, L.P.
By:
--------------------------------
NORTH ATLANTIC VENTURE FUND, L.P.
By:
--------------------------------
VERMONT VENTURE CAPITAL FUND, L.P.
By:
--------------------------------
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IN WITNESS WHEREOF, the undersigned hereby execute this Agreement under
seal as of the date set forth above.
XXXXXXX WASTE SYSTEMS, INC.
By:
--------------------------------
BCI GROWTH III, L.P.
BY: TEANECK ASSOCIATES GENERAL
PARTNER
By:
--------------------------------
Xxxxxx X. Xxxxx
General Partner
NORTH ATLANTIC VENTURE FUND, L.P.
By:
--------------------------------
VERMONT VENTURE CAPITAL FUND, L.P.
By:
--------------------------------
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IN WITNESS WHEREOF, the undersigned hereby execute this Agreement under
seal as of the date set forth above.
XXXXXXX WASTE SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
BCI GROWTH III, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
NORTH ATLANTIC VENTURE FUND, L.P.
BY: NORTH ATLANTIC CAPITAL
PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
General Partner
VERMONT VENTURE CAPITAL FUND, L.P.
BY: VERMONT VENTURE CAPITAL
PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
General Partner
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