Exhibit 10.1(c)
MANAGEMENT AGREEMENT
THIS IS A MANAGEMENT AGREEMENT, dated as of July 31, 2002 (the
"AGREEMENT"), between One Equity Partners LLC, a Delaware limited liability
company ("OEP" or the "SERVICE PROVIDER"), and OEP Imaging Operating
Corporation, a Delaware corporation (the "COMPANY").
BACKGROUND
The Company desires to retain the Service Provider to provide
business and organizational strategy, and financial and investment management
services to the Company and its subsidiaries, upon the terms and conditions
hereinafter set forth, and the Service Provider is willing to undertake such
obligations.
TERMS
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, the parties hereby agree as follows:
1. APPOINTMENT. The Company hereby engages the Service Provider, and
the Service Provider hereby agrees, in each case on the terms and conditions set
forth herein, to provide certain services to the Company as described in SECTION
3 hereof.
2. TERM. The term of the Agreement (the "TERM") shall commence on the
date hereof and shall continue until the tenth anniversary of this Agreement.
3. DUTIES OF THE SERVICE PROVIDER. The Service Provider shall provide
the Company and its subsidiaries with business and organizational strategy, and
financial and investment management services (collectively, the "SERVICES") at
such times and places as may be mutually acceptable to the Service Provider and
the Company.
3.1 EXCLUSIONS FROM "SERVICES". Notwithstanding anything in the
foregoing to the contrary, the following services are specifically excluded from
the definition of "SERVICES":
(i) INDEPENDENT ACCOUNTING SERVICES. Accounting services rendered
to the Company or the Service Provider by an independent accounting firm or
accountant (I.E., an accountant who is not an employee of the Service Provider);
(ii) LEGAL SERVICES. Legal services rendered to the Company or the
Service Provider by an independent law firm or attorney (I.E., an attorney who
is not an employee of the Service Provider); and
(iii) TRANSACTION SERVICES. Transactional services in connection
with any acquisition, divestiture, financing or other transaction in which the
Company or its subsidiaries may be, or may consider becoming, involved, it being
understood that OEP shall have the right to be first approached and to have a
thirty day discussion period concerning all opportunities to perform, for an
additional fee, any of such transaction-related services.
4. COOPERATION. The Company will cooperate with the Service Provider so
that the Service Provider may properly perform its duties hereunder.
5. COMPENSATION. As consideration payable to the Service Provider or
any of its affiliates for providing the Services to the Company, the Company
shall make the following payments to the Service Provider:
(a) On a quarterly basis in advance, a management fee of $600,000
per annum to OEP (the "MANAGEMENT FEE") payable as follows:
(i) On each October 1, January 1, April 1 and July 1 of each
fiscal year of the Company, commencing with October 1,
2002, $150,000; and
(ii) On the date hereof, a prorated portion of the Management
Fee for the period beginning on the date hereof and
ending on September 30, 2002 (I.E., an amount equal to
the product of $150,000 multiplied by a fraction, the
numerator of which is the number of days in the period
beginning on the date hereof and ending on September 30,
2002, and the denominator of which is 90).
(b) OEP may elect, by written notice to the Company, to defer cash
payment of all or any portion of the Management Fee due to the Service
Provider; any Management Fee so deferred shall be accrued and shall be
paid in cash upon the written request of OEP.
(c) Except in the event OEP elects to defer cash payment pursuant
to Section 5(b) hereof, any portion of the Management Fee not paid to the
Service Provider by the dates specified in this SECTION 5 shall accrue
interest at a rate of 8% per annum until the principal and accrued
interest is paid by the Company to the Service Provider in cash.
(d) Actual and direct out-of-pocket expenses (including reasonable
fees and disbursements of attorneys, accountants and other professionals
and consultants retained by the Service Provider in connection with the
Services provided hereunder) reasonably incurred by the Service Provider
and its personnel in performing the Services, which shall be reimbursed to
the Service Provider by the Company as promptly as practicable after the
Service Provider's rendering of a statement therefor together with such
supporting data as the Company reasonably shall require.
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6. INDEMNIFICATION.
(a) In the event that the Service Provider or any of its
affiliates, principals, partners, directors, stockholders, members,
employees, agents, representatives (collectively, the "INDEMNIFIED
PARTIES") becomes involved in any capacity in any action, proceeding or
investigation in connection with the performance by the Service Provider
of Services hereunder or as a result of being party to this Agreement, the
Company will indemnify and hold harmless the Indemnified Parties from and
against any actual or threatened claims, lawsuits, actions or liabilities
(including out-of-pocket expenses and the reasonable fees and expenses of
counsel and other litigation costs and the cost of any preparation or
investigation reasonably incurred) of any kind or nature, arising as a
result of or in connection with the performance by the Service Provider of
Services under this Agreement or as a result of being party to this
Agreement, and will periodically upon request reimburse the Indemnified
Party for its expenses as described above, except that the Company will
not be obligated to so indemnify any Indemnified Party if, and to the
extent that, such claims, lawsuits, actions or liabilities against such
Indemnified Party directly result from the recklessness, gross negligence
or willful misconduct of such Indemnified Party as admitted in any
settlement by such Indemnified Party or held in any final, non-appealable
judicial or administrative decision. In connection with such
indemnification, the Company will promptly remit or pay to the Service
Provider or other Indemnified Party any amounts which the Service Provider
certifies to the Company in writing are payable to the Service Provider or
other Indemnified Parties hereunder, provided that the Indemnified Party
undertakes in writing to repay such amounts if it is ultimately determined
that such Indemnified Party is not entitled to indemnification hereunder.
The reimbursement and indemnity obligations of the Company under this
SECTION 6 shall be in addition to any liability which the Company may
otherwise have, shall extend upon the same terms and conditions to any
Indemnified Party, as the case may be, of the Service Provider and any
such affiliate and shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the Company,
the Service Provider, and any such Indemnified Party. The foregoing
provisions shall survive the termination of this Agreement.
(b) In the event any Indemnified Party seeks indemnification
hereunder in respect of a claim resulting from the assertion of liability
by a third party (i.e., a party other than the Company or one of its
affiliates) (an "ASSERTED Liability"), the Company may elect to compromise
or defend, at its own expense and by its own counsel, any action or
proceeding in respect of such claim if (i) the claim involves solely
monetary damages, (ii) the Company expressly agrees in writing to the
Indemnified Party that, as between the two, the Company is solely
obligated to satisfy and discharge the claim, and (iii) the Company makes
reasonably adequate provision to satisfy the Indemnified Party of the
Company's ability to satisfy and discharge the claim (the foregoing
collectively, the "LITIGATION CONDITIONS"); PROVIDED, HOWEVER, that if the
parties in any action shall include both the Company and an Indemnified
Party, and the Indemnified Party shall have
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reasonably concluded that counsel selected by the Company has a conflict
of interest because of the availability of different or additional
defenses to the Indemnified Party, the Indemnified Party shall have the
right to select separate counsel to participate in the defense of such
action on its behalf, at the expense of the Company. Subject to the
foregoing, if the Company elects to compromise or defend such Asserted
Liability, it shall, within 30 days (or sooner, if the nature of the
Asserted Liability so requires) after notification of the Asserted
Liability by the Indemnified Party, notify the Indemnified Party of its
intent to do so, and the Indemnified Party shall cooperate, at the expense
of the Company, in the compromise of, or defense against, such Asserted
Liability controlled by the Company. If the Company elects not to
compromise or defend the Asserted Liability, fails to notify the
Indemnified Party of its election as herein provided, or fails to satisfy
the Litigation Conditions, the Indemnified Party may pay, compromise or
defend such Asserted Liability; provided, however, the Indemnified Party
shall not compromise or settle any such Asserted Liability in a manner
that would result in any liability to the Company without the prior
written consent of the Company (which consent will not be unreasonably
withheld or delayed). In the event the Company elects to compromise or
defend an Asserted Liability, the Indemnified Party may participate, at
its own expense, in the defense of such Asserted Liability.
7. INDEPENDENT CONTRACTORS. Nothing herein shall be construed to create
a joint venture or partnership between the parties hereto or an
employee/employer relationship. The Service Provider shall be an independent
contractor pursuant to this Agreement. Neither party hereto shall have any
express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party. Nothing in this
Agreement shall be deemed or construed to enlarge or limit the fiduciary duties
and responsibilities, if any, of OEP or any of its affiliates, officers,
directors, partners, members, employees or agents in any of their respective
capacities as stockholders or directors of the Company.
8. NOTICES. Any notice or other communications required or permitted to
be given hereunder shall be in writing and delivered by hand or mailed by
registered or certified mail, return receipt requested, or by telecopier to the
party to whom it is to be given at its address set forth herein, or to such
other address as the party shall have specified by notice similarly given.
(a) If to the Company, to it at:
Polaroid Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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(b) If to OEP, to it at:
One Equity Partners LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
9. LIABILITY. The Service Provider is not and never shall be liable to
any creditor of the Company with respect to any obligation or liability of the
Company and the Company agrees to indemnify and hold each Indemnified Party
harmless from and against any and all such claims of alleged creditors of the
Company and against all actual out of pocket costs, charges and expenses
(including reasonable attorneys fees and expenses) reasonably incurred or
sustained by any Indemnified Party in connection with any action, suit or
proceeding to which it may be made a party by any alleged creditor of the
Company. Notwithstanding anything contained in this Agreement to the contrary,
the Company agrees and acknowledges that the Service Provider and its partners,
principals, shareholders, members, directors, officers, employees and affiliates
intend to engage and participate in acquisitions and business transactions
outside of the scope of the relationship created by this Agreement and they
shall not be under any obligation whatsoever to make such acquisitions, business
transactions or other opportunities through the Company or offer such
acquisitions, business transactions or other opportunities to the Company.
10. AMENDMENT. Any amendment to this Agreement requires the written
approval of OEP and the Company.
11. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties and their successors and assigns. However, neither this
Agreement nor any of the rights of the parties hereunder may be transferred or
assigned by either party hereto, except that (i) if the Company shall merge or
consolidate with or into, or sell or otherwise transfer substantially all its
assets to, another corporation which assumes the Company's obligations under
this Agreement, the Company may assign its rights hereunder to that corporation,
and (ii) OEP may assign its rights and obligations hereunder to any of its
affiliates. Any attempted transfer or assignment in violation of this SECTION 11
shall be void.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and supersedes all prior agreements and undertakings,
oral and written, among the parties hereto with respect to the subject matter
hereof.
13. SECTION HEADINGS. The section headings contained herein are included
for convenience or references only and shall not constitute a part of this
Agreement for any other purpose.
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14. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
15. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to contracts
made and to be performed entirely within such State, regardless of the law that
might be applied under principles of conflicts of law.
16. SEVERABILITY. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
illegal, invalid or unenforceable shall substantially impair the benefits of the
remaining portions of this Agreement.
17. TAXES. The amount of any payment paid by the Company under this
Agreement shall be increased by the amount, if any, of any taxes (other than
income taxes) or other governmental charges levied in respect of such payments,
so that OEP is made whole for such taxes or charges.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and year first above written.
ONE EQUITY PARTNERS LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
OEP IMAGING OPERATING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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