Exhibit 2
MANAGEMENT AGREEMENT
THIS AGREEMENT made as of this 18th day of April, 1997, between (DEL) U.S.
Environmental, Inc., a Delaware corporation, hereinafter called "Company", and
Swiss American Capital Management, Inc., a Florida corporation qualified to do
business in Florida ("Manager").
WHEREAS, Manager shall operate the business and affairs of the Company for
the benefit of the Shareholders; and
WHEREAS, Manager has the expertise to provide the services offered by the
Company on behalf of the Shareholders;
WHEREAS, Company desires to engage Manager to manage the operation of the
business and Manager desires to accept such engagement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, Company and Manager agree as follows:
1. Employment of Manager. Owner hereby appoints Manager and Manager hereby
accepts the appointment as manager to provide the Services.
2. Term. The services of Manager shall commence upon the date of this
Agreement, and shall continue until terminated as provided under Paragraph 7.
The terms of this Agreement are contemplated to and shall survive the date of
termination of Manager's services hereunder.
3. Manager's Duties - General. From the effective date of this Agreement
until the date of its termination, Manager shall be responsible for all
operations, regulatory compliance, sales and marketing provided by the Company.
The determination of Manager as to amounts to be expended for such purposes
shall be final and Company will make available to Manager all monies deemed
necessary by Company for Manager to fulfill its responsibilities under this
Agreement.
4. Specific Duties of Manager. During the period of this Agreement, Manager
shall use its best efforts in the management and operation of the business of
the Company so that the Company will be operated and maintained in a first
quality manner.
a. Submit before the beginning of each operating year and before the
same date of each year thereafter an estimated profit and loss statement for the
ensuing operating year, including a schedule of revenues and budget estimates in
detail for repairs, maintenance, replacements, promotional and marketing
efforts, and capital expenditures for each ensuing year. (All budget estimates
are hereinafter referred to collectively as the "Annual Plan.")
b. Establish and supervise accounting functions, with appropriate
accounting and cost control systems. Manager shall cause to be prepared and
filed all necessary reports with respect to withholding taxes, social security
taxes, unemployment insurance, disability insurance, the Fair Labor Standards
Act, and all other statements and reports pertaining to labor employed on
Company's payroll in or about the Properties, if any.
c. Make available to Company, the services of Manager's specialized
expertise through duly licensed and competent personnel which would be useful in
the performance of Manager's specific responsibilities hereunder, including its
operation of the Company in conformity with all SEC rules and regulations for
the operation of a publicly held corporation.
d. Arrange for compliance with all statutes, ordinances, laws, rules,
regulations, orders, and determinations affecting or issued in connection with
the business of Company.
5. Manager's Compensation During Operating Period. As compensation for the
services to be rendered by Manager, Company will pay to Manager on each monthly
anniversary date of this Agreement a sum to be mutually agreed upon by Company
and Manager. Company shall be responsible for all expenses which Manager incurs
in performing its duties hereunder and will make monies available to Manager on
a timely basis. Notwithstanding any other provision hereof, Manager shall be
entitled to additional reasonable compensation for services rendered to Company
at Company's request and not specified as Manager's responsibility under this
Agreement, including without limitation and by way of example the supervising of
attorneys and other professionals hired to represent Company's interests.
6. Insurance.
a. Manager shall maintain insurance of such kinds and amounts as
Company shall be required to carry pursuant, as well as any other insurance that
Company or any governmental entity shall require.
b. Periodically, Manager shall furnish Company with a schedule setting
forth the kinds and amounts of insurance then in force and the names of the
insurers, and also setting forth such additional kinds and amounts of insurance
as Manager then intends to procure. Promptly following the submission of each
such schedule, Company shall notify Manager of any change in the kinds and
amounts of insurance then in force or intended to be procured by Manager which
Company shall elect to make and Manager shall forthwith apply for and obtain, if
obtainable, endorsements to reflect any such change in the insurance then in
force and such additional kinds and amounts of insurance as Company designates.
All such additional insurance shall be obtained from such companies and through
such brokers as Company shall direct.
c. All policies of insurance shall name as the insureds thereunder
Company, Manager and such other parties as may be required by the provisions of
any mortgage, as their respective interests may appear. All policies of hazard
insurance shall include loss payment clauses in the form required by any
mortgage or lease. All insurance shall be obtained at Company's expense. The
originals of all policies of insurance and duplicates thereof shall be delivered
to Owner and to the holder of any mortgage as Company shall direct.
d. Provided Manager shall procure and keep in force all of the
procurable insurance required to be obtained by Manager pursuant to the
foregoing provisions of this Paragraph 6, neither Company nor Manager shall
assert against the other any claims for losses, damages, liability, or expenses
(including attorneys' fees) incurred or sustained by either of them, to the
extent that the same are covered by such insurance, on account of damage or
injury to person or property arising out of the ownership, operation, or
maintenance of the Properties. To the extent that the same exceed the amount
covered by such insurance, such excess shall be paid by Company.
e. Company and Manager shall each give prompt notice to the other of
any claims made against either of them in connection with the Company and shall
cooperate fully with each other and with any insurance carrier to the end that
all such claims will be properly investigated and defended. Manager shall not
hire any attorneys to defend any such claim against Company without Company's
consent.
7. Termination of Agreement. This Agreement and the employment of Manager
shall be terminated and, except as to liabilities or claims which shall have
accrued or arisen prior to such termination, all obligations hereunder shall
cease upon the happening of any of the following events:
a. If there shall be filed by Manager or Company in any court pursuant
to any statute either of the United States or of any state a petition in
bankruptcy or insolvency, or for a reorganization, or for the appointment of a
receiver or trustee of all or a substantial portion of its property, or if
Manager or Company makes an assignment for or petitions for or enters into an
arrangement for the benefit of creditors, or if a petition in bankruptcy is
filed against Manager which is not discharged within ninety (90) days
thereafter.
b. The giving of notice by Manager that it has elected, for any reason
whatsoever, not to provide the services of Manager for the operations of the
Company.
c. Upon the giving of written notice by either party to the other of
its election to terminate this Agreement, which termination shall be effective
upon appointment by Company of a successor manager for the Company, but in any
event no later than thirty (30) days after the giving of such notice.
d. The occurrence of a default hereunder on the part of any party, if
written notice of such default is given to the defaulting party and such default
is not cured within a reasonable time thereafter, not to exceed thirty (30)
days.
8. Prohibition of Assignment. Manager shall not assign this Agreement or
any of its rights hereunder; nor shall this Agreement or any of Manager's rights
or obligations hereunder be transferable on Manager's part by operation of law
or otherwise, except by merger or consolidation with another entity if the
operating personnel of the surviving entity at the time of such merger or
consolidation shall be substantially the same as the operating personnel of
Manager.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed on the day and year first above written.
WITNESSES: COMPANY:
(DEL) U.S. ENVIRONMENTAL, INC., a
Delaware corporation
/s/ Xxxxxxx Xxxxx By: /s/ Xxx X. Xxxxxx
Print Name: Xxxxxxx Xxxxx Its: President
MANAGER:
SWISS AMERICAN CAPITAL
MANAGEMENT, INC., a Florida Corp.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
Print Name: Xxxxxxx Xxxxx Its: President
