Exhibit 10.29
ADVISORY SERVICES AGREEMENT
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This Advisory Services Agreement (the "Agreement") is made as of
December 1, 1997 by and between Koppers Industries, Inc., a Pennsylvania
corporation (the "Company"), and Saratoga Partners III, L.P., a Delaware limited
partnership ("Saratoga").
WHEREAS, the Company desired to retain Saratoga and Saratoga desired
to perform for the Company certain services;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
Section 1. Term. This Agreement shall be in effect for so long as
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Saratoga is entitled to elect a majority of the direc tors of the Company,
unless earlier terminated by written agreement between the Company and Saratoga
(the "Term").
Section 2. Services. Saratoga shall perform or cause to be performed
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such services for the Company as directed by the Board of Directors of the
Company (the "Board") and agreed upon by Saratoga, which may include the
following:
(a) identification, negotiation and analysis of acquisitions and
dispositions by the Company or its subsidiaries;
(b) negotiation and analysis of financing alternatives, including,
without limitation, in connection with acquisitions, capital expenditures and
refinancing of indebtedness;
(c) finance functions, including assistance in the of financial
projections;
(d) human resource functions, including searching and hiring of
executives; and
(e) other services for the Company upon which the Board and Saratoga
agree.
Section 3. Payment of Fees. The Company hereby agrees to:
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(a) pay to Saratoga on the date of this Agreement a fee in the amount
of $700,000 in connection with the recapitalization of the Company to be
consummated on the date of this Agreement (the "Recapitalization");
(b) during the Term, pay an advisory fee to Saratoga (or its
designee) in an amount equal to $600,000 per annum, such fee being payable
quarterly in arrears in equal installments of
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$150,000 on each January 15, April 15, July 15, October 15, commencing January
15, 1998; and
(c) during the Term, if it elects to engage Saratoga (or its
designee) to be its advisor in connection with any acquisition, disposition,
business combination, financing or other extraordinary corporate transaction
involving the Company or any of its subsidiaries, pay to Saratoga (or its
designee) a customary fee in connection therewith.
Each payment made pursuant to this Section 3 shall be paid by wire
transfer of immediately available federal funds to the account(s) specified
therefor by Saratoga.
Section 4. Expenses. The Company hereby agrees to pay on demand all
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expenses incurred by Saratoga in connection with the transactions contemplated
by this Agreement and all reasonable expenses incurred by members of the Board
(or any committee thereof) designated by Saratoga in connection with the
performance of their Board (or committee) duties.
Section 5. Indemnity and Liability. In consideration of the
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execution and delivery of this Agreement by Saratoga, the Company hereby agrees
to indemnify, exonerate and hold each of Saratoga and its affiliates, and each
of their respective partners, shareholders, affiliates, directors, officers,
fiduciaries, employees and agents and each of the partners, shareholders,
affiliates, directors, officers, fiduciaries, employees and agents of each of
the foregoing (collectively, the "Indemnitees") free and harmless from and
against any and all actions, causes of action, suits, losses, liabilities and
damages, and expenses in connection therewith, including without limitation
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnitees or any of them as a result of, or
arising out of, or relating to the Recapitalization, the execution, delivery,
performance, enforcement or existence of this Agreement or the transactions
contemplated hereby or thereby except for any such Indemnified Liabilities
arising solely on account of such In demnitee's gross negligence or willful
misconduct, and if and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. None of the Indemnitees
shall be liable to the Company or any of its affiliates for any act or omission
suffered or taken by such Indemnitee that does not constitute gross negligence
or willful misconduct.
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Section 6. Miscellaneous. (a) No amendment or waiver of any term,
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provision or condition of this Agreement shall be effective, unless in writing
and executed by each of Saratoga and the Company. No waiver on any one occasion
shall extend to or effect or be construed as a waiver of any right or remedy on
any future occasion. No course of dealing of any person nor any delay or
omission in exercising any right or remedy shall constitute an amendment of this
Agreement or a waiver of any right or remedy of any party hereto.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania without giving effect to any
choice or conflict of law provision or rule that would cause the application of
the laws of any other jurisdiction. Any dispute or controversy which arises
under this Agreement shall be resolved in accordance with the terms of
arbitration set forth on Exhibit 1 hereto.
(c) This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes any prior communication
or agreement with respect thereto.
(d) All notices, demands, and communications of any kind which any
party may require or desire to serve upon any other party under this Agreement
shall be in writing and shall be served upon such other party as specified below
by personal delivery to the address set forth for it below or to such other
address as such party shall have specified by notice to each other party or by
mailing a copy thereof by certified or registered mail, or by any reputable
overnight courier service, postage prepaid, with return receipt requested,
addressed to such party and copied persons at such addresses. In the case of
service by personal delivery, it shall be deemed complete on the first business
day after the date of actual delivery to such address. In case of service by
mail or by overnight courier, it shall be deemed complete, whether or not
received, on the third day after the date of mailing as shown by the registered
or certified mail receipt or courier service receipt. Notwithstanding the
foregoing, notice to any party or copied person of change of address shall be
deemed complete only upon actual receipt by an officer or agent of such party or
copied person.
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If to the Company, at:
Koppers Industries Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Copy to:
Xxxxxx, XxXxxxx & Xxxxxxxx, P.C.
Xxx XXX Xxxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to Saratoga, at:
Saratoga Partners III, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
(e) If in any judicial proceedings a court shall refuse to enforce
any provision of this Agreement, then such unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of such proceedings to the
extent necessary to permit the remaining provisions to be enforced.
(f) This Agreement may be executed in any number of counterparts and
by each of the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf as of the date first above written by its officer or
representative thereunto duly authorized.
KOPPERS INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxxxx
By:__________________________________
Name:
Title:
SARATOGA PARTNERS III, L.P.
By: DR Associates IV, L.P.,
Its General Partner
By: Xxxxxx, Read Inc.,
Its General Partner
/s/ Xxxxxxxxx X. Xxxxxxxx
By:__________________________________
Name:
Title:
Exhibit 1
If a dispute or controversy arises under or in connection with this
Agreement, the parties agree first to try in good faith to settle the dispute or
controversy. Any party may initiate the negotiation process by written notice
to the others, identifying the dispute or controversy and the desire for
negotiation. If the parties have not resolved the dispute or controversy by
direct negotiations within thirty (30) days of such notice, any party may
initiate arbitration as herein provided. All disputes or controversies arising
under or in connection with this Agreement which are not resolved by negotiation
shall be decided by arbitration before a single arbitrator selected by agreement
of the parties, and judgment upon the award or decision of the arbitrator may be
entered and enforced in any court of competent jurisdiction. It is specifically
intended by the parties that any equitable relief granted by an arbitrator may
be enforced in any court of competent jurisdiction. The forum of such
arbitration shall be in Pittsburgh, Pennsylvania to the exclusion of all other
jurisdictions. In the event that the parties cannot agree upon the selection of
an arbitrator, the parties agree that the American Arbitration Association in
Pittsburgh, Pennsylvania will select the arbitrator.
Arbitration Process. The arbitrator shall decide the dispute or
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controversy in accordance with the following procedures:
Within ten (10) days of the selection of an arbitrator, each party
shall submit to the arbitrator its written position (the "Initial Submission"),
provided that neither memorandum of position shall exceed 10 pages, double
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spaced, plus such other documentary evidence as the parties deem necessary.
Within ten (10) days of the delivery of the Initial Submission, each
party may submit to the arbitrator and the other party a reply memorandum (the
"Reply Submission"), provided that neither reply memorandum shall exceed 5
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pages, double spaced. In connection with the Reply Submission, neither of the
parties may submit (and the arbitrator may not accept) any additional
documentation (including affidavits).
Within ten (10) days of the expiration of the period for the delivery
of the Reply Submission, the arbitrator, if he or she deems it necessary or
advisable, may call a hearing which may be by telephone conference (the
"Hearing"). At any Hearing, the arbitrator may ask representatives and counsel
for the parties' questions with respect to the issue to be decided and positions
of the parties. In connection with the Hearing, neither of the parties may
offer (and the arbitrator may not accept) any testimony or additional
documentation (including affidavits).
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Within seven (7) days after the later to occur, if such is to occur,
of (a) the Hearing or (b) the Reply Submission, the arbitrator shall render his
or her position.
The arbitrator shall promptly notify the parties in writing of the
decision, together with the amount of any dispute resolution costs arising with
respect thereto (the "Notice of Decision"). The Notice of Decision need not
contain an explanation of the decision or grounds therefor.
The decision of the arbitrator shall be final, binding and not subject
to appeal.
All dispute resolution costs, which shall include any fee for the
arbitrator for services rendered, shall be borne equally by the parties. Each
party is to pay its own counsel fees and expenses.
