EXHIBIT 10.1
MANAGEMENT AGREEMENT
AGREEMENT made as of February 5, 2001 by and between PMD GROUP INC.,
a Delaware corporation (the "CORPORATION") and DLJ Merchant Banking
Partners III, L.P., a Delaware limited partnership ("DLJMB").
WHEREAS, DLJMB Funding III, Inc., a Delaware corporation and an
affiliate of DLJMB ("FUNDING") is a party to the Stockholders Agreement
dated as of November 28, 2000 (as amended, the "STOCKHOLDERS AGREEMENT")
among PMD Group Holdings Inc., PMD Investors I LLC, PMD Investors II,
Inc., Funding and DB Capital/PMD Investors, LLC;
WHEREAS, pursuant to the Stockholders Agreement, Funding or other
affiliates of Credit Suisse Group designated by Funding shall be entitled to
receive certain fees as provided in Section 3.6 of the Stockholders Agreement
and Schedule 3.6 thereof;
WHEREAS, DLJMB is an affiliate of Credit Suisse Group that Funding has
designated to receive a portion of such fees as provided herein;
WHEREAS, the parties have agreed to enter into this agreement to evidence
the Corporation's obligations to pay such fees to DLJMB, upon the terms and
conditions set forth herein.
NOW THEREFORE, it is mutually agreed as follows:
1. The term of this agreement shall commence on November 28, 2000 and
continue for so long as provided in the Stockholders Agreement. As compensation
for the valuable services and advice to the Corporation to be provided by the
directors designated by DLJMB, Funding or any of their respective affiliates
pursuant to the Stockholders Agreement, and for certain costs associated with
the ongoing monitoring and management of the investment in the Corporation, the
Corporation will pay, and DLJMB will accept, for so long as this Agreement
continues in effect and for so long as payment of interest and principal are
being paid on a current basis on the Corporation's senior subordinated notes, a
director and monitoring fee of $1,075,000 payable per annum quarterly in
advance, on the first day of each calendar quarter, commencing as of April 1,
2001. If at any time the Corporation is not current with respect to payments of
interest and principal on its senior subordinated notes, no director and
monitoring fee shall be currently payable; rather, such fees shall accrue until
such time as the Corporation is current on such interest and principal payments,
at which time all accrued and unpaid fees hereunder shall be paid by the
Corporation. The Corporation also agrees to the provisions with respect to
indemnifying DLJMB and the other matters set forth in Annex A hereto, which is
incorporated by reference into this Agreement (the "INDEMNIFICATION AGREEMENT").
It is the understanding of the parties that DLJMB and/or its affiliates
may be involved with potential acquisitions, mergers, financings or other major
transactions
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involving the Corporation, in which case DLJMB and/or its affiliates shall be
entitled to such compensation, in addition to the director and monitoring fee
provided above, as the Corporation and DLJMB and/or its affiliates shall
mutually agree, in each case consistent with the Stockholders Agreement.
In addition to the aforementioned fees, the Corporation shall reimburse
DLJMB for its reasonable out-of-pocket costs and expenses incurred in connection
with the performance of the service provided hereunder.
No advice rendered by DLJMB in its advisory role hereunder, whether formal
or informal, may be disclosed, in whole or in part, or summarized, excerpted
from or otherwise referred to without DLJMB's prior written consent. In
addition, DLJMB's advisory role hereunder may not be otherwise referred to
without its prior consent.
2. Any notice required to be given hereunder shall be in writing and shall
be deemed sufficient if delivered in person or mailed by certified mail as
follows: if to the Corporation, to it at its office at PMD Group Inc., 0000
Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000 or such other address as the Corporation
may hereafter designate for that purpose; and if to DLJMB, to it at its office
x/x XXX Merchant Banking Partners, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
such other address as DLJMB may hereafter designate for that purpose.
4. In connection with this engagement, DLJMB and/or its affiliates will be
acting as independent contractors and not in any other capacity, with duties
owing solely to the Corporation.
3. This Agreement, together with the Indemnification Agreement, the
Stockholders Agreement and a separate agreement providing for the payment of
$500,000 per annum to Credit Suisse First Boston Corporation for the services
provided thereunder, constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, both written and oral, with
respect to the subject matter hereof. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, including any corporation into which the Corporation shall consolidate
or merge or to which it shall transfer substantially all of its assets. 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date and year first above written.
PMD GROUP INC.
By:____________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS III,
L.P.
By: DLJ Merchant Banking III, Inc.,
its General Partner
By:____________________________
Name:
Title:
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ANNEX A - INDEMNIFICATION AGREEMENT
As part of the consideration for the agreement of DLJMB to furnish its
services under this Agreement, the Corporation hereby agrees to indemnify and
hold harmless DLJMB and its affiliates and the respective managing directors,
officers, directors, investors, shareholders, members, partners, employees and
agents of, and persons controlling, DLJMB or any of its affiliates within the
meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Act of 1934, as amended, and each of their
respective successors and assigns (collectively, the "INDEMNIFIED PERSONS") from
and against all claims, liabilities, expenses, losses or damages (or actions in
respect thereof) related to or arising out of actions taken (or omitted to be
taken) by DLJMB pursuant to the terms of this Agreement, or DLJMB's role in
connection therewith; PROVIDED, HOWEVER, that the Corporation shall not be
responsible for any claims, liabilities, expenses, losses and damages to the
extent that it is finally judicially determined that they result primarily from
actions taken or omitted to be taken by DLJMB in bad faith or due to DLJMB's
gross negligence or willful misconduct. If for any other reason (other than the
bad faith, gross negligence or willful misconduct of DLJMB as provided above)
the foregoing indemnity is unavailable to the indemnified persons or
insufficient to hold the indemnified persons harmless, then the Corporation
shall contribute to the amount paid or payable by the indemnified persons as a
result of such claim, liability, expense, loss or damage in such proportion as
is appropriate to reflect not only the relative benefits received by the
Corporation on the one hand and DLJMB on the other, but also the relative fault
of the Corporation and DLJMB, as well as any relative equitable considerations,
subject to the limitation that in any event DLJMB's aggregate contribution to
all claims, expenses, losses, liability and damages shall not exceed the amount
of fees actually received by DLJMB pursuant to this Agreement. Promptly after
receipt by DLJMB of notice of any complaint or the commencement of any action or
proceeding with respect to which indemnification may be sought against the
Corporation, DLJMB will notify the Corporation in writing of the receipt or
commencement thereof, but failure to notify the Corporation will relieve the
Corporation from any liability which it may have hereunder only if, and to the
extent that, such failure results in the forfeiture of such substantial rights
and defenses, and will not in any event relieve the Corporation from any other
obligation to any indemnified person other than this Indemnification Agreement.
The Corporation shall assume the defense of such action (including payment of
fees and disbursements of counsel) insofar as such action shall relate to any
alleged liability in respect of which indemnity may be sought against the
Corporation. DLJMB shall have the right to employ separate counsel in any such
action and to participate in defense thereof, but the fees and disbursements of
such counsel shall be at the expense of DLJMB unless employment of such counsel
has been specifically authorized by the Chief Executive Officer of the
Corporation in writing. The Corporation shall pay the fees and expenses of one
separate counsel for DLJMB and any other indemnified persons if the named
parties to any such action (including any impleaded parties) include the
Corporation (or any of the directors of the Corporation) and DLJMB and (i) in
the good faith judgment of DLJMB the use of joint counsel would present such
counsel with an actual or potential conflict of interest or (ii) DLJMB shall
have been advised by counsel that there may be one or more legal
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defenses available to it which are different from or additional to those
available to the Corporation (or the director(s)). The Corporation will not,
without DLJMB's (or CSFB's, as applicable) prior written consent, settle,
compromise, consent to the entry of any judgment in or otherwise seek to
terminate any action, claim, suit, investigation or proceeding in respect of
which indemnification may be sought hereunder (whether or not any Indemnified
Person is a party thereto) unless such settlement, compromise, consent or
termination includes a release of each Indemnified Person from any liabilities
arising out of such action, claim, suit, investigation or proceeding. The
Company will not permit any such settlement, compromise, consent or termination
to include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an Indemnified Person, without such
Indemnified Person's prior written consent. The Corporation shall not be liable
to indemnify any person for any settlement of any claim or action effected
without written consent of the Chief Executive Officer of the Corporation, which
consent shall not be reasonably withheld. In addition, the Corporation hereby
agrees to reimburse DLJMB and each other indemnified person for all expenses
(including reasonable fees and disbursements of counsel if the Corporation does
not assume the defense of such action) as they are incurred by DLJMB, or any
indemnified person in connection with investigating, preparing or defending any
such action or claim. DLJMB shall have no liability to the Corporation or any
other person in connection with the services which they render pursuant to this
Agreement, except for DLJMB's bad faith, gross negligence or willful misconduct
judicially determined as aforesaid. The indemnification, contribution and
expense reimbursement obligation the Corporation has under this paragraph shall
be in addition to any liability the Corporation may otherwise have. ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING IN CONNECTION
WITH OR AS A RESULT OF EITHER DLJMB'S ENGAGEMENT OR ANY MATTER REFERRED TO IN
THIS AGREEMENT IS HEREBY WAIVED BY THE PARTIES HERETO. THE PROVISIONS OF THIS
ANNEX A SHALL SURVIVE ANY TERMINATION OR COMPLETION OF THE ENGAGEMENT PROVIDED
BY THIS AGREEMENT.
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