EXHIBIT 10.03
AGREEMENT FOR MANAGEMENT ADVISORY,
STRATEGIC PLANNING AND
CONSULTING SERVICES
THIS AGREEMENT is made effective as of the 17th day of June, 1997, by
and between Investcorp International, Inc., a Delaware corporation ("III"), and
FBP Acquisition Corp., Inc., a Delaware corporation ("FBP").
WHEREAS, III, by and through its officers, employees, agents and
affiliates has developed in connection with the conduct of its business and
affairs various areas of expertise in the fields of management, finance,
marketing, and strategic planning; and
WHEREAS, FBP desires to avail itself of the expertise of III in those
areas hereinabove enumerated and in which III is acknowledged to have expertise,
for a period of five (5) years from the effective date hereof, said 5-year
period being referred to as the "Term";
NOW, THEREFORE, the parties do hereby agree as follows:
1. APPOINTMENT. FBP hereby appoints III to render management
advisory, strategic planning and consulting services to FBP on an exclusive
basis during the Term as herein contemplated.
2. III. During the Term, III shall render to FBP, by and through
such of its officers, employees, agents and affiliates as III, in its sole
discretion, shall designate from time to time, management advisory, strategic
planning and consulting services. Said services shall consist of advice
concerning management, finance, marketing, strategic planning, and such other
services as shall be requested from time to time by the Board of Directors of
FBP. FBP acknowledges and agrees that the services to be provided by III
hereunder do not encompass services that would be required in connection with
an acquisition, restructuring or initial public offering by FBP, or a private
sale of the stock or assets of FBP. Should FBP desire to engage III to
provide financial advisory services in connection with any such type of
transaction, such engagement shall be subject to the negotiation of mutually
acceptable fee arrangements for such additional services, albeit the
indemnification obligations of FBP as set forth in paragraph 7 of this
Agreement shall apply to any such additional services performed by III.
3. FEES. In consideration of III's performance of the
above-described services, FBP shall pay to III, in cash, consulting services
fees at the rate of $1,000,000 per year for the duration of the Term
(collectively, the "Fee"). It is recognized that the services provided under
this Agreement will not be evenly distributed over time and that a significant
portion of such services will be performed early in the period of time covered
by this Agreement. It is also recognized that, subject to the terms of this
Agreement, FBP is committed to pay the full amount payable hereunder, and the
Fee, once paid, is non-refundable. The full amount of the Fee for the entire
Term shall be paid on its Effective Date.
4. REIMBURSEMENTS. Within 15 calendar days of delivery of III's
invoice, FBP shall reimburse III for its actual out-of-pocket expenses incurred
in connection with the performance of services pursuant to this Agreement.
5. DEFAULT. In the event that FBP fails to pay any part of the Fee
as set forth in Paragraph 3 above when and as due, and FBP does not cure such
failure prior to the 10th day of the month in which such payment is due, then
FBP shall be in default under this Agreement and III shall be entitled to
receive payment in full of the unpaid portion of the Fee upon making written
demand upon FBP for such payment. Upon delivery of such written demand, III
shall be excused from rendering any further services pursuant to this Agreement.
The aforesaid right and privilege of III to withhold services is intended to be
in addition to any and all other remedies available because of FBP's default,
including III's right to payment of all fees set forth herein. Further, in the
event of a default by FBP, FBP agrees to reimburse III for any and all costs and
expenses incurred by III, including, without limitation, reasonable counsel fees
and expenses, in connection with such default and any litigation or other
proceedings instituted for the collection of payments due hereunder.
6. PERMISSIBLE ACTIVITIES. Nothing herein shall in any way preclude
III from engaging in any business activities or from performing services for its
own account or for the account of others.
7. INDEMNIFICATION. FBP shall indemnify and hold harmless III and
its directors, officers, employees, agents and controlling persons (each
being an "Indemnified Party") from and against any and all losses, claims,
damages and liabilities, joint or several, to which such Indemnified Party
may become subject under any applicable federal or state law, or otherwise,
relating to or arising out of the management, strategic planning and
consulting services contemplated by, this Agreement. FBP shall reimburse any
Indemnified Party for
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all costs and expenses (including reasonable counsel fees and expenses)
incurred in connection with the investigation of, preparation for or defense
of any pending or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party. FBP shall not
be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability or expense is found in a final judgment by
a court of competent jurisdiction to have resulted primarily from the bad
faith or gross negligence of III.
8. AMENDMENTS. No amendment or waiver of any provision of this
Agreement, or consent to any departure by either party from any such provision,
shall in any event be effective unless the same shall be in writing and signed
by the parties to this Agreement and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
9. NOTICES. Any and all notices hereunder shall, in the absence of
receipted hand delivery, be deemed duly given when mailed, if the same shall be
sent by registered or certified mail, return receipt requested, and the mailing
date shall be deemed the date from which all time periods pertaining to a date
of notice shall run. Notices shall be addressed to the parties at the following
addresses:
If to III, to:
Investcorp International, Inc.
280 Park Avenue
37th Floor
New York, New York 10017
Attention: President
with a copy to:
Gibson, Dunn & Crutcher
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Attention: Peter L. Baumbusch, Esq.
If to FBP, to:
FBP Acquisition Corp., Inc.
c/o Gibson, Dunn & Crutcher
200 Park Avenue
New York, New York 10166
Attention: E. Michael Greaney
10. ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement between the parties with
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respect to the subject matter hereof, and shall supersede all previous oral
and written (and all contemporaneous oral) negotiations, commitments,
agreements and understandings relating hereto.
11. ASSIGNMENT. This Agreement shall be assignable by either party
hereto provided that the non-assigning party consents in writing to such
assignment.
12. APPLICABLE LAW. This Agreement shall be construed and enforced
in accordance with the laws of Delaware and shall inure to the benefit of, and
be binding upon, III and FBP and their respective successors and assigns.
13. NO CONTINUING WAIVER. The waiver by any party of any breach of
this Agreement shall not operate or be construed to be a waiver of any
subsequent breach.
IN WITNESS WHEREOF, each of the parties has caused this Agreement for
Management Advisory, Strategic Planning and Consulting Services to be executed
and delivered by its duly authorized officer or agent as set forth below.
INVESTCORP INTERNATIONAL, INC.
By: /S/ JON P. HEDLEY
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Name:
Title:
FBP ACQUISITION CORP., INC.
By: /S/ CHRISTOPHER J. STADLER
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Name:
Title:
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