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Exhibit 10.1
July 20, 2005
Mr. Todd Herrick
Chairman, President & CEO
Tecumseh Products Company
100 E. Patterson Street
Tecumseh, MI 49286
Re: Agreement for Consulting Services
Dear Todd:
This letter outlines the understanding ("Agreement") between AlixPartners, LLC,
a Delaware limited liability company ("AlixPartners") and Tecumseh Products
Company (the "Company") of the objective, tasks, work product and fees for the
engagement of AlixPartners to provide consulting services to the Company.
All defined terms shall, unless the context otherwise requires, have the
meanings ascribed to them in Schedule 1 ("Definitions and Interpretation").
OBJECTIVE
The overall objective of this engagement is to help Tecumseh Products Company
significantly improve its competitive positioning through decreased operational
costs.
TASKS
Working with the Company's management:
- - Plan and implement a new manufacturing strategy designed to lower
manufacturing costs.
- - Plan and implement changes to the sourcing process aimed at lowering the
costs of raw materials and purchased products.
- - Plan and implement changes to the sales and operations planning process,
and the related inventory management process, designed to improve supply
chain visibility and reduce inventory.
2000 Town Center | Suite 2400 | Southfield, MI | 48075 | 248.358.4420 |
248.358.1969 fax | www.alixpartners.com
[ALIXPARTNERS LLC LOGO]
Mr. Todd Herrick
July 20, 2005
Page 2
- - Plan and implement changes to product development and engineering aimed at
lowering product costs.
- - Plan and implement other operational changes that help the Company reduce
costs and improve efficiency.
- - Assist with other matters as may be requested that are within our
expertise and that are mutually agreeable.
WORK PRODUCT
Our work product will be in the form of:
- - Information to be discussed with you and others, as you may direct.
- - Written reports and analysis worksheets to support our suggestions as we
deem necessary or as you may request.
STAFFING
John Hoffecker will be responsible for the overall engagement pursuant to this
Agreement.
The engagement team, pursuant to this Agreement, will consist of consultants at
various levels, all of whom have a wide range of skills and abilities required
to perform this assignment. In addition, we have relationships with and
periodically retain independent contractors with specialized skills and
abilities to assist us.
The Company confirms that the AlixPartners' engagement team members will have
operational authority commensurate with their roles and as agreed to by the
Company.
TIMING AND FEES
We will commence this engagement immediately upon receipt of a signed engagement
letter.
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Mr. Todd Herrick
July 20, 2005
Page 3
We typically work for a combination of daily fees and contingent success fees.
In this engagement, we will bill daily and commit to a fixed fee plus success
fee. AlixPartners shall be compensated for its Services under this Agreement in
accordance with the terms set forth on Schedule 2.
* * *
The terms and conditions set out in the attached Schedules and the General Terms
and Conditions form part of and are incorporated by reference herein to this
Agreement.
If these terms meet with your approval, please sign and return the enclosed copy
of this letter and wire transfer $850,000 as stipulated on Schedule 2.
We look forward to working with you.
Sincerely yours,
ALIXPARTNERS, LLC
/s/ JOHN HOFFECKER
John Hoffecker
Managing Director
Acknowledged and Agreed to:
TECUMSEH PRODUCTS COMPANY
By: /s/ TODD W. HERRICK
Its: President and Chief Executive Officer
Dated: July 20, 2005
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SCHEDULE 1
DEFINITIONS AND INTERPRETATION
Affiliate Affiliates of AlixPartners include AP Services, LLC, a
company that provides temporary employees, AlixPartners
Asia, LLC, AlixPartners Ltd., AlixPartners GmbH,
AlixPartners S.r.l., and AlixPartners Asia, LLC, which are
financial advisory and consulting firms, The System Advisory
Group, providing information technology services,
Partnership Services, LLC, a company that provides temporary
employees, and the Questor funds, which are private equity
funds that invest in special situations and under-performing
companies;
Agreement the terms and conditions set out, or referenced in, or
incorporated intothis letter;
Break Fee the Break Fee (if any) payable by the Company in accordance
with Schedule 2;
Contingent Success the success fees payable by the Company to AlixPartners, as
Fees more particularly described in Schedule 2;
Expenses costs and expenses which are incurred by AlixPartners, its
affiliates and their respective personnel in the performance
of the Services, as more particularly described in Schedule
2;
Fees the professional fees payable by the Company to AlixPartners
in accordance with Schedule 2 which, where the context
requires, shall include the Fixed Fee, Break Fee and/or the
Success Fees, as the case may be;
General Terms and the terms and conditions attached to and forming part of
Conditions this Agreement;
Party or Parties a party or the parties to this Agreement (as the case may
be);
Personnel directors, officers, employees, agents, contractors and
sub-contractors;
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Schedules the schedules attached to, or referenced in, this Agreement,
and which form part of this Agreement, as such schedules may
be amended from time to time in accordance with this
Agreement;
Services the services to be provided by AlixPartners under this
Agreement; and
Termination Date the date on which this Agreement shall terminate.
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SCHEDULE 2
FEES AND EXPENSES
1. FIXED FEE: The Company shall pay AlixPartners a fixed fee of $850,000 for
work on this engagement, and for the work performed during the prior
QuickStrike engagement as specified in the agreement dated April 28, 2005.
Payment of the Fixed Fee is due on the start date of the engagement.
2. CONTINGENT SUCCESS FEES:
A. Beginning on January 2, 2006, the Company shall pay AlixPartners a
monthly Contingent Success Fee based on a portion of improvements in
on-going cash flow from mutually agreed projects as set forth in a
schedule developed and agreed to by AlixPartners and the Company
within 30 days of the date of this Agreement (the "Cash Flow
Improvement Schedule"):
i. Definition: Improvements in on-going cash flow may include,
but are not necessarily limited to, inventory-related cost
reductions (measured as 25% of inventory level reductions),
right-sizing direct, indirect and salaried staffing levels,
manufacturing efficiencies, quality improvements,
transportation cost reductions, and reducing or eliminating
capital expenditures that have been planned or are underway.
ii. Measurement: The Cash Flow Improvement Schedule shall list
specific projects that are designated for on-going cash flow
improvement, baselines for measuring improvements, targets for
improvements, and anticipated timing for improvements. Example
guidelines for measurement include:
- Procurement cost reductions will be indexed for changes
in raw commodity (eg aluminum, iron, linerboard, plastic
resin) prices
- The value of inventory reductions will be based on a
fixed unit cost and adjusted for forecasted sales
- All benefits will be measured using a fixed exchange
rate
AlixPartners will use its commercially reasonable best efforts
to cause the Company to achieve the on-going cash flow
improvements targeted in the Cash Flow Improvement Schedule.
On-going cash flow improvement shall be measured monthly. The
January 2006 improvement shall be measured as the annualized
run-rate of the incremental on-going cash flow improvement
achieved on the approved projects since the start date of the
engagement. Subsequent monthly payments shall be measured as
the annualized run-
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rate of the incremental on-going cash flow improvement
achieved on the approved projects over the prior month in
which there was an improvement in on-going cash flow for such
projects. The measurement of improvements shall exclude all
one-time costs (e.g., severance, equipment move costs,
AlixPartners fees and expenses, etc.).
Calculation of the cash flow improvement Success Fee shall be
in accordance with the following schedule:
% of Incremental Cash Flow
Measurement Improvement Paid to
Period AlixPartners
- ------------------------------- --------------------------
Monthly,
January 2, 2006 - July 31, 2006 25%
Monthly,
August 1, 2006 - July 31, 2007 5%
iii. Payment: Payment of the cash flow improvement Success Fees
shall be due immediately upon Company's receipt of invoice.
iv. If no on-going cash flow improvement is achieved by the
Company for each of three consecutive months, during the
period beginning January 1, 2006 and ending when two or less
of the AlixPartners "Consulting Services" personnel are
working on the project on a full time basis, the Company may
terminate this Agreement without any obligation to pay a Break
Fee. However, this provision shall not effect the obligation
of the Company to pay the EBIT improvement Success Fee.
v. The Company shall be entitled to terminate this Agreement with
payment of the Fixed Fee of $850,000 but without payment of a
Break Fee if the cash flow improvement Schedule is not agreed
to as aforesaid within 30 days of the date of this Agreement,
unless the Parties agree in writing to an extension.
B. Contingent Success Fee Based on Improvements in EBIT for the Engine
and Power Train Group:
i. Definition: EBIT is defined as a) earnings before interest and
taxes, b) before restructuring charges; and c) excluding any
asset impairments, allocations from the Company (e.g., charges
from the parent corporation) or allocation schemes to other
divisions, changes in personnel costs due to strategic hires
or pay raises, environmental charges, and extraordinary items.
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ii. Measurement: The baseline for measuring EBIT improvement shall
be the Engine and Power Train Group's cumulative EBIT from
August 1, 2004 through July 31, 2005.
There will be two measurement periods: 1) August 1, 2005
through July 31, 2006; and 2) August 1, 2006 through July 31,
2007. The difference between the cumulative EBIT in each
period and the baseline period represents the EBIT
improvement.
AlixPartners will earn EBIT Improvement Success Fees based on
the following schedule:
% of Realized EBIT
Measurement Improvement Paid to
Period AlixPartners
- ---------------------- ---------------------
August 1, 2005 through
July 31, 2006 10%
August 1, 2006 through
July31, 2007 10%
iii. Payment of EBIT improvement Success Fees will be due
immediately upon Company's receipt of invoice.
During the period of time from the Termination Date until the
final payment of the Success Fee, a representative of
AlixPartners will talk monthly with a representative of the
Company to monitor actual achieved savings.
3. OUT-OF-POCKET EXPENSES: In addition to the fees set forth above, the
Company shall pay directly or reimburse AlixPartners upon receipt of
periodic billings for all reasonable out-of-pocket expenses incurred in
connection with this assignment as set forth in Section 2 of the attached
General Terms and Conditions. Initial billings shall include expenses
incurred during the prior QuickStrike engagement as specified in the
agreement dated April 28, 2005.
4. BREAK FEE: If this Agreement is terminated by the Company prior to July
31, 2006, other than pursuant to 2.A.iv. and v. above, and other than as a
result of a material breach by AlixPartners, the Company shall pay
AlixPartners a Break Fee equal to the greater of (i) any daily fees
recorded by AlixPartners, calculated at 100% of standard daily rates or
(ii) the Cash Flow Improvement Success Fee; plus the EBIT Improvement
Success Fee for the first of the two measurement periods (August 1, 2005
through July 31, 2006).
If the Company terminates this Agreement after July 31, 2006, other than
pursuant to 2.A.iv.and v. above, and other than as a result of a material
breach by AlixPartners, the Company shall pay AlixPartners a Break Fee
equal to the greater of (i) any daily fees recorded
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by AlixPartners, calculated at 100% of standard daily rates, or (ii) the
cash flow improvement Success Fee; plus the EBIT improvement Success Fee
for the two measurement periods (August 1, 2005 through July 31, 2007).
If this Agreement is terminated by AlixPartners as a result of a) a
material breach by the Company, b) a change in control of the
Company/Division, c) promotion or hiring of a new CEO, or d) failure of
the Company to grant AlixPartners engagement team members operational
authority commensurate with their roles, then the Company shall pay
AlixPartners a Break Fee equal the greater of (i) any daily fees recorded
by AlixPartners, calculated at 100% of standard daily rates, or (ii) the
cash flow improvement Success Fee, plus any earned EBIT improvement
Success Fees. The earned EBIT improvement Success Fees is defined as the
pro-rata share calculated on the agreed-upon baseline.
AlixPartners engagement team members will record the days they perform
work related to the engagement; this will enable the calculation of a
Break Fee, if required, as described above. Our standard daily rates are
as follows:
Managing Directors $6,270 - $7,590
Directors $4,730 - $5,830
Vice Presidents $3,520 - $4,510
Associates $2,750 - $3,080
Analysts $1,980 - $2,420
Paraprofessionals $1,650
AlixPartners will review and revise its daily rates effective each January
1, but increases will be limited to a maximum of 4%.
5. DETERMINATION OF CONTINGENT SUCCESS FEES: AlixPartners will meet (in
person or by telephone) with Jim Nicholson to review and validate
improvements and fees as described above. If AlixPartners and Jim
Nicholson do not agree on the measurement of the improvements and fees
within 15 days, then a Steering Committee comprised of Todd Herrick, Kent
Herrick, Jim Nicholson, John Hoffecker and the interim President of the
Engine and Power Train Group will meet (in person or by telephone) to
review and validate improvements and fees as described above. Agreement is
defined as 4 of 5 members agreeing.
6. RETAINER: In light of the Fixed Fee described above, AlixPartners does not
require a retainer for this engagement.
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SCHEDULE 3
DISCLOSURES
We know of no fact or situation that would represent a conflict of interest for
us with regard to the Company. However, we wish to disclose the following:
- - Questor Partners Fund, L.P. ("QPF") and an affiliated side-by-side fund
and Questor Partners Fund II, L.P. ("QPF II") and affiliated side-by-side
funds, $300 million and $865 million funds, respectively, are private
equity funds that invest in special situations and under-performing
companies. Neither QPF nor QPF II will make an investment in the Debtors
for at least three years after the date that AlixPartners' engagement
terminates.
- - Mr. Jay Alix, a managing director in AlixPartners, is also the President
and CEO of Questor Management Company, LLC ("Questor"), the entity that
manages QPF and QPF II.
- - Questor and AlixPartners are separate companies. AlixPartners, pursuant to
contract, performs certain accounting and other administrative services
for Questor. From time to time, Questor hires AlixPartners as a contractor
to advise it regarding a potential acquisition, and occasionally investee
companies of QPF and QPF II hire AlixPartners. From time to time,
employees of AlixPartners are elected to the boards of directors of
investee companies of QPF and QPF II, but no such board members are
involved in this engagement.
- - Mr. Alix and Mr. Robert Shields own interests in Questor General Partner,
LP ("QGP") and Questor General Partner II, LP ("QGP II"), the general
partners of QPF and QPF II. Substantially all of the AlixPartners managing
directors are limited partners in QGP II and, as such, are passive
participants in the general partner with no voice in authorizing QPF II's
investments. Mr. Alix, Mr. Albert A. Koch, and Mr. Michael Grindfors are
also managing directors of Questor and, along with Mr. Shields, members of
its Investment Committee. The Investment Committee makes investment
decisions for Questor.
- - Substantially all of the managing directors of AlixPartners own limited
partnership interests in one or more of the following entities: Questor
Side-by-Side Partners, L.P. ("SBS"), Questor Side-by-Side Partners II,
L.P. ("SBS II") and Questor Side-by-Side Partners II 3(c)(1), L.P. ("SBS
II 3c1"). Limited partners, except for Mr. Alix, Mr. Koch and Mr.
Grindfors are passive investors and have no voice in approving the
entities' investments.
- - Some of the limited partners of QPF and/or QPF II are affiliates of
financial institutions that are also lenders to companies that may have
retained AlixPartners. The affiliates of such financial institutions are
passive investors in QPF and QPF II and have no voice in approving
Questor's investments. Where such situations occur, the lending
relationship and investment in QPF and/or QPF II is detailed in
AlixPartners' disclosures.
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- - QPF, QPF II, SBS, SBS II, SBS II 3c1 and Questor are all related entities.
The Side-by-Side funds contain, in the aggregate, 6.3% of the total
Questor funds, which are in excess of $1.17 billion.
- - Albert A. Koch, a director of Tecumseh Products Company, is a managing
director of AlixPartners, LLC; and
Mr. Koch has advised, or will advise, the other directors that:
(a) he is an employee of AlixPartners, LLC;
(b) he does not perform policy making functions for
AlixPartners, LLC similar to those performed for a corporation by
its president, a vice president in charge of a principal business
unit, division, or function (such as sales, administration, or
finance), or other officer who performs policy making functions;
(c) he is not a director of AlixPartners, LLC or a person who
performs functions for AlixPartners, LLC similar to those performed
by a director of a corporation;
(d) he does not own any portion of the equity interest in
AlixPartners, LLC;
(e) his compensation from AlixPartners, LLC is determined by
its compensation committee (of which he is not a member) based on a
variety of factors, including revenues and profits received by
AlixPartners, LLC from all sources and not specifically from this
certain letter agreement between Tecumseh Products Company and
AlixPartners, LLC (the "Agreement"); and
(f) he anticipates that the fees to be paid to AlixPartners,
LLC for the consulting services under the Agreement will constitute
less than 5% of the total consolidated revenues of AlixPartners, LLC
and its subsidiaries, if any, for its current fiscal year.
This Schedule 2 may be updated by AlixPartners from time to time to disclose
additional connections or relationships between AlixPartners and the interested
parties.
ALIXPARTNERS, LLC
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions ("Terms") shall govern the services provided
by AlixPartners, LLC ("AlixPartners") as set forth in the Agreement executed by
the Company and AlixPartners to which these Terms are attached.
SECTION 1. COMPANY RESPONSIBILITIES.
COMPANY WILL UNDERTAKE RESPONSIBILITIES AS SET FORTH BELOW:
1. Provide reliable and accurate detailed information, materials,
documentation, and
2. Make decisions and take future actions, as the Company determines in its
sole discretion, on any recommendations made by AlixPartners in connection
with the tasks or deliverables under this Agreement.
AlixPartners' delivery of the services and the fees charged are dependent on (i)
Company's timely and effective completion of its responsibilities; and (ii)
timely decisions and approvals made by the Company's management. Company shall
be responsible for any delays, additional costs, or other deficiencies caused by
not completing its responsibilities.
SECTION 2. TIMING, FEES, AND EXPENSES.
The engagement will commence immediately upon receipt of a signed engagement
letter and a retainer as described in Schedule 2.
FEES. For purposes of monthly billings, AlixPartners will be compensated in
accordance with the terms reflected in Schedule 2.
We review and revise our billing rates effective January l of each year.
OUT-OF-POCKET EXPENSES. In addition to Fees as defined in the Agreement, the
Company shall pay directly or reimburse AlixPartners upon receipt of periodic
billings for all reasonable out-of-pocket expenses incurred in connection with
this assignment such as travel, lodging, postage, telephone and facsimile
charges, capped at 15% of Fees, including Contingent Success Fees and/or the
Break Fee.
PAYMENT. All payments to be made by the Company to AlixPartners under this
Agreement (including but not limited to, the Fees, Expenses and Contingent
Success Fee) shall be payable upon receipt of invoice via wire transfer to
AlixPartners' bank account, the details of which are as follows:
Receiving Bank: Comerica Bank
ABA #072000096
Receiving Account: AlixPartners, LLC
A/C #1851-765386
SECTION 3. RELATIONSHIP OF THE PARTIES.
The parties intend that an independent contractor relationship will be created
by this Agreement. AlixPartners employees are not to be considered employees or
agents of the Company and the employees of AlixPartners are not entitled to any
of the benefits that the Company provides for the Company's employees.
The Company also agrees not to solicit, recruit, or hire any employees or agents
of AlixPartners for a period of two years subsequent to the completion and/or
termination of the Agreement.
SECTION 4. CONFIDENTIALITY.
AlixPartners agrees to keep confidential all information obtained from the
Company. AlixPartners agrees that neither it nor its directors, officers,
employees, agents or attorneys will disclose to any other person or entity, or
use for any purpose other than specified herein, any information pertaining to
the Company or any affiliate thereof, which is either non-public, confidential
or proprietary in nature ("Information") that it obtains or is given access to
during the performance of the services provided hereunder. AlixPartners may make
reasonable disclosures of Information to third parties in connection with the
performance of its obligations and assignments hereunder. In addition,
AlixPartners will have the right to disclose to others in the normal course of
business its involvement with the Company.
Information includes data, plans, reports, schedules, drawings, accounts,
records, calculations, specifications, flow sheets, computer programs, source or
object codes, results, models, or any work product relating to the business of
the Company, its subsidiaries, distributors, affiliates, vendors, customers,
employees, contractors, and consultants.
The Company acknowledges that all advice (written or oral), including Work
Product, given by AlixPartners to the Company in connection with AlixPartners'
engagement is intended solely for the benefit and use of the Company (limited to
its management and its Board of Directors) in connection with the services to
which it relates. The Company agrees that no such advice shall be used for any
other purpose or reproduced, disseminated, quoted, or referred to with
attribution to AlixPartners at any time, in any manner, or for any purpose
without AlixPartners' prior approval (which shall not be unreasonably withheld)
except as required by law.
SECTION 5. INTELLECTUAL PROPERTY.
All methodologies, processes, techniques, ideas, concepts, know-how, procedures,
software, tools, writings and other intellectual property that AlixPartners has
created, acquired or developed prior to the date of this Agreement are, and
shall remain, the sole and exclusive property of AlixPartners, and the Company
shall not acquire any interest therein. AlixPartners shall be free to use all
methodologies, processes, techniques, ideas, concepts, know-how, procedures,
software, tools, writings and other intellectual property that AlixPartners may
create or develop in connection with this engagement except to the extent that
the same contain information or materials furnished to AlixPartners by the
Company that constitute Information referred to in Section 4 above. Except as
provided above, all information, reports, materials, software and other work
product that AlixPartners creates or develops specifically for the Company as
part of this engagement (collectively known as "Work Product") shall be owned by
the Company and shall constitute Information referred to in Section 4 above.
AlixPartners may retain copies of the Work Product, subject to its obligations
under Section 4 above.
SECTION 6. FRAMEWORK OF THE ENGAGEMENT.
The Company acknowledges that it is hiring AlixPartners purely to assist and
advise the Company as described in the Agreement. AlixPartners' engagement shall
not constitute an audit, review, or
ALIXPARTNERS, LLC
GENERAL TERMS AND CONDITIONS
compilation, or any other type of financial statement reporting or consulting
engagement that is subject to the rules of the AICPA, the SSCS, or other such
state and national professional bodies.
SECTION 7. INDEMNIFICATION AND OTHER MATTERS.
In engagements of this nature, it is our practice to receive indemnification.
Accordingly, in consideration of our agreement to act on your behalf in
connection with this engagement, you agree to indemnify, hold harmless, and
defend us (including our directors, officers, employees, and agents) from and
against all claims, liabilities, losses, expenses and damages arising from
services performed by AlixPartners personnel in accordance with this Agreement.
With respect to any matter for which indemnification is provided herein, the
Company shall pay costs as incurred, including reasonable legal fees and
disbursements of counsel in any legal proceeding in which we may be required or
agree to participate but in which we are not a party. We, our directors,
officers, employees, and agents will engage a single firm of separate counsel
acceptable to the Company, which approval shall not be unreasonably withheld, in
connection with any of the matters to which this indemnification agreement
relates.
AlixPartners is not responsible for any third-party products or services. The
Company's sole and exclusive rights and remedies with respect to any third party
products or services are against the third party vendor and not against
AlixPartners. AlixPartners shall not be liable to the Company, except for claims
resulting from bad faith, self-dealing, or gross negligence.
The obligations of the parties as reflected herein shall survive the termination
of the engagement.
SECTION 8. GOVERNING LAW.
This Agreement is governed by and construed in accordance with the laws of the
State of Michigan with respect to contracts made and to be performed entirely
therein and without regard to choice of law or principles thereof.
Any controversy or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by arbitration. Each party shall appoint one
non-neutral arbitrator. The two party arbitrators shall select a third
arbitrator. However, if within thirty days after their appointment the two party
arbitrators do not select a third arbitrator, the third arbitrator shall be
selected by the American Arbitration Association (AAA). The arbitration shall be
conducted under the AAA's Commercial Arbitration Rules, and the arbitrators
shall issue a reasoned award. The arbitrators may award costs and attorneys'
fees to the prevailing party. Judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The arbitration shall
be heard in Southfield, Michigan.
SECTION 9. TERMINATION AND SURVIVAL.
This Agreement may be terminated at any time by written notice by one party to
the other; provided, however, that notwithstanding such termination,
AlixPartners will be entitled to any fees and expenses due under the provisions
of the Agreement, including Contingent Success Fee and Break Fee in accordance
with Schedule 2. The Break Fee is due and payable at the Termination Date. Such
payment obligation shall inure to the benefit of any successor or assignee of
AlixPartners.
Additionally, unless AlixPartners is terminated by the Company for cause (as
defined below) or due to circumstances described in the Contingent Success Fee
provision in the Agreement, AlixPartners shall remain entitled to the Contingent
Success Fee(s) that otherwise would be payable for the greater of 12 months from
the date of termination or the period of time that that has elapsed from the
date of this Agreement to the date of termination. Cause shall mean:
(a) an AlixPartners representative acting on behalf of the Company is convicted
of a felony, or
(b) it is determined in good faith by the Board of Directors of the Company, and
after thirty (30) days notice and opportunity to cure, either (i) an
AlixPartners representative engages in misconduct injurious to the Company, or
(ii) an AlixPartners representative breaches any of his or her material
obligations under this Agreement, or (iii) an AlixPartners representative
willfully disobeys a lawful direction of the Board of Directors or senior
management of the Company.
Sections 2, 4, 5, 7, 8, 9, and 10 shall survive the expiration or termination of
the Agreement.
SECTION 10. GENERAL.
SEVERABILITY. If any portion of the Agreement shall be determined to be invalid
or unenforceable, we each agree that the remainder shall be valid and
enforceable to the maximum extent possible.
ENTIRE AGREEMENT. The Terms and the attached Agreement contain the entire
understanding of the parties relating to the services to be rendered by
AlixPartners and may not be amended or modified in any respect except in writing
signed by the parties. AlixPartners will not be responsible for performing any
services not specifically described in this Agreement or in a subsequent writing
signed by the parties. If there is a conflict between these Terms and the
Agreement, these Terms shall govern.
NOTICES. All notices required or permitted to be delivered under this Agreement
shall be sent, if to AlixPartners, to the address set forth in the Agreement, to
the attention of Mr. Melvin R. Christiansen, and if to Company, to the address
set forth in the Agreement, to the attention of your General Counsel, or to such
other name or address as may be given in writing to the other party. All notices
under the Agreement shall be sufficient if delivered by facsimile or overnight
mail. Any notice shall be deemed to be given only upon actual receipt.
SECTION 11. DISCLOSURES.
AlixPartners knows of no fact or situation, other than those disclosed in
Schedule 3, which would represent a conflict of interest for AlixPartners with
regard to the Company. As a large, multi-national firm, AlixPartners has many
present and former clients, and will have future clients, some of which may be
competitors of the Company. While AlixPartners is not aware of any
relationships, other than those disclosed in Schedule 3, that connect
AlixPartners to any party in interest, because AlixPartners is a consulting firm
that serves clients on a national basis in numerous cases, it is possible that
AlixPartners may have rendered services to or have business associations with
other entities which had or have relationships with the Company. AlixPartners
has not and will not represent the interests of any of the entities disclosed on
Schedule 3 in this case.