EXHIBIT 10.10
ASSOCIATED MATERIALS INCORPORATED
3773 State Road
Cuyahoga Falls, Ohio 44233
December 5, 2004
Investcorp International Inc.
280 Park Avenue
36th Floor
New York, New York 10017
Re: M&A Advisory Services Agreement
Dear Sirs:
This will confirm the understanding and agreement (the "Agreement") between
Investcorp International, Inc. ("III") and Associated Materials Incorporated
("AMI").
1. AMI hereby engages III to render advisory services concerning the
proposed acquisition of a portion of the business assets of AMI through the
acquisition of 50% of the outstanding equity of AMH Holdings, Inc. (the
"Acquisition").
2. III hereby accepts the engagement and, in that connection, agrees to:
(a) conduct such financial review of AMI and its business and
operations as III shall deem appropriate and feasible, which
review shall be limited to an analysis of (i) publicly available
information with respect to AMI, and (ii) such other information
as shall be supplied to III by AMI;
(b) assist in negotiations and related acquisition strategy; and
(c) advise with respect to executive compensation matters regarding
the executives of AMI.
3. For purposes of this Agreement, "Acquisition" shall mean any
transaction or series or combination of transactions, other than in the ordinary
course of business, whereby, directly or indirectly, control of or a material
interest in AMI or its business or assets is transferred to any combination of
AM Holding Limited, AM Equity Limited, AM Investments Limited, Associated Equity
Limited, and Associated Investments Limited (the "Purchasers") for
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consideration, including, without limitation, a sale or exchange of capital
stock or assets, a lease of assets with or without a purchase option, a merger
or consolidation, a tender or exchange offer, a leveraged buy-out, the formation
of a joint venture or partnership, or any similar transaction.
4. The term of III's engagement hereunder shall extend from the date
hereof through the earlier of June 23, 2005 and the closing of the Acquisition.
Subject to the provisions of paragraphs 5 through 10 hereof, which shall survive
any termination of this Agreement (including by operation of the preceding
sentence), AMI may terminate III's engagement hereunder at any time by giving
III at least 10 days prior written notice.
5. If the Acquisition (as defined in paragraph 3 above) occurs during the
term of III's engagement hereunder, or at any time during a period of 12 months
following the effective date of termination of III's engagement hereunder,
regardless of whether or not III rendered advice concerning the acquisition,
then AMI shall pay the sum of $1,500,000 to III at the closing of the
Acquisition (which amount is equal to approximately 1 percent of the anticipated
$150 million total transaction amount with respect to the Purchasers).
6. AMI shall reimburse III for its reasonable out-of-pocket expenses
incurred during the period of its engagement hereunder with respect to the
services to be rendered by it. Out-of-pocket expenses shall include, but shall
not be limited to, professional fees and disbursements incurred by III.
7. AMI shall:
(a) indemnify III and hold it harmless against any losses, claims,
damages or liabilities to which III may become subject arising in
any manner out of or in connection with the rendering of services
by III hereunder, unless it is finally judicially determined that
such losses, claims, damages or liabilities arose primarily out
of the gross negligence or bad faith of III; and
(b) reimburse III immediately for any legal or other expenses
reasonably incurred by it in connection with investigating,
preparing to defend or defending any lawsuits or other
proceedings arising in any manner out of or in connection with
the rendering of services by III hereunder; provided, however,
that in the event a final judicial determination is that the
alleged losses, claims, damages or liabilities arose primarily
out of the gross negligence or bad faith of III, III will remit
to AMI any amounts reimbursed under this subparagraph 7(b). AMI
agrees that (i) the indemnification and reimbursement commitments
set forth in this paragraph shall apply whether or not III is a
formal party to any such lawsuits, claims or other proceedings,
(ii) III is entitled to retain separate counsel of its choice in
connection with any of the matters to which such commitments
relate, and (iii) such commitments shall extend upon the terms
set forth in this paragraph to any controlling person, director,
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officer, employee or agent of III; provided, however, that to the
extent that III retains separate counsel in connection with any
matter set forth in this subparagraph 7(b), such counsel shall
coordinate its efforts with counsel to AMI.
8. Except as contemplated by the terms hereof or as required by
applicable law, III shall keep confidential all material non-public information
provided to it by AMI and shall not disclose such information to any third
party, other than such of its employees and advisors as III determines to have a
need to know.
9. Except as required (i) by applicable law or (ii) under the terms of
any agreement relating to the Acquisition, any advice to be provided by III
under this Agreement shall not be disclosed publicly or made available to third
parties without the prior approval of III, which approval shall not be
unreasonably withheld or delayed.
10. AMI and III acknowledge and agree that there are no brokers,
representatives or other persons which have an interest in compensation due to
III from any transaction contemplated herein.
11. 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.
12. 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, 36th Floor
New York, New York 10017
Attention: President
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: David B. Rosenauer, Esq.
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If to AMI, to:
Associated Materials Incorporated
3773 State Road
Cuyahoga Falls, Ohio 44233
13. This letter agreement may be signed in one or more counterparts, each
of which shall constitute an original and all of which together shall constitute
one and the same agreement.
14. This letter agreement shall constitute the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all
previous oral and written (and all contemporaneous oral) negotiations,
commitments, agreements and understandings relating thereto.
15. This Agreement shall be construed and enforced in accordance with the
laws of New York and shall inure to the benefit of, and be binding upon, III and
AMI and their respective successors and assigns.
16. 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.
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If the foregoing correctly sets forth the Agreement between III and AMI,
please so indicate in the space provided for that purpose below, whereupon this
letter shall constitute a binding agreement as of the date first above written.
ASSOCIATED MATERIALS
INCORPORATED
By:
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Name: D. Keith LaVanway
Title: Chief Executive Officer
Date: December 5, 2004
AGREED:
INVESTCORP INTERNATIONAL INC.
By:
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Name: James Egan
Title: Vice President
Date: December 5, 2004