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EXHIBIT 10.29
MANAGEMENT AGREEMENT
AGREEMENT dated August 11, 1999, between Chestnut Hill Capital
Partners, LLC (the "MANAGING MEMBER") and Chestnut Hill Re, Inc. (the "CLASS A
MEMBER").
In consideration of the premises and the agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not defined herein
shall have the respective meanings given them in the Limited Liability Company
Agreement of GCC Investments, LLC (the "Company") of even date herewith, as
hereafter amended (the "FUND AGREEMENT").
SECTION 2. PAYMENT OF OPERATING EXPENSES. The Managing Member shall
assume all "normal operating expenses" of the Company and the GCC Investments,
Inc. Incentive Pool Plan as adopted effective November 1, 1996, as amended from
time to time (the "Plan"), on the terms and conditions herein set forth. Normal
operating expenses INCLUDE all recurring routine expenses incident to conducting
the affairs of the Company and the investment program under the Plan, including
but not limited to, expenses incurred in investigating investment opportunities
for the Company or under the Plan; usual and necessary office and clerical
salaries and benefits of the employees of the Managing Member; normal investment
banking, investment management, legal, custodial, auditing and accounting
services provided to the Company or with respect to the Plan; expenses for
administrative services, office space and facilities, utility and other overhead
charges; expenses for travel and entertainment incurred in connection with the
business of the Company or the investment program under the Plan; telephone,
telegram, cablegram, telegraph and similar charges; postage and courier
expenses; dues, subscriptions, office supplies and similar expenses; fees for
bookkeeping and other similar services relating to the business of the Company
or the investment program under the Plan and other routine expenses incurred in
connection with the Company's affairs or the investment program under the Plan.
Normal operating expenses EXCLUDE, without limitation, the following expenses of
the Company and the investment program under the Plan, which shall be assumed by
the Managing Member: any taxes which may be assessed against the Company or the
investment program under the Plan; commissions, brokerage fees or similar
charges incurred in connection with the purchase and sale of Portfolio
Securities; all expenses relating to litigation and threatened litigation
involving the Company or the investment program under the Plan; extraordinary
investment banking, investment management, legal, custodial, auditing and
accounting services provided to the Company or with respect to the Plan; and all
other nonrecurring or extraordinary expenses properly chargeable to the business
of the Company or the investment program under the Plan.
SECTION 3. MANAGEMENT FEE. (a) The Company shall pay the Managing
Member during the term of this Agreement an annual management fee for the
investment advice to be provided hereunder which shall be determined by the
"Senior Manager" of the Managing Member, as such term is defined in the limited
liability company agreement of the Managing
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Member, in consultation with the Class A Member, and approved by the Advisory
Committee (the "MANAGEMENT FEE"). The proposed Management Fee for each fiscal
year shall be submitted by the Senior Manager to the Advisory Committee at least
forty-five (45) days prior to the beginning of each such fiscal year. The
proposal shall include an expense budget itemizing normal operating expenses in
reasonable detail. The proposed Management Fee shall not exceed in any fiscal
year the greatest of (1) 2% of the Cost of Portfolio Securities held by the
Company at the end of the prior fiscal year, (2) $4 million or (3) such other
amount as is approved by Richard A. Smith, for so long as he serves as Chairman
of the Advisory Committee, and by the Advisory Committee as a group if Mr. Smith
is no longer Chairman.
(b) From time to time during each fiscal year, the Managing Member
shall submit written invoices and the like to the Class A Member for the
expenses (whether normal operating expenses or not) attributable to the Company
and, for normal operating expenses, such written invoice shall be generally in
accordance with the expense budget approved pursuant to Section 3(a). Any
material deviation from such expense budget which would cause the aggregate
expense budget to exceed an amount equal to the greatest of (1) 2% of the Cost
of Portfolio Securities, (2) $4 million or (3) the amount approved pursuant to
clause (b)(3) above, shall require the approval of Richard A. Smith, for so long
as he serves as Chairman of the Advisory Committee, and by the Advisory
Committee as a group if Mr. Smith is no longer Chairman. The Class A Member
shall promptly pay, or cause to be paid, all such invoices in the manner
directed by the Managing Member.
(c) The amount of the Management Fee during each fiscal year shall
equal the total amount of expenses of the Company and the Plan incurred or
assumed (whether or not invoiced) by the Managing Member during such fiscal year
pursuant to this Agreement. Any portion of the Management Fee which exceeds the
limitation set forth in the last sentence of clause (a) above shall constitute
"Excess Management Fee Payments" for purposes of the Fund Agreement.
SECTION 4. MANAGING MEMBER DUTIES. The Managing Member shall maintain a
staff trained and experienced in identifying and providing assistance to growth
companies. Such staff shall be adequate for the performance of the Managing
Member's duties under this Agreement. Services to be rendered by the Managing
Member shall include assistance within the areas of expertise of its staff and,
when considered necessary by the Managing Member, the services of its officers
and employees as directors, consultants and advisors for Portfolio Companies and
companies invested in under the Plan. In addition to the services of its own
staff, the Managing Member shall, after consultation with the Company concerning
services to be rendered at the request of the Company, arrange for and
coordinate the services of other professionals and consultants.
SECTION 5. SECONDARY INVESTMENTS. (a) Upon the consummation of any
Secondary Investment (as defined below), an amount equal to the sum of (a) three
percent (3%) of the first $50 million invested by the Class A Member or an
Affiliate of the Class A Member as part of such Secondary Investment and (b) one
and one-half percent (1.5%) of any amount in excess of $50 million invested as
part of such Secondary Investment will be paid to the Managing Member. Such
amount shall be paid in cash in three substantially equal installments, with the
first installment made upon the closing of the relevant Secondary Investment and
the second and third installments made on the first and second anniversary of
such closing. Amounts to be paid
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in installments after the first installment shall be credited with interest
until paid at an annual rate specified by the Advisory Committee from time to
time.
(b) Notwithstanding the foregoing, the Advisory Committee may cause the
Class A Member or its Affiliate to defer any payment to be made under this
Section 5 to the extent such payment would not be deductible by the Class A
Member or its Affiliate for Federal income tax purposes. Any such deferral will
be credited with interest, until paid at a time when it would be deductible by
the Class A Member or its Affiliate, at an annual rate specified by the Advisory
Committee from time to time.
(c) A "Secondary Investment" shall mean an investment made by the Class
A Member or an Affiliate of the Class A Member in a Portfolio Company to
increase the direct or indirect interest of the Class A Member or its Affiliates
in a Portfolio Company or secure or supplement control positions in a Portfolio
Company which the Advisory Committee determines to be a core investment.
SECTION 6. TERM OF AGREEMENT. This Agreement shall terminate on the
earlier of (a) such time as the liquidation of the Company has been completed,
and (b) upon the Managing Member's bankruptcy, dissolution or withdrawal from
the Company or the conversion of the Managing Member's interest to a Retired
Member interest.
SECTION 7. AMENDMENT. This Agreement can be modified or amended only by
a writing signed by the parties hereto, with the written consent of the Advisory
Committee.
SECTION 8. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
CHESTNUT HILL RE, INC.
By: ____________________________________
Title: _________________________________
CHESTNUT HILL CAPITAL PARTNERS, LLC
By: ____________________________________
Senior Manager