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EXHIBIT 10.1
AGREEMENT FOR INVESTMENT BANKING SERVICES
THIS AGREEMENT is entered into this March 31, 1998, by and between
SIMCALA, INC., a Delaware corporation (the "Corporation"), and CGW SOUTHEAST
MANAGEMENT III, L.L.C., a Delaware limited liability company ("CGW").
BACKGROUND
The Corporation desires to engage CGW to provide investment banking
services to the Company in connection with the transactions contemplated by that
certain Stock Purchase Agreement, dated February 10, 1998, among the
Corporation, SAC Acquisition Corp. and the shareholders of the Corporation (the
"Stock Purchase Agreement"), and in connection with structuring and negotiating
certain senior credit facilities and the terms of the issuance and sale by the
Corporation of senior subordinated notes and in arranging for contributions to
the equity capital of the Corporation (collectively, the "Financings").
AGREEMENT
For and in consideration of the above premises and the mutual covenants
and agreements hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the parties hereto agree
as follows:
1. SCOPE OF CONSULTING SERVICES. CGW has provided and agrees to
continue to provide to the Corporation investment banking and advisory services
in connection with the structuring and negotiation of the transactions
contemplated by the Stock Purchase Agreement and the Financings and the
consummation of such transactions.
2. COMPENSATION. For the services rendered by CGW as herein
described, upon consummation of the transactions provided for in the Stock
Purchase Agreement and the Financings the Corporation shall pay to CGW One
Million Three Hundred and Fifty Thousand Dollars ($1,350,000.00) (the "Fee").
The Fee shall be paid at the time of the consummation of such transactions by
wire transfer of immediately available funds.
3. EXPENSES. The Corporation shall reimburse CGW for all of CGW's
costs and expenses (other than ordinary overhead) reasonably incurred in
connection with providing the investment banking services hereunder. Such
reimbursements shall be paid to CGW upon submission by CGW of all documentation
ordinarily required by the Corporation's policy on reimbursement of expenses.
4. INDEPENDENT CONTRACTOR. CGW is and shall be an independent
contractor, and no employment or agency relationship between the Corporation and
CGW is intended to be created hereby.
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5. INDEMNIFICATION.
(a) The Corporation shall indemnify and hold harmless CGW and
its affiliates, their respective officers, directors,
controlling persons (within the meaning of Section 15 of
the Securities Act of 1933 or Section 20(a) of the
Securities Exchange Act of 1934), if any, employees and
agents of CGW or any of CGW's affiliates (each such person
being an "Indemnified Person") from and against any losses,
claims, damages or liabilities related to, arising out of
or in connection with CGW's engagement hereunder.
(b) The Corporation shall reimburse each Indemnified Person for
all reasonable expenses (including fees and expenses of
counsel) as they are incurred in connection with
investigating, preparing, pursuing or defending any action,
claim, suit, investigation or proceeding related to,
arising out of or in connection with CGW's engagement
hereunder, whether or not pending or threatened and whether
or not any Indemnified Person is a party; provided however,
that if a final judicial determination is made that any
losses, claims, damages or liabilities (or expenses related
thereto) have resulted from the bad faith or gross
negligence of any Indemnified Person, then each Indemnified
Person will remit to the Corporation any amounts reimbursed
under this subparagraph 5(b).
(c) The Corporation will not be responsible for any losses,
claims, damages or liabilities (or expenses related
thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of any
Indemnified Person. The Corporation further agrees that no
Indemnified Person shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the
Corporation or to any person claiming through the
Corporation (including, without limitation, equity holders
and creditors of the Corporation) for or in connection with
CGW's engagement hereunder except for any such liability
for losses, claims, damages or liabilities incurred by the
Corporation that are finally judicially determined to have
resulted from the bad faith or gross negligence of such
Indemnified Person. If multiple claims are brought against
CGW in an arbitration, with respect to at least one of
which indemnification is permitted under applicable law and
provided for under this Agreement, the Corporation agrees
that any arbitration award shall be conclusively deemed to
be based on claims as to which indemnification is permitted
and provided for, except to the extent the arbitration
award expressly states that the award, or any portion
thereof, is based solely on a claim as to which
indemnification is not available.
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(d) The Corporation agrees that each Indemnified Person is
entitled to retain separate counsel of its choice in
connection with any of the matters to which the
indemnification and reimbursement commitments set forth in
subparagraphs 5(a) and 5(b) above relate.
(e) No Indemnified Person seeking indemnification,
reimbursement or contribution under this Agreement will,
without the Corporation's 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 referred to in this
subparagraph 5(a) above.
(f) The foregoing rights to indemnity and contribution shall be
in addition to any rights that CGW and/or any other
Indemnified Person may have at common law or otherwise and
shall remain in full force and effect following the
completion or any termination of CGW's engagement. The
Corporation hereby consents to personal jurisdiction and to
service and venue in any court in which any claim which is
subject to this Agreement is brought against CGW or any
other Indemnified Person.
(g) The Corporation and CGW agree that if any indemnification
or reimbursement sought pursuant to this Section 5 is
finally judicially determined to be unavailable (except by
reason of the gross negligence or bad faith of any
Indemnified Person), then, whether or not CGW is the person
entitled to indemnification or reimbursement, the
Corporation and CGW shall contribute to the losses, claims,
damages, liabilities and expenses for which such
indemnification or reimbursement is held unavailable in
such proportion as is appropriate to reflect the relative
benefits to the Corporation on the one hand, and CGW on the
other, in connection with the transaction to which such
indemnification or reimbursement relates, and other
equitable considerations; provided however, that in no
event shall the amount to be contributed by CGW exceed the
amount of the fee actually received by CGW hereunder.
6. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SIMCALA, INC.
By: /s/ C. Edward Boardwine
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Name:
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Title:
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CGW SOUTHEAST MANAGEMENT III, L.L.C.
By: /s/ William A. Davies
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Name:
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Managing Director
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