EXHIBIT 10.18
Termination and Fee Agreement
This Termination and Fee Agreement (this "Agreement") is entered into as of
the 14th day of April, 2000 by and between DDi Corp., a Delaware corporation
(together with each of its direct and indirect subsidiaries becoming party
hereto by executing a counterpart signature page hereof, the "Company"), and
Bain Capital Partners V, L.P., a Delaware limited partnership ("Bain").
Whereas, the Company (f/k/a Details, Inc.) and Bain are party to a
Management Agreement dated as of October 28, 1997 (the "Management
Agreement");
Whereas, in connection with the initial public offering of common
stock of DDi Corp. (the "IPO"), the Company and Bain desire to discontinue
that portion of the Management Agreement relating to Bain's right to
participate in the negotiation and consummation of senior financing for any
acquisition transactions by, or recapitalization or refinancing transaction
of, the Company or any of its direct or indirect subsidiaries; and
Whereas, in view of the extraordinary participation of certain
employees of Bain in negotiating and consummating the Company's acquisition
of capital stock of MCM Electronics Limited and related financings matters,
the Company has agreed to pay Bain a fee of Three Million Dollars
($3,000,000);
Now, therefore, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement shall
have the definitions set forth in the Management Agreement.
2. Certain Agreements. The Company and Bain hereby agree that:
(a) the Management Agreement is hereby terminated, effective as of the
closing of the IPO;
(b) notwithstanding the foregoing, Sections 1(a), 1(b), 2(b), 4, 5, 7, 9,
10 and 11 of the Management Agreement shall survive the termination of
the Management Agreement and are hereby incorporated by reference
herein, mutatis mutandis, for all purposes to have the same effect as
if fully set forth herein, with appropriate modifications as the
context may require; and
(c) The Company hereby agrees to pay to Bain a fee of Three Million
Dollars ($3,000,000) in respect of services rendered in connection
with the negotiation
and consummation of the acquisition of the capital stock of MCM
Electronics, Limited and related matters; such amount to be paid upon
the closing of such acquisition.
3. Freedom to Pursue Opportunities. Without limiting the generality of the
foregoing Section 2(c) as it relates to Section 11 of the Management
Agreement, in consideration of the agreements of Bain set forth herein and
of the agreement of certain individuals affiliated or otherwise associated
with Bain to serve on the Board of Directors of the Company, the Company
and Bain hereby agree that in anticipation that the Company and Bain (or
one or more of its affiliates, associated investment funds or portfolio
companies, clients or individuals associated with any of the foregoing
including, without limitation, certain individuals who may from time to
time serve as directors, officers, employees of, or consultants to, the
Company) may engage in the same or similar activities or lines of business
and have an interest in the same areas of corporate opportunities, except
as Bain may otherwise agree in writing, after the date hereof:
(a) Bain shall have the right to, and shall have no duty (contractual or
otherwise) not to, directly or indirectly: (i) engage in the same or
similar business activities or lines of business as the Company,
including those competing with the Company and (ii) do business with
any client or customer of the Company;
(b) Neither Bain nor any officer, director, employee, partner, affiliate
or associated person or entity thereof shall be liable to the Company
or its affiliates for breach of any duty (contractual or otherwise) by
reason of any such activities of or of such person's participation
therein; and
(c) In the event that Bain acquires knowledge of a potential transaction
or matter that may be a corporate opportunity for both the Company and
Bain or any other person, Bain shall have no duty (contractual or
otherwise) to communicate or present such corporate opportunity to the
Company and, notwithstanding any provision of this Agreement to the
contrary, shall not be liable to the Company or its affiliates for
breach of any duty (contractual or otherwise) by reason of the fact
that Bain directly or indirectly pursues or acquires such opportunity
for itself, directs such opportunity to another person, or does not
present such opportunity to the Company.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of The Commonwealth of
Massachusetts without giving effect to any choice or conflict of law
provision or rule that would cause the application of the domestic
substantive laws of any other jurisdiction.
5. Amendments and Waivers. No amendment or waiver of any term, provision or
condition of this Agreement shall be effective as against any party, unless
in writing
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and executed such party. No waiver on any one occasion shall extend to or
effect or be construed as a waiver of any right or remedy on any future
occasion. No course of dealing of any person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this
Agreement or a waiver of any right or remedy of any party hereto.
6. Merger/Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and supersedes any
prior communication or agreement with respect thereto.
7. Counterparts. This Agreement may be executed in any number of counterparts
and by each of the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
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Termination and Fee Agreement
As of April, 14, 2000
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal on August 14, 2000, effective
as of the date first above written by its officer or representative thereunto
duly authorized.
The Company: DDi Corp.
By /s/ JOSEPH P. GISCH
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Title:
DDi Intermediate Holdings Corp.
By /s/ JOSEPH P. GISCH
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Title:
DDi Capital Corp.
By /s/ JOSEPH P. GISCH
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Title:
Dynamic Details, Incorporated
By /s/ JOSEPH P. GISCH
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Title:
Dynamic Details Incorporated,
Silicon Valley
By /s/ JOSEPH P. GISCH
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Title:
Termination and Fee Agreement
As of April, 14, 2000
Dynamic Details Incorporated, Texas
By /s/ JOSEPH P. GISCH
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Title:
Bain: Bain Capital Partners V, L.P.
By Bain Capital Investors V, Inc.,
its general partner
By /s/ EDWARD CONARD
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Title: