Exhibit 10.14
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UNITED INDUSTRIES CORPORATION
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is
entered into as of January 20, 1999, by and among THL Equity Advisors IV,
L.L.C., a Massachusetts limited liability company with its principal place of
business at 75 State Street, Boston, Massachusetts 02109 and Thomas H. Lee
Capital, L.L.C., a Delaware limited liability company with its principal place
of business at 75 State Street, Boston, Massachusetts 02109 and United
Industries Corporation, a Delaware corporation (the "Company"). THL Equity
Advisors IV, L.L.C. and Thomas H. Lee Capital, L.L.C. are each referred to
herein as a "Consultant" and collectively as the "Consultants."
WHEREAS, the Consultants have staff specially skilled in
corporate finance, strategic corporate planning and other management skills and
services;
WHEREAS, as the date hereof, the Company has completed its
recapitalization (the "Recapitalization") pursuant to the Agreement and Plan of
Recapitalization, Purchase and Redemption dated as of December 24, 1998 by and
among the Company, certain Sellers listed therein and UIC Holdings, L.L.C.;
WHEREAS, the Company will require the Consultants' special
skills and management advisory services in connection with its general business
operations; and
WHEREAS, the Consultants are willing to provide such skills
and services to the Company on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. Engagement. The Company hereby engages the Consultants
for the Term (as hereinafter defined in Section 2 below) and upon the terms and
conditions herein set forth to provide consulting and management advisory
services to the Company, as requested by the Company from time to time. These
services will be in connection with financial and strategic corporate planning
and such other management services as each Consultant and the Company shall
mutually agree. In consideration of the remuneration herein specified, each
Consultant accepts such engagement and agrees to perform the services specified
herein.
2. Term. The engagement hereunder shall be for a term
commencing on the date hereof and expiring on the third (3rd) anniversary hereof
(as such period may be extended, the "Term"). Upon expiration of the Term, this
Agreement shall automatically extend for successive periods of one (1) year,
unless the Consultants or the Company's Board of Directors shall give notice to
the other at least thirty (30) days prior to the end of the Term (including any
annual extension
thereof) indicating that such party does not intend to renew the Agreement. Upon
final expiration of the Term (including any annual extension thereof) all
obligations as between the parties and/or any third party beneficiaries shall be
extinguished without recourse to any party under this Agreement.
3. Services to be Performed. The Consultants shall devote
reasonable time and efforts to the performance of the consulting and management
advisory services contemplated by this Agreement. However, no precise number of
hours is to be devoted by the Consultants on a weekly or monthly basis. The
Consultants may perform services under this Agreement directly, through their
employees or agents, or with such outside consultants as the Consultants may
engage for such purpose.
4. Compensation; Expense Reimbursement.
(a) Closing Fee. In connection with the closing of the
Recapitalization, on the date hereof, the Company shall pay or cause to be paid
to the Consultants a closing fee of Twelve Million Dollars ($12,000,000.00) to
be paid as follows: Six Million Seven Hundred Twenty Thousand Dollars
($6,720,000.00) to THL Equity Advisors IV, L.L.C. and Five Million Two Hundred
Eighty Thousand Dollars ($5,280,000.00) to Thomas H. Lee Capital, L.L.C.
(b) Management Fee. In consideration of the management
advisory services provided by Consultants hereunder, the Company shall pay or
cause to be paid to the Consultants a monthly management fee of Sixty-Two
Thousand Five Hundred Dollars ($62,500.00) on the last day of each month during
the Term (the "Management Fee") to be paid as follows: Thirty-Five Thousand
Dollars ($35,000.00) to THL Equity Advisors IV, L.L.C. and Twenty-Seven Thousand
Five Hundred Dollars ($27,500.00) to Thomas H. Lee Capital, L.L.C. Payment of
the Management Fee shall be subject to the terms of that certain Subordination
Agreement of even date herewith executed and delivered by Consultants in favor
of the Administrative Agent and the other Secured Parties under that certain
Credit Agreement dated as of January 20, 1999 among the Company, the banks,
financial institutions and other institutional lenders from time to time party
thereto, NationsBank, N.A. as Swing Line Bank and Initial Issuing Bank
thereunder, NationsBanc Montgomery Securities LLC and Morgan Stanley Senior
Funding, Inc., as Co-Arrangers therefor, Canadian Imperial Bank of Commerce, as
Documentation Agent therefor, Morgan Stanley Senior Funding, Inc. as Syndication
Agent thereunder, NationsBanc Montgomery Securities LLC, as Lead Arranger
therefor, and NationsBank, N.A., as Administrative Agent for the Lender Parties
(the "THL Subordination Agreement").
(c) Expense Reimbursement. The Company shall promptly
reimburse the Consultants for all reasonable out-of-pocket expenses incurred in
connection with management advisory services to be provided by the Consultants
hereunder, including, without limitation, reasonable travel, lodging and similar
out-of-pocket costs reasonably incurred by it in connection with or on account
of its performance of services for the Company hereunder. Reimbursement shall
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be made only upon presentation to the Company by the Consultants of reasonably
itemized documentation therefor.
5. Liability. Neither of the Consultants nor any of their
respective affiliates, officers, directors, stockholders, partners, employees,
agents, representatives, successors or assigns (collectively, "Consultant
Parties") shall be liable to the Company or any of its subsidiaries, affiliates,
stockholders, employees, agents, representatives, successors or assigns, for any
loss, liability, damage or expense (collectively, "Losses") arising out of or in
connection with the performance of services contemplated by this Agreement,
except to the extent such Losses are finally judicially determined to result
from actions taken by the Consultant Parties due primarily to the Consultant
Parties' gross negligence or willful misconduct.
6. Indemnification. The Company agrees to defend, indemnify
and hold harmless each of the Consultant Parties from and against any and all
claims and Losses (or actions in respect thereof), in any way related to or
arising out of the performance by the Consultant Parties of services under this
Agreement, and to reimburse each of the Consultant Parties for reasonable
out-of-pocket legal and other expenses incurred by it in connection with or
relating to investigating, preparing to defend, or defending any actions, claims
or other proceedings (including any investigation or inquiry) arising in any
manner out of or in connection with this Agreement (whether or not such
indemnified person is a named party in such proceeding); provided, however, that
the Company shall not be responsible under this Section 6 for any Losses to the
extent that they are finally judicially determined to result from actions taken
by the Consultant Parties due primarily to the Consultant Parties' gross
negligence or willful misconduct.
7. Notice. All notices hereunder, to be effective, shall be
in writing and shall be mailed by certified mail, postage prepaid as follows (or
to such other address as shall be given by one party to the other in writing):
(i) To the Consultants:
THL Equity Advisors IV, L.L.C.
75 State Street
Boston, Massachusetts 02109
Attention: C. Hunter Boll, Scott A. Schoen
Thomas H. Lee Capital, L.L.C.
75 State Street
Boston, Massachusetts 02109
Attention: C. Hunter Boll, Scott A. Schoen
(iii) To the Company:
United Industries Corporation
8825 Page Boulevard
St. Louis, Missouri 63114
Telecopy: (314) 253-5941
Attention: President
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8. Modifications. This Agreement and the THL Subordination
Agreement constitute the entire agreement between the parties hereto with regard
to the subject matter hereof, superseding all prior understandings and
agreements whether written or oral. This Agreement may not be amended or revised
except by a writing signed by each of the parties.
9. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns but may not be assigned by either party without the prior written
consent of the other party.
10. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
11. Governing Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by, and construed in accordance with, the laws of the Commonwealth
of Massachusetts, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the Commonwealth of Massachusetts or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the Commonwealth of Massachusetts.
12. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
THL EQUITY ADVISORS IV, L.L.C.
By:
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Name:
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Title:
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THOMAS H. LEE CAPITAL, L.L.C.
By:
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Name:
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Title:
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UNITED INDUSTRIES CORPORATION
By:
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Name:
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Title:
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