EXHIBIT 10.7
ADVISORY AGREEMENT
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This Advisory Agreement (this "Agreement") is made and entered into as
of May 1, 2003 by and among FastenTech, Inc, a Delaware corporation
("FastenTech") and the subsidiaries of FastenTech set forth on the signature
pages hereto and such other subsidiaries of FastenTech as shall join in this
Agreement (the "FastenTech Subsidiaries," and collectively with FastenTech, the
"Companies"), and Citicorp Venture Capital Ltd., a New York corporation
("Advisor").
WHEREAS, the Companies desire to retain Advisor and Advisor desires to
perform for the Companies and/or their subsidiaries certain services;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
1. Term. This Agreement shall be in effect for an initial term of ten
(10) years commencing on the date hereof (the "Term"), and shall be
automatically extended thereafter on a year to year basis unless the Companies
provide or Advisor provides written notice of its or their desire to terminate
this Agreement to the other party 90 days prior to the expiration of the Term or
any extension thereof.
2. Services. Advisor shall perform or cause to be performed such of
the following services for the Companies and/or their subsidiaries as directed
by such Company's board of directors:
(a) identification, support and analysis of mergers, acquisitions
and divestitures by such Company or its subsidiaries; and
(b) such other services for such Company or its subsidiaries upon
which such Company's board of directors and Advisor agree.
Notwithstanding any provision in this Agreement to the contrary, each
of the parties hereto acknowledges and agrees that there are no minimum levels
of services required to be provided to the Companies pursuant to this Agreement.
3. Advisory Fee.
(a) Transaction Advisory Fees. During the term of this Agreement,
the Companies shall pay to Advisor or its designees a transaction fee in
connection with the consummation of each merger, acquisition, or divestiture by
any of the Companies or their subsidiaries in an amount not less than one
percent (1%) of the aggregate consideration of such transaction, including any
liabilities assumed, plus reasonable out-of-pocket expenses.
(b) High Yield Offering Management Fees. During the term of this
Agreement, the Companies hereby agree to pay to Advisor or its designee upon the
consummation of a High Yield Note Offering, a fee for services rendered in
connection with such offering and sale in an amount equal to the product of (i)
one percent (1%) and (ii) the
aggregate principal amount of debt securities issued in such High Yield Note
Offering and the fair market value of any other securities issued in conjunction
with such High Yield Note Offering, plus reasonable out-of-pocket expenses. For
purposes hereof, the term "High Yield Note Offering" shall mean an issuance, in
one or a series of transactions, by any one or more of the Companies of
$75,000,000 or more in unsecured debt securities with a weighted average
maturity of at least five (5) years pursuant to (i) a completed firm commitment
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or (ii) a completed placement under Rule
144A promulgated under the Securities Act of 1933, as amended.
(c) Collection of Fee. Subject to the limitation described in
Section 3(e) below, the decision whether to collect any fee contemplated by this
Agreement (an "Advisory Fee") in respect of any given transaction shall be made
in the Advisor's sole discretion. The Advisor's decision not to collect or to
defer an Advisory Fee in respect of any transaction shall not be construed to be
a waiver of the Advisor's right to collect a deferred Advisory Fee or an
Advisory Fee in any future period.
(d) Expenses. The Companies hereby agree to pay the reasonable
out-of-pocket expenses of Advisor and its affiliates incurred in connection with
the performance of the services contemplated by this Agreement.
(e) Restrictions. Notwithstanding any other provision of this
Section 3, the Companies shall not be required to pay any of the fees
contemplated by Section 3(a), if and to the extent such payment is expressly
prohibited by the provisions of the Credit Agreement, dated as of May 1, 2003,
as amended (the "Credit Agreement") by and among certain of the Companies,
JPMorgan Chase Bank, as agent for the lenders and the lenders named therein, as
it may be amended, modified or supplemented, from time to time, or any other
credit, financing or other agreements or instruments binding upon the Companies
or their properties; provided, however, that if, as a result of the operation of
any such prohibitions, payments otherwise owed hereunder are not made, such
payments shall not be cancelled but rather shall accrue, and shall be payable by
the Companies promptly when, and to the extent that, the Companies are no longer
prohibited from making such payments, together with accrued interest calculated
at the Base Rate of interest then charged under the foregoing Credit Agreement
from the date such payment was due through the date of payment, which accrued
interest shall constitute additional advisory fees under this Agreement for all
purposes, including but not limited to, Section 3(a) of this Agreement. Other
than the foregoing Credit Agreement, the Companies will not enter into any such
agreements or instruments without the prior written approval of the Advisor.
This Section 3(e) will not prohibit nor restrict, in any manner, the Companies'
obligation to make the payments specified in Section 3(b), to make
reimbursements pursuant to Section 3(d), to provide indemnification pursuant to
Section 6, or to make any other payments contemplated by this Agreement.
(f) Delivery of Fees. All fees payable to Advisor or its
designees, including the additional advisory fees contemplated by Section 3(f)
of this Agreement, shall be payable by wire transfer to an account designated in
writing by the Advisor.
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4. Personnel. Advisor shall provide and devote to the performance of
this Agreement such officers, partners, employees and agents of Advisor as
Advisor shall deem appropriate to the furnishing of the services required.
5. Liability. Neither Advisor nor any other Indemnitee (as defined in
Section 6 below) shall be liable to any of the Companies or any of their
subsidiaries or affiliates for any loss, liability, damage or expense arising
out of or in connection with the performance of services contemplated by this
Agreement, unless such loss, liability, damage or expense shall be proven to
result directly from gross negligence, willful misconduct or bad faith on the
part of an Indemnitee acting within the scope of such person's employment or
authority. Advisor makes no representations or warranties, express or implied,
in respect of the services to be provided by Advisor or any of the other
Indemnitees. Except as Advisor may otherwise agree in writing after the date
hereof: (i) Advisor shall have the right to, and shall have no duty (contractual
or otherwise) not to, directly or indirectly: (A) engage in the same or similar
business activities or lines of business as any of the Companies or any of their
subsidiaries, including those competing with any of the Companies or any of
their subsidiaries and (B) do business with any client or customer of any of the
Companies or any of their subsidiaries; (ii) neither Advisor nor any officer,
director, employee, partner, affiliate or associated entity thereof shall be
liable to any of the Companies or any of their subsidiaries or affiliates for
breach of any duty (contractual or otherwise) by reason of any such activities
of or of such person's participation therein; and (iii) in the event that
Advisor acquires knowledge of a potential transaction or matter that may be a
corporate opportunity for the Companies or any of their subsidiaries, on the one
hand, and Advisor, on the other hand, or any other person, Advisor shall have no
duty (contractual or otherwise) to communicate or present such corporate
opportunity to the Companies or any of their subsidiaries and, notwithstanding
any provision of this Agreement to the contrary, shall not be liable to the
Companies or any of their affiliates for breach of any duty (contractual or
otherwise) by reasons of the fact that Advisor directly or indirectly pursues or
acquires such opportunity for itself, directs such opportunity to another
person, or does not present such opportunity to the Companies. In no event will
any of the parties hereto be liable to any other party hereto for any indirect,
special, incidental or consequential damages, including lost profits or savings,
whether or not such damages are foreseeable, or in respect of any liabilities
relating to any third party claims (whether based in contract, tort or
otherwise) other than the Claims (as defined in Section 6 below) relating to the
service to be provided by Advisor hereunder.
6. Indemnity. Each of the Companies and their subsidiaries shall
defend, indemnify and hold harmless each of Advisor, its affiliates, members,
partners, employees and agents (collectively, the "Indemnitees") from and
against any and all loss, liability, damage or expenses arising from any claim
by any person with respect to, or in any way related to, the performance of
services contemplated by this Agreement (including attorneys' fees)
(collectively, "Claims") resulting from any act or omission of any of the
Indemnitees, other than for Claims which shall be proven to be the direct result
of gross negligence, bad faith or willful misconduct by an Indemnitee. Each of
the Companies and their subsidiaries shall defend at its own cost and expense
any and all suits or actions (just or unjust) which may be brought against any
such Company, any of its subsidiaries or any of the Indemnitees or in which any
of the Indemnitees may be impleaded with others upon any Claims, or upon any
matter, directly or indirectly, related to or arising out of this Agreement or
the performance hereof by any of the Indemnitees, except that if such damage
shall be proven to be the direct result of gross
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negligence, bad faith or willful misconduct by an Indemnitee, then Advisor shall
reimburse the Companies and their subsidiaries for the costs of defense and
other costs incurred by the Companies and their subsidiaries to the extent due
to such gross negligence, bad faith or willful misconduct.
7. Notices. All notices hereunder shall be in writing and shall be
delivered personally, sent by overnight courier or mailed by United States mail,
postage prepaid, or sent by facsimile addressed to the parties as follows:
To the Companies as appropriate:
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FastenTech, Inc.
8500 Normandale Lake Blvd.
Suite 1230
Bloomington, MN 55437
Attention: President
Telecopy: 952.921.2099
To Advisor:
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Citicorp Venture Capital, Ltd.
399 Park Avenue, 14th Floor
Zone 4
New York, NY 10043
Attention: Charles E. Corpening
Facsimile: 212.888.2940
8. Assignment. The Companies may not assign any obligations hereunder
to any other party without the prior written consent of Advisor (which consent
shall not be unreasonably withheld), and Advisor may not assign any Advisor
obligations hereunder to any other party without the prior written consent of
the Companies (which consent shall not be unreasonably withheld); provided, that
Advisor may, without consent of the Companies, assign its rights and obligations
under this Agreement to any Permitted Transferee (as such term is defined in the
Securities Purchase and Holders Agreement, dated March 17, 2000 by and among the
Company, Advisor, the management investors (as defined therein) and certain
other investors named therein.
9. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and assigns of the parties.
10. Counterparts. This Agreement may be executed and delivered by each
party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
11. Entire Agreement; Modification; Governing Law. The terms and
conditions hereof constitute the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supersede all previous
communications, either oral or
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written, representations or warranties of any kind whatsoever, except as
expressly set forth herein. No modifications of this Agreement nor waiver of the
terms or conditions thereof shall be binding upon either party unless approved
in writing by an authorized representative of such party. All issues concerning
this Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the law of any jurisdiction
other than the State of New York.
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IN WITNESS WHEREOF, the parties have executed this Advisory Agreement
as of the date first written above.
FASTENTECH, INC
By:
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Name:
Title:
CITICORP VENTURE CAPITAL, LTD.
By:
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Name:
Title:
Subsidiaries:
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FABRI-STEEL PRODUCTS, INC.
By:
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Name:
Title:
THE FERRY CAP AND SET SCREW COMPANY
By:
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Name:
Title:
SPECIALTY BAR PRODUCTS COMPANY
By:
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Name:
Title:
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NELSON STUD WELDING, INC.
By:
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Name:
Title:
PROGRESSIVE STAMPING COMPANY (DE),
INC.
By:
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Name:
Title:
INTEGRATED ENERGY TECHNOLOGIES, INC.
By:
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Name:
Title:
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