{"id":42504,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/management-agreement-united-defense-industries-inc-united.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"management-agreement-united-defense-industries-inc-united","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/management-agreement-united-defense-industries-inc-united.html","title":{"rendered":"Management Agreement &#8211; United Defense Industries Inc, United Defense LP and TC Group Management LLC"},"content":{"rendered":"<pre>                              MANAGEMENT AGREEMENT\n\n\n          This Management Agreement (the 'AGREEMENT') is made as of the 6th \nday of October, 1997, by and between United Defense Industries, Inc., a \nDelaware Corporation ('UDI'), United Defense, L.P., a Delaware limited \npartnership (the 'COMPANY'), and TC Group Management, L.L.C., a Delaware \nlimited liability company ('CARLYLE').\n\n                                    RECITALS:\n\n          WHEREAS, Carlyle, by and through its officers, employees, agents,\nrepresentatives and affiliates, has expertise in the areas of corporate\nmanagement, finance, product strategy, investment, acquisitions and other\nmatters relating to the business of the Company and UDI; \n\n          WHEREAS, UDI and a subsidiary of UDI collectively own 100% of the\noutstanding partnership interests of the Company; and\n\n          WHEREAS, the Company and UDI desire to avail themselves of the\nexpertise of Carlyle in the aforesaid areas, in which they acknowledge the\nexpertise of Carlyle.\n\n                                   AGREEMENT:\n\n          NOW, THEREFORE, in consideration of the foregoing recitals and the\ncovenants and conditions herein set forth, the parties hereto agree as follows:\n\n          1.   APPOINTMENT.  The Company and UDI hereby appoint Carlyle to\nrender the advisory and consulting services described in Section 2 hereof for\nthe term of this Agreement.\n\n          2.   SERVICES.\n\n               (a)  Carlyle hereby agrees that during the term of this Agreement\nit shall render to the Company and UDI, by and through such of Carlyle's\nofficers, employees, agents, representatives and affiliates as Carlyle, in its\nsole discretion, shall designate from time to time, advisory, consulting and\nother services (the 'OVERSIGHT SERVICES') in relation to the day-to-day\noperations of the Company and UDI, strategic planning, domestic and\ninternational marketing and financial oversight and including, without\nlimitation, advisory and consulting services in relation to the selection,\nretention and supervision of independent auditors, the selection, retention and\nsupervision of outside legal counsel, and the selection, retention and\nsupervision of investment bankers or other financial advisors or consultants.  \n\n               (b)  The parties hereto acknowledge that certain events will\nrequire Carlyle to render services beyond the scope of activities which the\nparties contemplate as part\n\n\n\n\n\nof the Oversight Services and for which Carlyle shall be entitled to \nadditional compensation hereunder.  It is expressly agreed that the Oversight \nServices shall not include Investment Banking Services and Management Equity \nConsulting Services.  'INVESTMENT BANKING SERVICES' means investment banking, \nfinancial advisory or any other services rendered by Carlyle to the Company \nor UDI in connection with (i) the acquisition by UDI and its subsidiaries of \nall of the outstanding partnership interests of the Company pursuant to that \ncertain Purchase Agreement, dated as of August 25, 1997, by and between FMC \nCorporation, Harsco Corporation, Harsco UDLP Corporation and UDI and the \nfinancing thereof (together, the 'ACQUISITION TRANSACTIONS'), (ii) any \nacquisitions and divestitures by the Company or UDI or any of their \nsubsidiaries, including, without limitation, the sale of substantially all of \nthe assets of the Company, whether by a sale of assets, the capital stock of \nUDI, merger or otherwise, and the acquisition or sale of any subsidiary or \ndivision of UDI or the Company, or (iii) the public or private sale of debt \nor equity securities of the Company or UDI or any similar financing \ntransactions.  'MANAGEMENT EQUITY CONSULTING SERVICES' means consulting \nservices performed by Carlyle in connection with the structuring and \nimplementation of an executive stock option plan or similar equity plan, an \nemployee stock purchase or equity purchase plan and employment agreements for \ncertain key executives of UDI and UDLP.  The Investment Banking Services and \nthe Management Equity Consulting Services shall be referred to herein as \n'ADDITIONAL SERVICES,' and together with the Oversight Services, the \n'SERVICES.'\n\n          3.   FEES.  \n\n               (a)  In consideration of the performance of the Oversight \nServices contemplated by Section 2(a) hereof, the Company and its successors \nagree to pay to Carlyle an aggregate per annum fee (the 'FEE') equal to Two \nMillion Dollars ($2,000,000), commencing on the date hereof and continuing \nuntil such time as this Agreement is terminated in accordance with Section 6 \nor by the mutual written consent of the parties hereto.  The Fee shall be \npayable quarterly in advance.  Fee payments shall be non-refundable.\n\n               (b)  In consideration of the Investment Banking Services provided\nto UDI and the Company in connection with the Acquisition Transactions, the\nCompany shall pay to Carlyle Four Million Five Hundred Thousand Dollars\n($4,500,000) in cash, payable at such time as the Acquisition Transactions are\nconsummated.\n\n               (c)  In consideration of the performance of the Management Equity\nConsulting Services to be provided to UDI and the Company, the Company shall pay\nto Carlyle Two Million Dollars ($2,000,000) in cash, payable after Carlyle has\ncompleted performance of the Management Equity Consulting Services.  Performance\nof the Management Equity Consulting Services shall be deemed to be complete when\neach of the following conditions has been satisfied: (i) the Board of Directors\nof UDI adopts UDI's initial employee stock option plan (or similar management\nequity incentive compensation program) or determines that no such plan should be\nadopted, (ii) UDI completes the\n\n\n\n\ncurrently contemplated employee stock offering or the Board of Directors of \nUDI determines that UDI should not effect such an offering and (iii) Carlyle \n(on behalf of UDI and the Company) completes negotiation of definitive \nemployment agreements between UDI and the key management employees (if any) \ndesignated by the Board of Directors of UDI.\n\n               (d)  In consideration of the Additional Services provided to the\nCompany or UDI in connection with the events described in clauses (ii) and (iii)\nof the definition of Investment Banking Services, Carlyle shall be entitled to\nreceive additional reasonable compensation as agreed upon by the parties hereto\nand approved by the majority of the disinterested members of the Board of\nDirectors of UDI.\n\n          4.   REIMBURSEMENTS.  In addition to the compensation payable to\nCarlyle pursuant to Section 3 hereof, the Company shall, at the direction of\nCarlyle, pay directly, or reimburse Carlyle for, its reasonable Out-of-Pocket\nExpenses.  For the purposes of this Agreement, the term 'OUT-OF-POCKET EXPENSES'\nshall mean the amounts actually paid by Carlyle in cash in connection with its\nperformance of the Services, including, without limitation, reasonable (i) fees\nand disbursements (including, without limitation, underwriting fees) of any\nindependent professionals and organizations, including, without limitation,\nindependent auditors, outside legal counsel, consultants, investment bankers or\nfinancial advisors, (ii) costs of any outside services or independent\ncontractors such as financial printers, couriers, business publications or\nsimilar services and (iii) transportation, per diem, telephone calls, word\nprocessing expenses or any similar expense not associated with its ordinary\noperations.  All reimbursements for Out-of-Pocket Expenses shall be made\npromptly upon or as soon as practicable after presentation by Carlyle to the\nCompany of the statement in connection therewith.\n\n          5.   INDEMNIFICATION.  The Company and UDI will jointly and \nseverally indemnify and hold harmless Carlyle and its officers, employees, \nagents, representatives, members and affiliates (each being an 'INDEMNIFIED \nPARTY') from and against any and all losses, costs, expenses, claims, damages \nand liabilities (the 'LIABILITIES') to which such Indemnified Party may \nbecome subject under any applicable federal or state law, or any claim made \nby any third party, or otherwise, to the extent they relate to or arise out \nof the performance of the Services contemplated by this Agreement or the \nengagement of Carlyle pursuant to, and the performance by Carlyle of the \nServices contemplated by, this Agreement.  The Company will reimburse any \nIndemnified Party for all reasonable costs and expenses (including reasonable \nattorneys' fees and expenses) as they are incurred in connection with the \ninvestigation of, preparation for or defense of any pending or threatened \nclaim for which the Indemnified Party would be entitled to indemnification \nunder the terms of the previous sentence, or any action or proceeding arising \ntherefrom, whether or not such Indemnified Party is a party hereto, provided \nthat, subject to the following sentence, the Company and UDI shall be \nentitled to jointly assume the defense thereof at their own expense, with \ncounsel satisfactory to such Indemnified Party in its reasonable judgment.  \nAny Indemnified Party may, at its own expense, retain separate counsel to \nparticipate in such defense, and in any action, claim or proceeding in which \nthe Company and UDI, on the one\n\n\n\nhand, and an Indemnified Party, on the other hand, is, or is reasonably \nlikely to become, a party, such Indemnified Party shall have the right to \nemploy separate counsel at the Company's and UDI's expense and to control its \nown defense of such action, claim or proceeding if, in the reasonable opinion \nof counsel to such Indemnified Party, a conflict or potential conflict exists \nbetween the Company, on the one hand, and such Indemnified Party, on the \nother hand, that would make such separate representation advisable.  The \nCompany and UDI agree that neither the Company nor UDI will, without the \nprior written consent of the applicable Indemnified Party, settle, compromise \nor consent to the entry of any judgment in any pending or threatened claim, \naction or proceeding relating to the matters contemplated hereby (if any \nIndemnified Party is a party thereto or has been actually threatened to be \nmade a party thereto) unless such settlement, compromise or consent includes \nan unconditional release of the applicable Indemnified Party and each other \nIndemnified Party from all liability arising or that may arise out of such \nclaim, action or proceeding.  Provided that the Company or UDI are not in \nbreach of its indemnification obligations hereunder, no Indemnified Party \nshall settle or compromise any claim subject to indemnification hereunder \nwithout the consent of the Company and UDI.  The Company and UDI will not be \nliable under the foregoing indemnification provision to the extent that any \nloss, claim, damage, liability, cost or expense is determined by a court, in \na final judgment from which no further appeal may be taken, to have resulted \nsolely from the gross negligence or willful misconduct of Carlyle.  If an \nIndemnified Party is reimbursed hereunder for any expenses, such \nreimbursement of expenses shall be refunded to the extent it is finally \njudicially determined that the Liabilities in question resulted solely from \nthe gross negligence or willful misconduct of Carlyle.\n\n          6.   TERM.  This Agreement shall be in effect on the date hereof and\nshall continue until such time as Carlyle or one or more of its affiliates\ncollectively control, in the aggregate, less than 10% of the outstanding shares\nof voting common stock of UDI.  The provisions of Sections 5, 7 and 8 and\notherwise as the context so requires shall survive the termination of this\nAgreement.  \n\n          7.   PERMISSIBLE ACTIVITIES.  Nothing herein shall in any way \npreclude Carlyle or its officers, employees, agents, representatives, members \nor affiliates from engaging in any business activities or from performing \nservices for its or their own account or for the account of others, including \nfor companies that may be in competition with the business conducted by the \nCompany. \n\n          8.   GENERAL.\n\n               (a)  No amendment or waiver of any provision of this \nAgreement, or consent to any departure by either party from any such \nprovision, shall be effective unless the same shall be in writing and signed \nby the parties to this Agreement, and, in any case, such amendment, waiver or \nconsent shall be effective only in the specific instance and for the specific \npurpose for which given.\n\n\n\n               (b)  This Agreement and the rights of the parties hereunder may\nnot be assigned without the prior written consent of the parties hereto;\nPROVIDED, HOWEVER, Carlyle may assign or transfer its duties or interests\nhereunder to a Carlyle affiliate at the sole discretion of Carlyle.\n\n               (c)  Any and all notices hereunder shall, in the absence of\nreceipted hand delivery, be deemed duly given when mailed, if the same shall be\nsent by registered or certified mail, return receipt requested, and the mailing\ndate shall be deemed the date from which all time periods pertaining to a date\nof notice shall run.  Notices shall be addressed to the parties at the following\naddresses:\n\nIf to Carlyle: TC Group Management, L.L.C.\n               c\/o The Carlyle Group\n               1001 Pennsylvania Avenue, N.W.\n               Suite 220 South\n               Washington, D.C.  20004\n               Attention:  Allan M. Holt\n          \nIf to UDI:     United Defense Industries, Inc.\n               c\/o The Carlyle Group\n               1001 Pennsylvania Avenue, N.W.\n               Suite 220 South\n               Washington, D.C.  20004\n               Attention:  Allan M. Holt\n\nIf to UDLP     United Defense, L.P.\n               1525 Wilson Boulevard\n               Suite 700\n               Arlington, VA  22209\n               Attention:  Thomas Rabaut\n\n               (d)  This Agreement shall constitute the entire agreement \nbetween the parties with respect to the subject matter hereof, and shall \nsupersede all previous oral and written (and all contemporaneous oral) \nnegotiations, commitments, agreements and understandings relating hereto.\n\n               (e)  This Agreement shall be governed by, and enforced in \naccordance with, the laws of the State of Delaware (excluding the choice of \nlaw principles thereof).  The parties to this Agreement hereby agree to \nsubmit to the non-exclusive jurisdiction of the federal and state courts \nlocated in the state of Delaware in any action or proceeding arising out of \nor relating to this Agreement.  This Agreement shall inure to the benefit of, \nand be binding upon, Carlyle, UDI and the Company (including any present or \nfuture subsidiaries of the Company and UDI that are not signatories hereto), \nand their respective successors and assigns.\n\n\n\n\n               (f)  This Agreement may be executed in two or more \ncounterparts, and by different parties on separate counterparts.  Each set of \ncounterparts showing execution by all parties shall be deemed an original, \nand shall constitute one and the same instrument.\n\n               (g)  The waiver by any party of any breach of this Agreement\nshall not operate as or be construed to be a waiver by such party of any\nsubsequent breach.\n\n               IN WITNESS WHEREOF, the parties have caused this Agreement to be\nexecuted and delivered by their duly authorized officers or agents as set forth\nbelow.\n\n\n                         TC GROUP MANAGEMENT, L.L.C.\n\n                         By:  TCG Holdings, L.L.C.\n                         Its: Managing Member\n\n\n\n                         By: \/s\/ Allan M. Holt\n                            Name:  Allan M. Holt\n                            Title: Managing Director\n\n                         UNITED DEFENSE INDUSTRIES, INC.\n\n\n\n                         By: \/s\/ Allan M. Holt\n                            Name:  Allan M. Holt\n                            Title: President\n\n\n                         UNITED DEFENSE, L.P.\n\n                         By:  UDLP Holdings Corp.\n                         Its: General Partner\n\n\n\n                         By: \/s\/ Allan M. Holt\n                            Name:  Allan M. Holt\n                            Title: President\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9167],"corporate_contracts_industries":[9477],"corporate_contracts_types":[9613,9620],"class_list":["post-42504","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-united-defense-industries-inc","corporate_contracts_industries-aerospace__vehicles","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42504","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42504"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42504"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42504"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42504"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}