EXHIBIT 10.4
MANAGEMENT AGREEMENT
AGREEMENT, effective as of the first day of January 2000 by and
between Gateway Industries, Inc. a Delaware corporation having an office at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Steel Partners Services, Ltd.
("SPS") a Delaware Limited Liability Corporation having an office at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Company desires to have SPS furnish certain management
advisory and consulting services to the Company, and SPS has agreed to furnish
such management advisory and consulting services, pursuant to the terms and
conditions hereinafter set forth; and
WHEREAS, this Agreement has been approved by a majority of the
disinterested directors of the Company.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby agree as follows:
Section 1. ENGAGEMENT OF SPS
1.01 During the term of this Agreement, SPS shall provide to the
Company such management advisory and consulting services (the "Services"), as
more fully described and defined below, as may be necessary or desirable or as
may be reasonably requested or required, in connection with the business,
operations and affairs, both ordinary and extraordinary, of the Company and its
subsidiaries and affiliates. "Services" means and includes, without limitation,
the furnishing of office space, advice, assistance and guidance, and personnel
to implement the same, in connection with, among others, executive,
administrative, financial, managerial, operation, supervisory and related
matters, including without limitation those matters set forth on Exhibit A
hereto. In connection with such Services and subject to the approval of the
Company's Board of Directors, SPS will provide the services of (a) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ or such other suitable officer and employee to serve as Chief
Executive Officer of the Company and (b) such other suitable officer and
employee of SPS to serve as Chief Financial Officer of the Company or such other
executive position as SPS may provide from time to time.
In performing Services, SPS shall be subject to the supervision and
control of the board of directors of the Company. In no event shall SPS incur an
obligation or enter into any transaction on behalf of the Company involving in
excess of $100,000 without the prior approval of the board of directors of the
Company.
1.02 While the amount of time and personnel required for performance
by SPS hereunder will necessarily vary depending upon the nature and type of
Services, SPS shall devote such time and effort and make available such
personnel as may from time to time reasonably be required for the performance of
Services hereunder.
Section 2. TERM
This Agreement shall commence effective as of January 1, 2000, shall
continue for a one (1) year term thereafter, and shall automatically renew for
successive one year periods unless and until terminated by either party, at any
time and for any reason, upon not less than sixty (60) days written notice to
the other prior to the end of the year. If an involuntary or voluntary case or
proceeding is commenced against or by the Company under the United States
Bankruptcy Code, as amended, or any similar federal or state statutes, either
party hereto may terminate this Agreement upon 30 days prior written notice to
the other.
Section 3. Payments to SPS. In consideration of Services furnished
by SPS hereunder, the Company shall pay to SPS a fixed monthly fee, which shall
be adjustable annually upon agreement by the parties, and shall reimburse SPS
for certain expenses including legal and consulting fees incurred on behalf of
the Company, as well as all reasonable and necessary business expenses incurred
in performance of Services, in accordance with the following:
3.01 Company shall pay SPS a fixed monthly fee of $23,333.33
($280,000 annually) in advance on the first day of each month. Payment of such
fixed monthly fee for the months for which SPS has heretofore provided Services,
if not already paid, shall be made immediately following execution of this
Agreement.
Section 4. INDEMNITY.
The Company shall defend, indemnify, save and hold harmless SPS from
and against any obligation, liability, cost or damage resulting from SPS's
actions under the terms of this Agreement, except to the extent occasioned by
gross negligence or willful misconduct of SPS's officers, directors or
employees. The Company's obligation to indemnify SPS hereunder shall extend to
and inure to the benefit of SPS's officers, directors, employees and
consultants.
Section 5. CONFIDENTIAL INFORMATION.
SPS shall not at any time during or following the termination or
expiration for any reason of this Agreement, directly or indirectly, disclose,
publish or divulge to any person (except where necessary in connection with the
furnishing of Services under this Agreement), appropriate or use, or cause or
permit any other person to appropriate or use, any of the Company's inventions,
discoveries, improvements, trade secrets, copyrights or other proprietary,
secret or confidential information not then publicly available.
Section 6. GENERAL.
6.01 This Agreement constitutes the entire agreement of the parties
with respect to the transactions contemplated hereby and may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
6.02 All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered or mailed by regular
first-class mail, in each case, however, only against receipt, or if mailed by
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first class registered or certified mail, return receipt requested, exclusively
therein, without giving effect to the principles of conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written.
Steel Partners Services, Ltd.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Gateway Industries
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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3
Exhibit A
1. Responsibility for any and all financing matters for the Company and
its subsidiaries including but not limited to debt, equity or other
financings, whether through the public markets or in private
transactions, or otherwise, including the negotiation and
consummation of all of the foregoing.
2. Review of annual and quarterly budgets and related matters.
3. Supervise and administer, as appropriate, all accounting/financial
duties and related functions on behalf of the Company for its
operations and business matters (including control of the Company's
cash, checking accounts, revenue receipts, disbursements,
bookkeeping, accounts, ledgers, ▇▇▇▇▇▇▇▇, payroll and related
matters).
4. Review and supervise the Company's presently existing reporting
obligations under United States Securities and Exchange Commission
regulations for a public corporation as well as under related state
laws.