Exhibit 10.3
TURNAROUND SERVICES AGREEMENT
THIS TURNAROUND SERVICES AGREEMENT (this "Agreement") is made effective
the 30th day of January, 2004, by and between Global Energy Group, Inc., a
Delaware corporation (the "Company"), and Turnaround Specialists, L.L.C., a
Texas limited liability company ("Manager").
WHEREAS, the Company operates a HVAC and energy conservation business
(the "Business").
WHEREAS, the Company desires to engage Manager on an exclusive basis to
provide its experience, skills, supervision and certain resources and personnel
in supporting the management and operations of the Company and its Business, and
Manager desires to provide such services, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the parties hereto agree as follows:
1. TERM. The term of this Agreement shall begin on the Effective Date
(as defined below) and shall continue for a period of three (3) years thereafter
(the "Term"), subject to prior termination in accordance with the terms hereof.
The "Effective Date" shall mean the date and year first above written.
2. MANAGEMENT SERVICES.
(a) The Company hereby retains Manager to assist and work with
the Company's internal management team with respect to the Company's
operations. The Company shall at all times retain its authority,
ultimate control, powers and responsibility as owner and operator of
the Business, and shall be responsible for all costs, expenses and
liabilities associated with the operation of the Company and its
Business. Subject to the foregoing, Manager shall have responsibility
for the Company's operations in the following areas: staffing levels,
hiring and termination of key staff personnel, sales contracting and
pricing, organizational structural matters, purchasing, financing,
accounting and operational policies.
(b) Without limiting the provisions of Section 2(a), Manager's
responsibilities shall include the following:
- Manager shall designate ▇▇▇▇▇▇ ▇▇▇ to serve
as the primary oversight executive
coordinating all activities pertaining to
the ongoing management and operation of the
Company. The Manager may designate an
alternative to ▇▇▇▇▇▇ ▇▇▇ to serve in this
position with the agreement of the Company's
Board of Directors.
- Manager shall designate ▇▇▇▇ ▇. ▇▇▇▇▇▇ to
serve as the primary oversight executive
coordinating all activities pertaining to
financing and accounting policies of the
Company. The Manager may designate an
alternative to ▇▇▇▇ ▇. ▇▇▇▇▇▇ to serve in
this position with the agreement of the
Company's Board of Directors.
TURNAROUND SERVICES AGREEMENT - PAGE 1
- Ensure that commercially reasonable
operational and financial policies and
procedures are in place, personnel are in
compliance and that the Company is in
compliance with federal and state
regulations and licensure requirements.
- Evaluate existing reimbursement processes,
information systems and financial reporting
activities, and implement changes necessary
to maximize profitability of the Company's
business.
- Implement commercially reasonable planning
and budgeting process for the operating and
capital expenditures of the Company.
- Develop commercially reasonable performance
metrics, based on industry standards and
periodically measure results.
- Develop commercially reasonable sales and
marketing strategy, and allocate resources
necessary to execute the plan.
(c) Manager shall provide a written report to the
Company's Board of Directors on a quarterly basis regarding the status
of operations, financial results, sales initiatives, strategic plans
and such other matters as the Board may reasonably request. The first
such report shall be due April 15, 2004. Manager's senior management
shall be made available to meet with the Company's Board and discuss
the written report and other matters regarding the Company and its
operations.
3. LAWS, REGULATIONS, LICENSES, ETC. Manager shall comply with
all applicable non-bankruptcy federal, state, and local laws, rules, and
regulations relating to the Company's operations and shall help manage the
Business in a manner that will permit the Company to maintain all necessary
licenses, permits, consents, and approvals from all governmental agencies that
have jurisdiction over the Company's operations.
4. MANAGEMENT FEES. As compensation for the services to be
provided hereunder, the Company shall pay Manager a fee of $45,000 per month.
Such fees shall be paid in advance on the 1st day of each month (except for the
initial payment which shall be payable on the Effective Date and prorated for
the remaining days of the month). As an incentive to the Manager, the Company
will upon execution of this Agreement issue and deliver to the Manager a stock
purchase warrant, in the form attached as Exhibit A hereto, to purchase up to
700,000 shares of the Company's common stock. The Manager and the Company agree
that no additional stock options will be required to be issued to the Manager
during the Term of this Agreement. In addition, the Company shall reimburse
Manager for all reasonable out-of-pocket expenses incurred by Manager in the
performance of its obligations hereunder.
5. TERMINATION; EFFECT OF TERMINATION.
(a) The Company shall have the right to terminate this
Agreement as follows:
(i) Upon thirty (30) days written notice, the
Company may terminate this Agreement on or after the second (2nd)
anniversary thereof
(ii) At any time for "cause," but only following
written notice to Manager giving specific detail of the basis for
termination and the opportunity to cure the
TURNAROUND SERVICES AGREEMENT - PAGE 2
breach within thirty (30) days following receipt of the notice. For
purposes hereof, "cause" shall mean a failure of Manager to perform its
obligations hereunder or other breach by Manager of this Agreement,
which failure or breach, after notice thereof to Manager, remains
uncured for more than thirty (30) days (or for such longer period, not
to exceed ninety (90) days, during which Manager is making good faith
and commercially reasonable efforts to cure such failure or breach).
In the event of termination by the Company for any reason, the
Company shall pay at the effective time of termination all accrued but
unpaid management fees and unreimbursed expenses.
(b) Manager shall have the right to terminate this
Agreement as follows:
(i) At any time if the Company has failed to pay
any amounts owing hereunder and such failure continues for twenty (20)
days following written notice from Manager to the Company (unless and
except to the extent that payment is within the reasonable control of
Manager). In such event of termination, the Company shall be
responsible for three (3) months of management fees beyond the date of
termination.
(ii) At any time after six (6) months following
the Effective Date and upon thirty (30) days prior written notice to
the Company, if in Manager's reasonable opinion, the Company's business
has continued to decline notwithstanding Manager's efforts hereunder.
In such event of termination, no additional management fees or
reimbursement of costs shall be due by the Company.
(c) In the event the Company terminates this Agreement
pursuant to Section 5(a)(i) and a Third Party Transaction (as defined
below) is completed within twelve (12) months following the date of
termination, then, in addition to the amounts specified in Sections
5(a) and (b) above, the Company shall pay to Manager a termination fee
(the "Termination Fee") in the amount equal to $45,000 multiplied by
the number of months remaining on the Term if this Agreement were not
terminated early, less any management fees paid following the date of
termination; provided, however, that no such Termination Fee shall be
payable if such termination was approved by the Manager's personnel or
designees holding primary oversight responsibility with respect to
services provided hereunder.
(d) In the event a Third Party Transaction is completed,
the Company shall pay to Manager a success fee (the "Success Fee")
equal to $1,000,000. For purposes hereof, a "Third Party Transaction"
shall mean any transaction (or series of related or unrelated
transactions) that is approved by vote of the Company's stockholders
and that is, constitutes or results, directly or indirectly, in a
change in control of the Company or its Business, including but not
limited to the sale of all or substantially all of the assets of the
Company, a merger or combination of the Company with another entity, or
a sale of 50% or more of the Company's outstanding stock.
(e) The Termination Fee and the Success Fee, as
applicable, shall be due and payable at the closing of the Third Party
Transaction.
TURNAROUND SERVICES AGREEMENT - PAGE 3
6. PREVIOUS SERVICE FEES AND EXPENSES. For services provided
prior to the Effective Date, the Company shall pay to Manager a fee of $190,000,
immediately upon execution of this Agreement.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Manager shall not,
during the term of this Agreement, or at any time thereafter, directly or
indirectly, disclose to any person or entity, any confidential information
acquired by it during the course of or as an incident to the engagement
hereunder, relating to the Company, any client of the Company, or any
corporation, partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing has a
beneficial interest, including, but not limited to, proprietary technology,
operating procedures, financial statements or other financial information, trade
secrets, know-how, market studies and forecasts, competitive analyses, pricing
policies, the substance of agreements with customers and others, marketing or
similar arrangements, servicing and training programs and arrangements, customer
lists and any other documents embodying such confidential information. The
foregoing restrictions and obligations under this Section 7 shall not apply to
any confidential information that is or becomes generally available to the
public other than as a result of a disclosure by Manager or disclosure is
required by court order.
Notwithstanding anything to the contrary set forth herein or in any
other agreement to which both the Company and the Manager are parties or by
which they are bound, the obligations of confidentiality contained herein and
therein (the "Confidentiality Obligations"), as they relate to the transactions
and events contemplated herein and therein, shall not apply to the "tax
treatment or tax structure" (as that phrase is used in Section 1.6011-4(b)(3)
(or any successor provision) of the Treasury Regulations (the "Confidentiality
Regulation") promulgated under Section 6011 of the Internal Revenue Code of
1986, as amended) of such transactions and events; provided, however, that the
Confidentiality Obligations nevertheless shall apply at a given time to any and
all items of information not required to be treated as "offered under conditions
of confidentiality" within the meaning of the Confidentiality Regulation.
8. INDEPENDENT CONTRACTORS. None of the provisions of this
Agreement is intended to create, nor shall be deemed or construed to create, any
relationship between the Company and Manager other than that of independent
entities contracting with each other solely for the purpose of effecting the
provisions of this Agreement. Neither of the parties hereto, nor any of the
directors, officers, employees or representatives of said party, shall be
construed to be the employee, partner, joint venturer or representative of the
other party. Neither party to this Agreement shall assume or bear any of the
responsibilities, or any consequences thereof, of the other. Neither party nor
any of the directors, officers, employees or representatives of said party,
shall be liable to third parties for any act of omission of the other.
9. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to Manager as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to carry on its business as
presently conducted.
TURNAROUND SERVICES AGREEMENT - PAGE 4
(b) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution and delivery of this Agreement and Turnaround the performance
by the Company of its obligations hereunder has been duly and validly
authorized by all requisite action on the part of the Company and
constitutes a valid and binding obligation of the Company enforceable
in accordance with its terms.
(c) The Company has obtained all requisite consents and
approvals to execute and deliver this Agreement and perform its
obligations hereunder.
10. INDEMNIFICATION. The Company shall indemnify and hold harmless
Manager and its partners, officers, employees, representatives and agents
(collectively, "Indemnified Parties") from and against all damages (including
without limitation amounts paid in settlement with the Company's prior written
consent, such consent not to be unreasonably withheld), losses, obligations,
liabilities, costs (including without limitation attorneys fees) and expenses
incurred or required to be paid by an Indemnified Party as a result of or in
connection with Manager's services under this Agreement; provided that in no
event shall the Company be responsible for matters resulting from an Indemnified
Party's own gross negligence or willful misconduct.
11. AMENDMENT OR ALTERATION. No amendment or alteration of the
terms of this Agreement shall be valid unless made in writing and signed by both
of the parties hereto.
12. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Texas, without application of the conflict
of laws principles thereof.
13. SEVERABILITY. The holding of any provision of this Agreement
to be illegal, invalid or unenforceable by a court of competent jurisdiction
shall not affect any other provision of this Agreement, which shall remain in
full force and effect.
14. NO ASSURANCES ON RESULTS. Nothing herein shall be deemed to
constitute a guarantee or assurance by Manager as to any improvements in the
Company's operations or profitability.
15. NOTICES. Any notice or other communication that one party
desires to give to the other under this Agreement shall be in writing, and shall
be deemed effectively given upon (i) personal delivery; (ii) transmission by
facsimile; (iii) the third business day following deposit in any United States
mail box, by registered or certified mail, postage prepaid, addressed to the
other party at the address set forth below or at such other address as a party
may designate by 15 days' advance notice to the other party pursuant to the
provisions of this Section; or (iv) delivery by any express service which
results in personal delivery to the other party.
If to the Company:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Executive Vice President
TURNAROUND SERVICES AGREEMENT - PAGE 5
with copies to:
Trenam ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Attorney
If to Manager:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Chief Executive Officer
with copies to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Attorney
16. WAIVER OR BREACH. It is agreed that a waiver by any party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by that same party.
17. ENTIRE AGREEMENT AND BINDING EFFECT. This Agreement contains
the entire agreement of the parties with respect to the subject matter hereof
and, except as otherwise specifically provided herein, shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. This Agreement supersedes and preempts any prior understandings,
agreements or representations between the parties, written or oral, which may
have been related to the subject matter hereof in any way.
18. ASSIGNMENT. This Agreement may not be transferred or assigned
by either party without the prior written consent of the other party; provided
that Turnaround Specialists may assign its rights under Section 6 to a newly
formed entity provided that Turnaround Specialists or its principals control
such entity.
19. HEADINGS. The Section headings appearing in this Agreement are
for purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, amend or affect its provisions.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement may be executed by facsimile
signature which shall be valid for all purposes.
TURNAROUND SERVICES AGREEMENT - PAGE 6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
GLOBAL ENERGY GROUP, INC.
By:
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Name:
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Title:
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TURNAROUND SPECIALISTS, L.L.C.
By:
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Name:
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Title:
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TURNAROUND SERVICES AGREEMENT - PAGE 7