Exhibit 10.3


 


Execution Copy


 


ADVISORY SERVICES AND MONITORING AGREEMENT


 


This ADVISORY SERVICES AND
MONITORING AGREEMENT (this “Agreement”)  is entered into as of January 8, 2007, by and
between ACP Lantern Acquisition, Inc., a Delaware corporation (the “Company”),  Avista Capital Holdings, LP, a
Delaware limited partnership (“Advisor”).


 


WHEREAS, the Company
proposes to acquire stock and assets pursuant to that certain Stock and Asset
Purchase Agreement, dated as of January 8, 2007, among Bristol-Myers Squibb
Company, a Delaware corporation, ACP Lantern Holdings, Inc., a Delaware
corporation, and ACP Lantern Acquisition, Inc., a Delaware corporation
(the “Acquisition”).


 


WHEREAS, in connection with the
Acquisition, Advisor (together with its affiliates) has provided and will
continue to provide services, advice and analysis, including management of and
assistance with due diligence and other investigatory matters related to the
Company, its subsidiaries and its parent companies (collectively, the “Group
Companies”)  and
the industries in which they operate, and advice with respect to financing
facilities and related arrangements and other matters;


 


WHEREAS, Advisor has staff skilled in
corporate finance, strategic corporate planning, and other management skills
and advisory and business monitoring services;


 


WHEREAS, the Group Companies will
require such skills and services from Advisor in connection with their business
operations and execution of strategic plans; and


 


WHEREAS, Advisor is
willing to provide such skills and services to the Company and other Group
Companies.


 


NOW, THEREFORE, in consideration of the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:


 


Section 1.              Appointment.


 


(a)           The Company hereby appoints Advisor, or its designees, as
one of its financial advisors with respect to the following services to the
extent appropriate and requested by the Company or other Group Companies: (i) assisting
the Company or other Group Companies in analyzing its operations and historical
performance; (ii) assisting the Company or other Group Companies in
analyzing future prospects; (iii) assisting the Company or other Group
Companies


 

















 


with respect to future
proposals for tender offers, acquisitions, sales, mergers, financings, exchange
offers, recapitalizations, restructurings or other similar transactions that
may be consummated during the term of this Agreement; and (iv) providing
financial and business monitoring services, including assisting the Company or
other Group Companies in preparing a strategic plan (collectively, “Advisory
Services”).


 


(b)           Advisor does not
make any representations or warranties, express or implied, in respect of
Advisory Services provided hereunder.  In
no event shall Advisor or any of its respective affiliates be liable to the
Company, other Group Companies or any of their respective affiliates for any
act, alleged act, omission or alleged omission except for gross negligence or
willful misconduct of Advisor or its designee as determined by a final,
non-appealable determination of a court of competent jurisdiction.


 


(c)           Advisor shall devote
such time and efforts to provide Advisory Services contemplated hereby as it
deems reasonably necessary or appropriate (including, without limitation, by
making the management professionals employed or engaged by it available in
connection therewith); provided, however,
that no minimum number of hours shall be required to be devoted by Advisor
on a weekly, monthly, annual or other basis.


 


Section 2.             Payment of
Fees.


 


(a)           In consideration of Advisory Services
provided and to be provided by Advisor in connection with the transaction related
to the consummation of the Acquisition, the Company agrees to pay to Advisor
(or its designees) upon execution of this Agreement, a one-time fee of an
amount equal to $10,000,000.


 


(b)           In consideration of the ongoing
Advisory Services to be provided hereunder by Advisor to the Company and other
Group Companies, the Company will pay Advisor (or its designees) an annual fee
of $1,000,000.  Such annual fee shall be
paid in equal quarterly installments on the first day of each fiscal quarter of
each calendar year throughout the duration of this Agreement, provided, however,  that
such fee relating to the quarter in which this Agreement is signed shall be
payable on the date hereof and pro rated for the balance of the quarter
remaining on the date hereof and provided,
further,  that, prior to the termination or expiration of this
Agreement, all unpaid fees and expenses hereunder through, as applicable, the
termination or expiration of this Agreement shall be immediately due and
payable.


 


(c)           Upon any transaction entered into by
the Company or any other Group Company in which Advisor has provided advice and
assistance to the Company, Advisor shall be entitled, in addition to receiving
other fees hereunder, to receive from the Company reasonable and customary advisory
fees for such


 


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advice and services as
Advisor may provide which may include assisting with the preparation and
presentation of offering memoranda and other data and assisting with the
process, structuring and negotiation of any resulting transaction or issuance,
such fee to be payable on the closing date of such transaction.


 


(d)           Notwithstanding the
provisions of Sections 2(b) and 2(c) of this Agreement, no fees shall
be paid thereunder if paying such fees is prohibited, or would cause a default
under the terms of the Company’s principal loan documents.  If paying such fees thereunder is prohibited
by this Section 2(d), such fees shall continue to be an obligation of the
Company and interest shall accrue on such fees (at the “prime rate”) until such
time as it, together with all or a portion of any other payments then due or
accrued hereunder, may be made without violation of this Section 2(d).


 


(e)           All payments and
reimbursements to be made to Advisor pursuant to this Section 2 will be
paid by wire transfer of immediately available funds to an account specified by
Advisor in writing to the Company.


 


Section 3.              Reimbursement
of Expenses. In consideration of the time, effort and expense
that have been and will be expended or incurred by or on behalf of Advisor in
connection with the Acquisition, the Company agrees to reimburse Advisor from
time to time upon request for all reasonable out-of-pocket costs, fees and
expenses incurred by or on behalf of Advisor in connection with or related to
the Acquisition, whether incurred before or after the date hereof, including
costs, fees and expenses relating to: (i) accountants, attorneys,
recruitment firms and other consultants hired by Advisor, to the extent not otherwise
paid by the Company; (ii) due diligence investigations by or on behalf of
Advisor; (iii) the preparation, negotiation and execution of any
agreements relating to the Acquisition between and among Advisor and the
Company, other Group Companies, and their respective senior executives and
shareholders; (iv) any subsequent amendments or waivers (whether or not
the same become effective) under or in respect of any such agreements; (v) governmental
and regulatory filings made by or on behalf of Advisor in connection with the
Acquisition; (vi) ongoing matters affecting the Company such as equity
incentive plans, acquisitions or financing transactions; and (vii) ongoing
monitoring of the affairs of the Company (including all reasonable travel and
related expenses and ongoing industry and company analyses).


 


Section 4.             No
Exclusive Duty to the Company.


 


(a)           In recognition that (i) Advisor
currently has, and will in the future have or will consider acquiring,
investments in numerous entities with respect to which Advisor may serve as an
advisor, a director or in some other capacity; (ii) Advisor may have
duties to various investors, stockholders and partners; (iii) Advisor (or
one or more affiliates, associated investment funds or portfolio Company) may
engage in the same or similar activities or lines of


 


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business as the Company or
other Group Companies and have an interest in the same areas of corporate
opportunities; (iv) the Company will derive certain benefits hereunder;
and (v) Advisor, in desiring and endeavoring to satisfy its duties, may
confront difficulties in determining the full scope of such duties in any
particular situation, the provisions of this Section 4 are set forth to
regulate, define and guide the conduct of certain affairs of the Company and
other Group Companies as they may involve Advisor.


 


(b)           Notwithstanding
anything to the contrary contained herein, (i) Advisor and its affiliates
shall not be required to manage the Company or other Group Companies as their
sole and exclusive function; (ii) Advisor and its affiliates may have
other business interests and may engage in other activities in addition to
those relating to the Company and other Group Companies, and such other
business interests or activities may be of any nature or description, may be
competitive with the Company or other Group Companies and may be engaged in
independently or with others; and (iii) neither the Company nor any other
Group Companies shall have any right, by virtue of this Agreement or the
relationship created hereby, in or to such other ventures or activities of
Advisor or its affiliates or to the income or proceeds derived therefrom, and
the pursuit of such ventures or activities, even if competitive with the Company
or other Group Companies, shall not be deemed wrongful or improper.


 


(c)           Neither Advisor nor
any of its affiliates, members, partners, employees, advisors, consultants,
agents or representatives (collectively, the “Advisor Entities”)  shall have any duty (contractual or
otherwise) to communicate or present any corporate opportunities to the Company
or any of its affiliates or to refrain from any actions specified in Section 4(a),
and the Company, on its own behalf and on behalf of its affiliates, hereby
renounces and waives any right to require Advisor or any of its affiliates to
act in a manner inconsistent with the provisions of Section 4(a).


 


(d)           Neither Advisor nor
any of Advisor Entities shall be liable to the Company, other Group Companies
or any of their respective affiliates for breach of any duty (contractual or
otherwise) by reason of any actions or omissions of the types referred to in
Section 4(a) or its or its affiliates’ participation therein.


 


Section 5.             Term and
Termination.


 


(a)           This Agreement shall
continue in full force and effect for a term of 7 years.  This Agreement shall automatically renew on
each anniversary of the date hereof, and, in connection with each renewal, the
term of this Agreement shall be 7 years from the date of such renewal


 


(b)           This Agreement shall
terminate on the earlier to occur of (i) 7 years from the date hereof, or
(ii) the date upon which the Company pays to


 


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Advisor all amounts that
would otherwise be payable pursuant to this Agreement for the remainder of the
term hereof.  No termination of Advisor’s
engagement hereunder shall affect any of the Company’s obligations hereunder,
including, without limitation, the Company’s indemnity obligations as set forth
herein.


 


Section 6.              Governing
Law; Submission to Jurisdiction; WAIVER OF JURY TRIAL.


 


(a)            Choice of Law. This Agreement shall be
governed by and construed, and interpreted in all respects, in accordance with
the laws of the State of New York without regard to conflicts of laws
principles thereof.


 


(b)           Consent to Jurisdiction.    Each of the parties agrees that
all actions, suits or proceedings arising out of or based upon this Agreement
or the subject matter hereof shall be brought and maintained exclusively in the
federal and state courts of the State of New York (collectively, “New York
Courts” and each a “New York Court”). 
Each of the parties hereto by execution hereof: (i) hereby
irrevocably submits to the jurisdiction of New York Courts for the purpose of
any action, suit or proceeding arising out of or based upon this Agreement or
the subject matter hereof; and (ii) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any claim that it
is not subject personally to the jurisdiction of the above-named courts, that
it is immune from extraterritorial injunctive relief or other injunctive
relief, that its property is exempt or immune from attachment or execution,
that any such action, suit or proceeding may not be brought or maintained in
any New York Court, that any such action, suit or proceeding brought or
maintained in any New York Court should be dismissed on grounds of forum non conveniens, should be
transferred to any court other than a New York Court, should be stayed by
virtue of the pendency of any other action, suit or proceeding in any court
other than a New York Court, or that this Agreement or the subject matter
hereof may not be enforced in or by any New York Court.  Each of the parties hereto hereby consents to
service of process in any such action, suit or proceeding in any manner
permitted by the laws of the State of New York, agrees that service of process
by registered or certified mail, return receipt requested, at the address
specified in or pursuant to Section 16 is reasonably calculated to give
actual notice and waives and agrees not to assert by way of motion, as a
defense or otherwise, in any such action, suit or proceeding any claim that
service of process made in the manner set forth in Section 16 does not
constitute good and sufficient service of process.  The provisions of this Section 6(b) shall
not restrict the ability of any party to enforce in any court any judgment
obtained in a New York Court.


 


(c)            Waiver of Jury Trial.    TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY
WAIVES, AND COVENANTS


 


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THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN
ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT
OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT
HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
IN CONTRACT OR TORT OR OTHERWISE.  Each
of the parties hereto acknowledges that it has been informed by each other
party that the provisions of this Section 6(c) constitute a material
inducement upon which such party is relying and will rely in entering into this
Agreement and the transactions contemplated hereby.  Any of the parties hereto may file an original
counterpart or a copy of this Agreement with any court as written evidence of
the consent of each of the parties hereto to the waiver of its right to trial
by jury.


 


Section 7.              Liability
and Indemnity.    Neither Advisor
nor the Advisor Entities shall be liable to the Company or any of its
subsidiaries or affiliates for any loss, liability, damage or expense arising
from or in connection with any services provided hereunder, unless such loss,
liability, damage or expense is caused by the gross negligence or willful
misconduct of Advisor or Advisor Entities. 
The Company shall defend, indemnify and hold harmless Advisor and
Advisor Entities 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, all services provided hereunder (including reasonable attorneys’
fees), resulting from any act or omission of Advisor or Advisor Entities,
unless such claims are caused by the gross negligence or willful misconduct of
Advisor or Advisor Entities.


 


Section 8.              Limitation
of Liability.    In no event
will any party 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 for any third party
claims (whether based on contract, tort or otherwise), relating to any services
provided hereunder.


 


Section 9.              Non-Recourse.    No past, present or future
director, officer, employee, incorporator, member, partner, stockholder, agent,
attorney or representative of Advisor, the Company, other Group Companies or
any of their respective affiliates shall have any liability for any obligations
or liabilities of Advisor, the Company, other Group Companies or any of their
respective affiliates under this Agreement or for any claim based on, in
respect of or arising from the transactions or matters contemplated hereby.


 


Section 10.            Authority
to Enter Agreement.    Each party to
this Agreement represents and warrants to the other parties hereto that it has
all requisite power and authority to enter into this Agreement and the
transactions contemplated hereby, that this Agreement has been duly and validly
authorized by all necessary action on the part of such party and that when duly
executed and


 


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delivered by such party,
this Agreement shall constitute a legal, valid and binding agreement of such
party, enforceable against it in accordance with its terms.


 


Section 11.           Amendments
and Waivers.    No amendment of
any term, provision or condition of this Agreement shall be effective, unless
in writing and executed by each of the parties hereto.  No waiver on any one occasion shall affect,
extend to, or be construed as a waiver of, any right or remedy on any future
occasion.  No course of dealing of any
person nor any delay or omission in exercising any right or remedy shall
constitute an amendment of this Agreement or a waiver of any right or remedy of
any party hereto.


 


Section 12.            Independent
Contractor.    The parties
agree and understand that Advisor is and shall act as an independent contractor
of the Company in providing Advisory Services. 
Advisor is not and, in providing Advisory Services, will not hold itself
out as an employee, agent or partner of the Company.


 


Section 13.            Information.    The Company shall furnish and
make available to Advisor all financial and other information as Advisor deems
appropriate in connection with providing Advisory Services and, in connection
therewith, will provide Advisor with reasonable access to its officers,
directors, employees, agents, accountants, counsel and other
representatives.  The Company
acknowledges and accepts that (a) Advisor will rely solely on such
information and information that is available from public sources in providing
Advisory Services without assuming any responsibility for independent
investigation or verification thereof; (b) Advisor will not be responsible
for the accuracy or completeness of such information or any other information
regarding the Company; and (c) Advisor will not be required to appraise
the value of the Company’s assets or liabilities.


 


Section 14.            Confidentiality.    No advice rendered by
Advisor, whether formal or informal, may be disclosed, in whole or in part, or
summarized, excerpted from or otherwise referred to without Advisor’s prior written
consent. Unless otherwise required by law, all information provided hereunder
(including the terms of this Agreement) by one party hereto (the “Disclosing  Party”)  to
another party hereto (the “Receiving Party”) shall be
confidential and shall not be disclosed to third parties without the prior
written approval of the Disclosing Party, except where such information is at
the time of the disclosure or thereafter becomes available (a) to the
general public (other than as a result of its disclosure by the Receiving
Party); or (b) to the Receiving Party on a non-confidential basis from a
person not bound by confidentiality obligations.  Notwithstanding the forgoing, without the
prior written approval of the Disclosing Party: (c) Advisor may disclose
any information to Advisor Entities in connection with providing Advisory
Services; and (d) the Receiving Party may disclose information and
material that it receives on the tax structure or tax treatment of services
provided hereunder, provided, however,
that such disclosure shall not include the name (or


 


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other identifying
information not relevant to the tax structure or tax treatment) of any person
and shall not include information for which confidentiality is reasonably
necessary under securities laws.  The
Receiving Party shall be responsible for any breach of the obligation set forth
in this Section 14 by its affiliates, representatives and agents.


 


Section 15.            Entire
Agreement.    This Agreement
contains the entire understanding of the parties hereto with respect to the
specific subject matter hereof and supersede any prior communication or
agreement with respect thereto.


 


Section 16.           Notice.    All notices, requests,
consents and other communications hereunder to any party shall be deemed to be
sufficient if contained in a written instrument delivered in person or sent by
facsimile, nationally-recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to such
party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties:


 


	
  If
  to the Company, to:

  	
  ACP Lantern
  Acquisition, Inc.

  
	
   

  	
  331 Treble Cove Road

  North Billerica, Massachusetts

  Attention:    President

  Facsimile:

  
	
   

  	
   

  
	
  If
  to Advisor, to:

  	
  Avista Capital Holdings,
  LP

  
	
   

  	
  65 East 55th Street

  18th Floor

  
	
   

  	
  New York, NY 10022

  Attention:    Ben Silbert, Esq.

  Facsimile:    212-593-6959

  



 


All
such notices, requests, consents and other communications shall be deemed to
have been received: (a) in the case of delivery in person or by facsimile,
on the date of such delivery; (b) in the case of delivery by
nationally-recognized overnight courier, on the next business day following
such delivery; and (c) in the case of delivery by mail, on the third
business day after the posting thereof.


 


Section 17.            Severability.    If in any judicial or
arbitral proceedings a court or arbitrator shall refuse to enforce any
provision of this Agreement, then such unenforceable provision shall be deemed
eliminated from this Agreement for the purpose of such proceedings to the
extent necessary to permit the remaining provisions to be enforced.  To the full extent, however, that the
provisions of any applicable law may be waived, they are hereby waived to the
extend that this Agreement be deemed to be a valid and binding agreement
enforceable in accordance with its terms, and in the event that any provision
hereof shall be


 


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found to be invalid or
unenforceable, such provision shall be construed by limiting it so as to be
valid and enforceable to the maximum extent consistent with and possible under
applicable law.


 


Section 18.            Counterparts.    This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which together shall constitute one and the
same instrument.


 


Section 19.            Headings.    All headings in this
Agreement are inserted for convenience only and shall be disregarded in
construing and enforcing provisions of this Agreement.


 


Section 20.            Prevailing
Party.    If any action or other
proceedings is brought for a breach of this Agreement, the prevailing party
shall be entitled to recover its reasonable attorneys’ fees and other costs
incurred in bringing such action or proceeding, in addition to any other relief
to which such party may be granted or entitled.


 


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IN WITNESS WHEREOF, each of
the parties has caused this Agreement to be executed on its behalf by its duly
authorized officer or representative as of the date first above written.


 


	
   

  	
  ACP LANTERN
  ACQUISITION, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Burgstahler

  
	
   

  	
   

  	
  Name:

  	
  David Burgstahler

  
	
   

  	
   

  	
  Title:

  	
  Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVISTA CAPITAL HOLDINGS, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Avista Capital, Inc.

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Burgstahler

  
	
   

  	
   

  	
  Name:

  	
  David Burgstahler

  
	
   

  	
   

  	
  Title:

  	
  Authorized Representative

  



 


Signature
Page to Advisory Services and Monitoring Agreement