Exhibit
10.1


 


 


 


MANAGEMENT SERVICES
AGREEMENT


BY AND BETWEEN


ATLAS
INDUSTRIES HOLDINGS LLC


AND


ATLAS INDUSTRIES
MANAGEMENT LLC


Dated as of __________,
2007










 


TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
  Section
  1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  ARTICLE
  II

  	
   

  	
  APPOINTMENT
  OF THE MANAGER

  	
   

  	
  6

  
	
   

  	
   

  	
  Section
  2.1

  	
   

  	
  Appointment

  	
   

  	
  6

  
	
   

  	
   

  	
  Section
  2.2

  	
   

  	
  Term

  	
   

  	
  7

  
	
  ARTICLE
  III

  	
   

  	
  OBLIGATIONS
  OF THE PARTIES

  	
   

  	
  7

  
	
   

  	
   

  	
  Section
  3.1

  	
   

  	
  Obligations
  of the Manager

  	
   

  	
  7

  
	
   

  	
   

  	
  Section
  3.2

  	
   

  	
  Obligations
  of the Company

  	
   

  	
  9

  
	
   

  	
   

  	
  Section
  3.3

  	
   

  	
  Acquisition
  and Disposition Opportunities

  	
   

  	
  10

  
	
   

  	
   

  	
  Section
  3.4

  	
   

  	
  Offsetting
  Management Services

  	
   

  	
  11

  
	
   

  	
   

  	
  Section
  3.5

  	
   

  	
  Change
  of Services

  	
   

  	
  12

  
	
   

  	
   

  	
  Section
  3.6

  	
   

  	
  Transaction
  Services

  	
   

  	
  12

  
	
  ARTICLE
  IV

  	
   

  	
  POWERS
  OF THE MANAGER

  	
   

  	
  13

  
	
   

  	
   

  	
  Section
  4.1

  	
   

  	
  Powers
  of the Manager

  	
   

  	
  13

  
	
   

  	
   

  	
  Section
  4.2

  	
   

  	
  Delegation

  	
   

  	
  13

  
	
   

  	
   

  	
  Section
  4.3

  	
   

  	
  Manager’s
  Obligations, Duties and Powers Exclusive

  	
   

  	
  13

  
	
  ARTICLE
  V

  	
   

  	
  INSPECTION
  OF RECORDS

  	
   

  	
  14

  
	
   

  	
   

  	
  Section
  5.1

  	
   

  	
  Books
  and Records of the Company

  	
   

  	
  14

  
	
   

  	
   

  	
  Section
  5.2

  	
   

  	
  Books
  and Records of the Manager

  	
   

  	
  14

  
	
  ARTICLE
  VI

  	
   

  	
  AUTHORITY
  OF THE COMPANY AND THE MANAGER

  	
   

  	
  14

  
	
  ARTICLE
  VII

  	
   

  	
  MANAGEMENT
  FEE; EXPENSES

  	
   

  	
  14

  
	
   

  	
   

  	
  Section
  7.1

  	
   

  	
  Management
  Fee

  	
   

  	
  14

  
	
   

  	
   

  	
  Section
  7.2

  	
   

  	
  Reimbursement
  of Expenses

  	
   

  	
  17

  
	
  ARTICLE
  VIII

  	
   

  	
  SECONDMENT
  OF OFFICERS BY THE MANAGER

  	
   

  	
  18

  
	
   

  	
   

  	
  Section
  8.1

  	
   

  	
  Secondment
  of the Required Seconded Officers

  	
   

  	
  18

  
	
   

  	
   

  	
  Section
  8.2

  	
   

  	
  Remuneration
  of the Required Seconded Officers

  	
   

  	
  18

  
	
   

  	
   

  	
  Section
  8.3

  	
   

  	
  Secondment
  of Additional Officers and Other Personnel

  	
   

  	
  18

  
	
   

  	
   

  	
  Section
  8.4

  	
   

  	
  Remuneration
  of Additional Officers and Other Personnel

  	
   

  	
  18

  
	
   

  	
   

  	
  Section
  8.5

  	
   

  	
  Removal
  of Seconded Officers

  	
   

  	
  19

  



 


 


i

















	
  

  	
   

  	
  Section
  8.6

  	
   

  	
  Insurance

  	
   

  	
  19

  
	
  ARTICLE
  IX

  	
   

  	
  TERMINATION;
  RESIGNATION AND REMOVAL OF THE MANAGER

  	
   

  	
  19

  
	
   

  	
   

  	
  Section
  9.1

  	
   

  	
  Resignation
  by the Manager

  	
   

  	
  19

  
	
   

  	
   

  	
  Section
  9.2

  	
   

  	
  Removal
  of the Manager

  	
   

  	
  19

  
	
   

  	
   

  	
  Section
  9.3

  	
   

  	
  Termination

  	
   

  	
  20

  
	
   

  	
   

  	
  Section
  9.4

  	
   

  	
  Seconded
  Individuals

  	
   

  	
  20

  
	
   

  	
   

  	
  Section
  9.5

  	
   

  	
  [Reserved]

  	
   

  	
  21

  
	
   

  	
   

  	
  Section
  9.6

  	
   

  	
  Directions

  	
   

  	
  21

  
	
   

  	
   

  	
  Section
  9.7

  	
   

  	
  Payments
  Upon Termination

  	
   

  	
  21

  
	
  ARTICLE
  X

  	
   

  	
  INDEMNITY

  	
   

  	
  21

  
	
   

  	
   

  	
  Section
  10.1

  	
   

  	
  Indemnity

  	
   

  	
  21

  
	
  ARTICLE
  XI

  	
   

  	
  LIMITATION
  OF LIABILITY OF THE MANAGER

  	
   

  	
  22

  
	
   

  	
   

  	
  Section
  11.1

  	
   

  	
  Limitation
  of Liability

  	
   

  	
  22

  
	
   

  	
   

  	
  Section
  11.2

  	
   

  	
  Reliance
  of Manager

  	
   

  	
  22

  
	
  ARTICLE
  XII

  	
   

  	
  LEGAL
  ACTIONS

  	
   

  	
  23

  
	
   

  	
   

  	
  Section
  12.1

  	
   

  	
  Third
  Party Claims

  	
   

  	
  23

  
	
  ARTICLE
  XIII

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  23

  
	
   

  	
   

  	
  Section
  13.1

  	
   

  	
  Obligation
  of Good Faith; No Fiduciary Duties

  	
   

  	
  24

  
	
   

  	
   

  	
  Section
  13.2

  	
   

  	
  Binding
  Effect

  	
   

  	
  24

  
	
   

  	
   

  	
  Section
  13.3

  	
   

  	
  Compliance

  	
   

  	
  24

  
	
   

  	
   

  	
  Section
  13.4

  	
   

  	
  Effect
  of Termination; Survival

  	
   

  	
  24

  
	
   

  	
   

  	
  Section
  13.5

  	
   

  	
  Notices

  	
   

  	
  24

  
	
   

  	
   

  	
  Section
  13.6

  	
   

  	
  Headings

  	
   

  	
  25

  
	
   

  	
   

  	
  Section
  13.7

  	
   

  	
  Applicable
  Law

  	
   

  	
  25

  
	
   

  	
   

  	
  Section
  13.8

  	
   

  	
  Submission
  to Jurisdiction; Waiver of Jury Trial

  	
   

  	
  26

  
	
   

  	
   

  	
  Section
  13.9

  	
   

  	
  Amendment;
  Waivers

  	
   

  	
  27

  
	
   

  	
   

  	
  Section
  13.10

  	
   

  	
  Remedies
  to Prevailing Party

  	
   

  	
  27

  
	
   

  	
   

  	
  Section
  13.11

  	
   

  	
  Severability

  	
   

  	
  27

  
	
   

  	
   

  	
  Section
  13.12

  	
   

  	
  Benefits
  Only to Parties

  	
   

  	
  27

  
	
   

  	
   

  	
  Section
  13.13

  	
   

  	
  Further
  Assurances

  	
   

  	
  27

  
	
   

  	
   

  	
  Section
  13.14

  	
   

  	
  No
  Strict Construction

  	
   

  	
  27

  



 


ii

















 


	
  

  	
   

  	
  Section
  13.15

  	
   

  	
  Entire
  Agreement

  	
   

  	
  28

  
	
   

  	
   

  	
  Section
  13.16

  	
   

  	
  Assignment

  	
   

  	
  28

  
	
   

  	
   

  	
  Section
  13.17

  	
   

  	
  Confidentiality

  	
   

  	
  28

  
	
   

  	
   

  	
  Section
  13.18

  	
   

  	
  Counterparts

  	
   

  	
  29

  
	
   

  	
   

  	
  Section
  13.19

  	
   

  	
  Dispute
  Resolution

  	
   

  	
  29

  



 


iii


 






 










 


MANAGEMENT SERVICES AGREEMENT
(as amended, revised, supplemented or otherwise modified from time to time,
this “Agreement”), dated as of _________,
2007, by and between Atlas Industries Holdings LLC, a Delaware limited
liability company (the “Company”), and
Atlas Industries Management LLC, a Delaware limited liability company (the “Manager”).  Each party hereto shall be referred to as,
individually, a “Party” and, collectively, the “Parties”.


WHEREAS, the Board
of Directors of the Company has determined that it would be in the best
interests of the Company to appoint an external manager to perform the Services
(as such term is defined herein) and, therefore, the Company has agreed to
appoint the Manager to perform the Services on the terms and subject to the
conditions set forth herein; and


WHEREAS, the
Manager has agreed to act as Manager and to perform the Services on the terms
and subject to the conditions set forth herein.


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


ARTICLE I


DEFINITIONS


Section 1.1            Definitions


For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:


(i)            the
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;


(ii)           any
reference to an “Article,” “Section” or an “Exhibit” refers to an Article,
Section or an Exhibit, as the case may be, of this Agreement; and


(iii)          the
words “herein,” “hereinafter,” “hereof,” “hereto” and “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision:


“Acquisition and
Disposition Criteria” means the acquisition and
disposition criteria adopted by the Company’s Board of Directors from time to
time, as amended, revised, supplemented or otherwise modified from time to time
by the Company’s Board of Directors, which is, or shall be upon any change,
revision, supplement or other modification with respect thereto, attached as Schedule
1.


“Adjusted Management Fee”
has the meaning set forth in Section 7.1(c) hereof.


“Adjusted Net Assets’’ means,
as of any Calculation Date, the sum of
(i) consolidated total assets (as determined in accordance with GAAP) of the
Company as of such Calculation Date, plus (ii)
the absolute amount of consolidated accumulated amortization of intangibles (as
determined in accordance with GAAP) of the Company as of such Calculation Date,
minus (iii) total cash and cash equivalents of the Company (on a
deconsolidated basis) as of such Calculation Date, minus (iv) the absolute amount of Adjusted Total
Liabilities of the Company as of such Calculation Date.


“Adjusted Total Liabilities’’
means, as of any Calculation Date, the absolute amount of consolidated total
liabilities (as determined in accordance with GAAP) of the Company as of such
Calculation Date, minus, to the extent included
therein, the sum of the absolute amount of the
aggregate principal amount of any Third Party Indebtedness of the Company as of
such Calculation 


 


1

















 


Date, provided, that Adjusted Total Liabilities shall
be calculated without regard to, and without giving effect to, in any manner
whatsoever, any impact recorded in the Company’s financial statements related
to or arising in connection with either the Supplemental Put Agreement or any
liability in respect of the Company’s payment obligation under Article V of the
LLC Agreement in each case as of such Calculation Date.


“Adjustment Date” has the
meaning set forth in Section 7.1(c) hereof.


“Affiliate” means, with
respect to any Person, (i) any Person directly or indirectly controlling,
controlled by or under common control with such Person or (ii) any officer,
director, general member, member or trustee of such Person. For purposes of
this definition, the terms “controlling,”  “controlled by” or “under common
control with” shall mean, with respect to any
Persons, the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, or the power to elect
at least 50% of the directors, managers, general members, or Persons exercising
similar authority with respect to such Person.


“Agreement” has the meaning
set forth in the preamble of this Agreement.


“Allocation Shares” has the
meaning set forth in the LLC Agreement.


“Allocation Share Certificate”
has the meaning set forth in the LLC Agreement.


“Average Market Price”
means, as of any Management Fee Payment Date, the average of the closing prices
of the Company’s Common Shares on the Nasdaq National Market, or other
securities exchange on which the Company’s Common Shares are then listed,
determined by reference to each trading day for the Company’s Common Shares
occurring during the 30-day period ending on the day immediately preceding such
Management Fee Payment Date.


“Board of Directors” means,
with respect to the Company or any Subsidiary of the Company, as the case may
be, the Board of Directors of the Company, such Subsidiary of the Company, or,
in each case, any committee thereof that has been duly authorized by the Board
of Directors to make a decision on the matter in question or bind the Company
or such Subsidiary of the Company, as the case may be, as to the matter in
question.


“Business Day” means any day
other than a Saturday, a Sunday or a day on which banks in The City of New York
are required, permitted or authorized, by applicable law or executive order, to
be closed for regular banking business.


“Calculation Date” means, with
respect to any Fiscal Quarter, the last day of such Fiscal Quarter.


“Chief Accounting Officer”
means the Chief Accounting Officer of the Company, including any interim Chief
Accounting Officer.


 


2

















 


“Chief Executive Officer”
means the Chief Executive Officer of the Company, including any interim Chief
Executive Officer.


“Chief Financial Officer”
means the Chief Financial Officer of the Company, including any interim Chief
Financial Officer.


“Commencement Date” means the
date of the closing of the IPO by the Company.


“Common Shares” has the
meaning set forth in the LLC Agreement.


“Common  Share Certificate”
has the meaning set forth in the LLC Agreement.


“Company” has the meaning set
forth in the preamble of this Agreement.


“Company Information” means
any information concerning the Company or any of the Subsidiaries of the
Company and their respective financial condition, business or operations that
(i) relates to earnings, (ii) is competitively sensitive, (iii) relates to
trade secrets, (iv) is proprietary or (v) is similar to any of the foregoing
information.


 “Company Officers”
means the Chief Executive Officer, the President, the Chief Financial Officer
and Chief Accounting Officer and any other officer of the Company hereinafter
appointed by the Board of Directors of the Company.


“Compensation Committee” has
the meaning set forth in the LLC Agreement.


 “Exchange
Act” means the Securities Exchange Act of 1934, as amended.


“Federal Securities Laws”
means, collectively, the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder.


“Final Management Fee” has the
meaning set forth in Section 7.1(b) hereof.


“Fiscal Quarter” means
each fiscal quarter of the Company for purposes of its reporting obligations
under the Exchange Act.


“Fiscal Year”
means each fiscal year of the Company for purposes of its reporting obligations
under the Exchange Act.


“GAAP” means generally
accepted accounting principles in effect in the United States, consistently
applied.


“Gross Income” has the
meaning set forth in Section 61(a) of the Internal Revenue Code of 1986, as
amended.


“Incur”
means, with respect to any Indebtedness or other obligation of a Person, to
create, issue, acquire (by conversion, exchange or otherwise), assume, suffer,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation.


 


3

















 


“Indebtedness” means, with
respect to any Person, (i) any liability for borrowed money, or under any
reimbursement obligation relating to a letter of credit, (ii) all indebtedness
(including bond, note, debenture, purchase money obligation or similar
instrument) for the acquisition of any businesses, properties or assets of any
kind (other than property, including inventory, and services purchased, trade
payables, other expenses accruals and deferred compensation items arising in
the Ordinary Course of Business), (iii) all obligations under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (iv)
any liabilities of others described in the preceding clauses (i) to (iii)
(inclusive) that such Person has guaranteed or for which such Person is
otherwise legally obligated, and (v) (without duplication) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (i) through (iv) above.


“Indemnified Parties” has the
meaning set forth in Section 10.1 hereof.


“Independent Director” has the
meaning set forth in the LLC Agreement.


“Investment Advisers Act”
means the Investment Advisers Act of 1940, as amended.


“Investment Company Act” means
the Investment Company Act of 1940, as amended.


“IPO” means the initial public offering of
Common Shares by the Company, closing on the date hereof.


 “LLC Agreement”
means the ________ Amended and Restated Operating Agreement of the Company,
dated as of ________, 2007, including all exhibits and schedules attached
thereto, as may be amended, revised, supplemented or otherwise modified from
time to time.


“Losses” has the meaning set
forth in Section 10.1 hereof.


“Management Fee” has the
meaning set forth in Section 7.1(a) hereof.


“Management Fee Payment Date”
means, with respect to any Calculation Date, the date that is ten (10) Business
Days following the receipt by the Company of the calculation of the Management
Fee from the MSA Administrator with respect to such Calculation Date; provided,
that such date may not be more than twenty (20) Business Days after such
Calculation Date.


“Manager” has the meaning set
forth in the preamble of this Agreement.


“MSA Administrator” means,
as of any Calculation Date, (i) for so long as this Agreement remains in full
force and effect as of such Calculation Date, the Manager, and (ii) thereafter,
the Chief Financial Officer.


“Nasdaq Global Market” means
the Nasdaq Global Market (or any successor thereto).


“Nominating and Corporate Governance Committee”
has the meaning set forth in the LLC Agreement.


 


4

















 


“Non-Critical Services” means
any Services other than Services for which the Manager was engaged by the
Company in light of the experience and expertise of the employees of the Manager.


“Offsetting Management Fee”
has the meaning specified in Section 3.4 hereof.


“Offsetting Management Services”
has the meaning specified in Section 3.4 hereof.


“Offsetting Management Services Agreement”
shall mean a management services agreement entered into by and between the
Manager and any one or more Subsidiaries of the Company that is either (i)
substantially in the form attached hereto as Exhibit A and is designated
as an “Offsetting Management Services Agreement” therein or (ii) expressly
authorized and approved by the Nominating and Corporate Governance Committee.


“Ordinary Course of Business”
means, with respect to any Person, an action taken by such Person if such
action is (i) consistent with the past practices of such Person and is taken in
the normal day-to-day business or operations of such Person and (ii) which is
not required to be specifically authorized or approved by the board of
directors of such Person.


“Other Seconded Personnel”
has the meaning set forth in Section 8.3 hereof.


“Over-Paid Management Fees”
means, as of any Calculation Date, the amount by which (i) Adjusted Management
Fees that were actually paid on all Management Fee Payment Dates preceding such
Calculation Date, exceeded (ii)
Adjusted Management Fees that were actually due and payable by the Company on
all such Management Fee Payment Dates, as determined by the MSA Administrator
upon availability of the Company’s final consolidated financial statements in
accordance with Section 7.1(e); provided,
that such amount shall not be less than zero (0).


“Party” and “Parties” have the meaning set forth in the preamble
of this Agreement.


“Person” means any individual,
company (whether general or limited), limited liability company, corporation,
trust, estate, association, nominee or other entity.


“President” means the
President of the Company, including any interim President.


“Required Seconded Officers”
has the meaning specified in Section 8.1 hereof.


“Securities  Act” means the Securities Act of 1933, as amended.


“Services” has the meaning set
forth in Section 3.1(b) hereof.


“Subsidiary” means, with
respect to any Person, any corporation, company, joint venture, limited
liability company, association or other entity in which such Person owns,
directly or indirectly, more than 50% of the outstanding voting equity
securities or interests, the holders of which are generally entitled to vote
for the election of the board of directors or other governing body of such
entity.


 


5

















 


“Supplemental Put Agreement”
means the Supplemental Put Agreement, dated as of the date hereof, entered into
by and between the Company and the Manager in its capacity as holder of the
Allocation Shares.


“Termination Fee”
means, as of any Termination Fee Date, the amount equal to the product of (i) two (2) multiplied by (ii)
the sum of the aggregate amount of the
Management Fees calculated with respect to the four full Fiscal Quarters
immediately preceding such Termination Fee Date, prior to any adjustments
thereto pursuant to Section 7.1(c).


“Termination Fee Date”
means the date upon which this Agreement is terminated pursuant to an event
described in Section 9.2 hereof.


“Third Party Indebtedness”
means, with respect to any Person, Indebtedness of such Person owed to any
lenders or other creditors that are not an Affiliate of such Person.


“Transaction Fee” means the
transaction fee payable pursuant to a Transaction Services Agreement that, as
of any date, conforms to the transaction fee mutually agreed upon by the Nominating
and Corporate Governance Committee and the Manager as of such date, which is,
or shall be upon any change, revision, supplement or other modification
thereto, attached hereto as Schedule 2.


“Transaction Services” has the
meaning set forth in Section 3.6 hereof.


“Transaction Services Agreement”
shall mean a transaction services agreement entered into by and between the
Manager and any one or more Subsidiaries of the Company and that is either (i)
substantially in the form attached hereto as Exhibit B and is designated
as a “Transaction Services Agreement” therein, which incorporates the
Transaction Fee in effect on the date such Transaction Services Agreement is
executed and delivered, or (ii) expressly authorized and approved by the
Nominating and Corporate Governance Committee.


“Under-Paid Management Fees”
means, as of any Calculation Date, the amount by which (i) Adjusted Management
Fees that were actually due and payable by the Company on all Management Fee
Payment Dates preceding such Calculation Date, as determined by the MSA
Administrator upon availability of the Company’s final consolidated financial
statements in accordance with Section 7.1(e) exceeded
(ii) Adjusted Management Fees that were actually paid on all such Management
Fee Payment Dates; provided,
that such amount shall not be less than zero (0).


ARTICLE II


APPOINTMENT OF THE
MANAGER


Section
2.1            Appointment


The Company hereby agrees to, and hereby does, appoint
the Manager to perform the Services as set forth in Section 3.1 herein and in
accordance with the terms and conditions of this Agreement.


 


6

















 


Section
2.2            Term


The Manager shall provide Services to the Company from
the Commencement Date until the termination of this Agreement in accordance
with Article IX hereof.


ARTICLE III


OBLIGATIONS OF THE
PARTIES


Section 3.1            Obligations
of the Manager


(a)           Subject
always to the oversight and supervision of the Board of Directors of the
Company and the terms and conditions of this Agreement, the Manager shall
during the term of this Agreement (i) perform the Services as set forth in
Section 3.1(b) below and (ii) comply with the provisions of the LLC Agreement,
as amended from time to time, and the operational objectives and business plans
of the Company in existence from time to time. The Company shall promptly
provide the Manager with all amendments to the LLC Agreement and all stated
operational objectives and business plans of the Company approved by the Board
of Directors of the Company and any other available information reasonably
requested by the Manager.


(b)           Subject
to Sections 3.4 and 3.6 hereof and Article VII, the Manager agrees and
covenants that it shall perform the following services (as may be modified from
time to time pursuant to Section 3.5 hereof, the “Services”):


(i)            manage
the Company’s day-to-day business and operations, including managing its
liquidity and capital resources and causing the Company to comply with
applicable law;


(ii)           identify,
evaluate, manage, perform due diligence on, negotiate and oversee the
acquisitions of target businesses by the Company and any other investments of
the Company;


(iii)          evaluate,
manage, negotiate and oversee the disposition of all or any part of the
property, assets or investments of the Company, including dispositions of all
or any part of the Company’s Subsidiaries;


(iv)          evaluate
and oversee the financial and operational performance of any of the Company’s
Subsidiaries, including monitoring the business and operations thereof, and the
financial performance of any of the Company’s other investments;


(v)           provide,
on the Company’s behalf, managerial assistance to the Company’s Subsidiaries;


(vi)          provide
or second, as determined necessary by the Manager and in accordance with the
terms and conditions of this Agreement and the LLC Agreement, employees of the
Manager to serve as executive officers or other employees of the Company or as
members of the Company’s Board of Directors; and


 


7

















 


(vii)         perform any other services for and on behalf of the Company
to the extent that such services are consistent with those that are customarily
performed by the executive officers and employees of a publicly listed or
quoted Person.


The foregoing Services shall include, but are not
limited to, the following:


(i)            establishing and maintaining, or
overseeing the establishment and maintenance of, the books and records of the
Company in accordance with customary practice and GAAP;


(ii)           recommend to the Company’s Board of Directors
(x) capital raising activities, including the issuance of debt or equity
securities of the Company, the entry into credit facilities or other credit
arrangements, structured financings or other capital market transactions, (y)
changes or other modifications in the capital structure of the Company,
including repurchases of the Company’s securities;


(iii)          recommend to the Company’s Board of
Directors the engagement of or, if approval is not otherwise required
hereunder, engage agents, consultants or other third party service providers to
the Company, including accountants, counsel or experts, in each case, as may be
necessary by the Company from time to time;


(iv)          maintain, or oversee the maintenance
of, the Company’s property and assets in the Ordinary Course of Business;


(v)           make recommendations to the Company’s
Board of Directors with respect to the exercise of voting rights to which the
Company is entitled to vote in respect of its investments;


(vi)          manage or oversee litigation,
administrative or regulatory proceedings, investigations or any other reviews
of the Company’s business or operations that may arise in the Ordinary Course
of Business or otherwise, subject to the approval of the Company’s Board of
Directors to the extent necessary in connection with the settlement,
compromise, consent to the entry of an order or judgment or other agreement
resolving any of the foregoing;


(vii)         establish and maintain, or overseeing
the establishment and maintenance of, the appropriate insurance policies with
respect to the Company’s business and operations;


(viii)        recommend to the Company’s Board of
Directors the payment of dividends or other distributions on the equity
interests of the Company; and


(ix)           oversee the timely calculation and
payment of taxes payable, and the filing of all taxes return due, by the
Company.


(c)           In
connection with the performance of its obligations under this Agreement as such
may pertain to the Company or any Subsidiary of the Company, the Manager shall
be required to obtain authorization and approval (i) of the Company’s or such
Subsidiary’s Board of 


 


8

















 


Directors in accordance with the Company’s or such
Subsidiary’s internal policy regarding action requiring approval of the Board
of Directors, (ii) as otherwise required by the Company’s or such Subsidiary’s
Board of Directors (or any applicable committee thereof), the Company’s
Officers or any officers of any such Subsidiary and/or (iii) as otherwise
required by applicable law, in each case, as the case may be.


(d)           In
connection with the performance of the Services under this Agreement, the
Manager shall have all necessary power and authority to perform, or cause to be
performed, such Services on behalf of the Company.


(e)           In
connection with the performance of its obligations under this Agreement, the
Manager is not permitted to engage in any activities that would cause it to
become an “investment adviser”
as defined in Section 202(a)(11) of the Investment Advisers Act, or any successor
provision thereto.


(f)            While
the Manager is providing the Services under this Agreement, the Manager shall
also be permitted to provide services, including services similar to the
Services covered hereby, to other Persons, including Affiliates of the
Manager.  This Agreement and the Manager’s
obligation to provide the Services under this Agreement shall not create an
exclusive relationship between the Manager and its Affiliates, on the one hand,
and the Company and its Subsidiaries, on the other.


Section 3.2            Obligations
of the Company


(a)           The
Company shall, and the Company shall cause its Subsidiaries to, do all things
reasonably necessary on their part as requested by the Manager consistent with
the terms of this Agreement to enable the Company to fulfill its obligations
under this Agreement.


(b)           The
Company shall, and the Company shall cause its Subsidiaries to, take reasonable
steps to ensure that:


(i)            the officers and employees of the
Company and its Subsidiaries, as the case may be, act in accordance with the
terms of this Agreement and the reasonable directions of the Manager in
fulfilling the Manager’s obligations hereunder and allowing the Manager to
exercise its powers and rights hereunder; and


(ii)           the Company and its Subsidiaries
provide to the Manager all reports (including monthly management reports and
all other relevant reports), which the Manager may reasonably require and on
such dates as the Manager may reasonably require.


(c)           Without
the prior written consent of the Manager, the Company shall not amend any
provision of the LLC Agreement that materially adversely affects, either
directly or indirectly, the rights of the Manager hereunder, as determined in
the reasonable discretion of the Manager.


(d)           The
Company shall maintain a Board of Directors consisting of a majority of
Independent Directors.


 


9

















 


(e)           The
Company shall take any and all actions necessary to ensure that it does not
become an “investment company”
as defined in Section 3(a)(1) of the Investment Company Act, or any successor
provision thereto.


Section 3.3            Acquisition
and Disposition Opportunities


(a)           Subject
to Section 3.3(d) hereof, the Company acknowledges and agrees that, in
connection with the performance by the Manager of its obligations hereunder,
the Manager may recommend to the Company, and may engage in on behalf of the
Company, transactions with the Manager or Affiliates of the Manager.


(b)           The
Company acknowledges and agrees that the Manager shall have, and the Company
does hereby grant to the Manager, exclusive responsibility for reviewing and
making recommendations to the Company’s Board of Directors with respect to
acquisition and disposition opportunities in accordance with the Acquisition
and Disposition Criteria then applicable; provided, that any changes,
revisions, supplements or other modifications to such Acquisition and
Disposition Criteria shall not be effective until sixty (60) days after receipt
by the Manager of such changes, revisions, supplements or other
modifications.  The Manager shall have
sole discretion to determine if any acquisition or disposition opportunities
satisfy the Acquisition and Disposition Criteria then applicable.  If the Manager determines that a particular
opportunity satisfies the Acquisition and Disposition Criteria then applicable,
the Manager shall refer such opportunity to the Company’s Board of Directors
for its consideration, authorization and approval prior to any consummation
thereof. In the event that such an opportunity is referred to the Company’s
Board of Directors and the Company’s Board of Directors determines not to
timely pursue such opportunity, in whole or in part, the whole or any part of
such opportunity that the Company’s Board of Directors determines not to pursue
may be pursued, and engaged in, by the Manager or may be referred by the
Manager to any Person, including Affiliates of the Manager, in the sole
discretion of the Manager, and the Company shall have no further rights
hereunder with respect to such opportunity or such part thereof, as the case
may be, and the Manager shall have no further obligation with respect
thereto.  If the Acquisition and
Disposition Criteria is changed, revised, supplemented or otherwise modified,
then such changed, revised, supplemented or otherwise modified Acquisition and
Disposition Criteria shall automatically replace Schedule 1 hereto
setting forth the Acquisition and Disposition Criteria that is then applicable
from time to time, subject to this Section 3.3(b).


(c)           In
the event that any acquisition or disposition opportunity is not originated by
the Manager, the Company’s Board of Directors shall seek a non-binding
recommendation from the Manager prior to making any decision concerning the
Company’s pursuit of such opportunity.


(d)           Except
with respect to transactions expressly contemplated by Offsetting Management
Services Agreements or Transaction Services Agreement, each of the Manager and
the Company acknowledges that the Nominating and Corporate Governance Committee
is required to authorize and approve all transactions arising out of any
acquisition or disposition opportunity that involves the Manager or an
Affiliate of the Manager, on the one hand, and the Company, or an Affiliate of
the Company, on the other hand. Accordingly, notwithstanding anything elsewhere
to the contrary, each of the Manager and the Company agrees that it will not, 


 


10

















 


and it will not permit any of its Affiliates to,
engage in any such transaction without the prior authorization and approval of
the Nominating and Corporate Governance Committee.


Section 3.4            Offsetting
Management Services


Notwithstanding anything else to the contrary herein,
the Company agrees that the Manager may, at any time, enter into Offsetting
Management Services Agreements relating to the performance by the Manager of
management services for Subsidiaries of the Company that may or may not be
similar to Services to be provided hereunder (“Offsetting Management
Services”); provided,
that any such Offsetting Management Services provided pursuant to an Offsetting
Management Services Agreement shall not be deemed to be Services provided
hereunder.  Any fee to be paid pursuant
to such an Offsetting Management Services Agreement (“Offsetting Management Fee”)
shall be paid directly by the relevant Subsidiary of the Company to the Manager
and shall not be deemed an obligation of the Company. Notwithstanding anything
else to the contrary in any Offsetting Management Services Agreement, the Parties
hereto agree (i) to use commercially reasonable efforts so that Offsetting
Management Fees to be paid with respect to any Fiscal Quarter shall be paid at
a time so as to permit such Offsetting Management Fees to be utilized for
adjustment in accordance with Section 7.1(c) hereof with respect to such Fiscal
Quarter, (ii) that the aggregate amount of all Offsetting Management Fees to be
paid by all of the Subsidiaries of the Company with respect to any Fiscal
Quarter shall not exceed the aggregate amount of the Management Fee calculated
with respect to such Fiscal Quarter; provided, that if the aggregate
amount of all Offsetting Management Fees to be paid by all of the Subsidiaries
of the Company with respect to any Fiscal Quarter exceeds the aggregate amount
of the Management Fee calculated with respect to such Fiscal Quarter, then the
Manager agrees that, notwithstanding anything to the contrary herein or in any
Offsetting Management Services Agreement, the Offsetting Management Fees to be
paid by each of the Subsidiaries of the Company under each of the Offsetting
Management Agreements shall be reduced, on a pro rata
basis, until the aggregate amount of all Offsetting Management Fees to be paid
by all of the Subsidiaries of the Company with respect to any Fiscal Quarter
does not exceed the aggregate amount of the Management Fee calculated with
respect to such Fiscal Quarter and (iii) that the aggregate amount of
Offsetting Management Fees paid or to be paid by all of the Subsidiaries of the
Company with respect to any Fiscal Year shall not exceed an amount that is
greater than 9.5% of the Company’s Gross Income with respect to such Fiscal
Year; provided, that if the aggregate amount of all Offsetting
Management Fees paid or to be paid by all of the Subsidiaries of the Company
with respect to any Fiscal Year exceeds, or is expected to exceed, 9.5% of the
Company’s Gross Income with respect to such Fiscal Year, then the Manager
agrees that the Offsetting Management Fees to be paid by each of the
Subsidiaries of the Company under each of the Offsetting Management Agreements
shall be reduced, on a pro rata basis,
until the aggregate amount of all Offsetting Management Fees to be paid by all
of the Subsidiaries of the Company with respect to such Fiscal Year does not
exceed 9.5% of the Company’s Gross Income with respect to such Fiscal
Year.  Subject to the other terms and
conditions hereof, entry into an Offsetting Management Services Agreement by
the Manager and any Subsidiary of the Company shall not be subject to
authorization and approval of the Nominating and Corporate Governance
Committee.


 


11

















 


Section
3.5            Change of Services


(a)           The
Company and the Manager shall have the right at any time during the term of this
Agreement to change the Services provided by the Manager and such changes shall
in no way otherwise affect the rights or obligations of any Party hereunder.


(b)           Any
change in the Services shall be authorized in writing and evidenced by an
amendment to this Agreement, as provided in Section 13.9 hereof.  Unless otherwise agreed in writing, the
provisions of this Agreement shall apply to all changes in the Services.


Section
3.6            Transaction Services


Notwithstanding anything else to the contrary herein,
the Company agrees that the Manager may, at any time, enter into Transaction
Services Agreements relating to the performance by the Manager of certain
transaction-related services, including, without limitation, those that are
customarily performed by a third-party investment banking firm or similar
financial advisor, which may or may not be similar to Services to be provided
hereunder, in connection with the acquisition of target businesses by the
Company or the Company’s Subsidiaries or dispositions of Subsidiaries of the
Company or any property or assets of the Company or its Subsidiaries (“Transaction
Services”); provided,
that any such Transaction Services shall not be deemed to be Services provided
hereunder.  Subject to the other terms an
conditions hereof, entry into a Transaction Services Agreement by the Manager
and any Subsidiary of the Company shall not be subject to authorization and
approval of the Nominating and Corporate Governance Committee.


The Company shall, or shall cause its Subsidiaries to,
as the case may be, contract for the performance of such Transaction Services
only by entry into a Transaction Services Agreement.


Transaction Fees are not Offsetting Management Fees
and shall not have the effect of Offsetting Management Fees as provided herein.  Any Transaction Services Agreement may also
provide for the reimbursement of costs and expenses of the Manager to the
extent Incurred in connection with the performance of any Transaction Services,
including costs and expenses referenced in Section 7.2(b)(iv) hereof.


At any time, the Nominating and Corporate Governance
Committee and the Manager may indicate their intention to renegotiate the
Transaction Fee, at which point the Nominating and Corporate Governance
Committee and the Manager may mutually agree on a new Transaction Fee to be
effective with respect to Transaction Services Agreements to be entered into
subsequent thereto; provided, that upon any renegotiation of the
Transaction Fee pursuant hereto, the Transaction Fee so renegotiated shall automatically
replace Schedule 2 hereto setting forth the Transaction Fee that is
applicable from time to time.


 


12






 










 


ARTICLE IV


POWERS OF THE
MANAGER


Section 4.1            Powers of
the Manager


(a)           The
Manager shall have no power to enter into any contract for or on behalf of the
Company or otherwise subject it to any obligation, such power to be the sole
right and obligation of the Company, acting through its Board of Directors
and/or the Company Officers.


(b)           Subject
to Section 4.2 and for purposes other than to delegate its duties and powers to
perform the Services hereunder, the Manager shall have the power to engage any
agents (including real estate agents and managing agents), valuers, contractors
and advisors (including operational, accounting, financial, tax and legal
advisors) that it deems necessary or desirable in connection with the
performance of its obligations hereunder, which costs therefor shall be subject
to reimbursement in accordance with Section 7.2 hereto.


Section 4.2            Delegation


The Manager may delegate or appoint:


(a)           Any
of its Affiliates as its agent, at its own cost and expense, to perform any or
all of the Services hereunder; or


(b)           Any
Person, whether or not an Affiliate of the Manager, as its agent, at its own
cost and expense, to perform those Services hereunder which, in the sole
discretion of the Manager, are Non-Critical Services;


provided,  however, that, in each case, the
Manager shall not be relieved of any of its obligations or duties owed to the
Company hereunder as a result of such delegation. The Manager shall be
permitted to share Company Information with its appointed agents subject to
appropriate, reasonable and customary confidentiality arrangements.  For the avoidance of doubt, any reference to
Manager herein shall include its delegates or appointees pursuant to this
Section 4.2.


Section 4.3            Manager’s
Obligations, Duties and Powers Exclusive


The Company agrees that during the term of this
Agreement, the obligations, duties and powers imposed on and granted to the
Manager under Article III and this Article IV are to be performed or held
exclusively by the Manager, subject to Section 4.2 hereof, and the Company
shall not, either directly or indirectly, through its employees, Board of
Directors or any other Person, as the case may be, perform any of the Services
except in circumstances where it is necessary to do so to comply with
applicable law or as otherwise agreed by the Manager.


 


13





















 


ARTICLE V


INSPECTION OF
RECORDS


Section 5.1            Books and
Records of the Company


At all reasonable times and on reasonable notice, the
Manager and any Person authorized by the Manager shall have access to, and the
right to inspect, for any reasonable purpose, during the term of this Agreement
and for a period of five (5) years after termination hereof, the books, records
and data stored in computers and all documentation of the Company pertaining to
all Services performed, or to be performed, by the Manager or the Management
Fee paid, or to be paid, by the Company to the Manager, in each case,
hereunder.  There shall be no cost or
expense charged by any Party to another Party pursuant to the exercise of any
right under this Section 5.1.


Section 5.2            Books and
Records of the Manager


At all reasonable times and on reasonable notice, the
Company and any Person authorized by the Company shall have access to, and the
right to inspect the books, records and data stored in computers and all
documentation of the Manager pertaining to all Services performed, or to be
performed, by the Manager or the Management Fee paid, or to be paid, by the
Company to the Manager, in each case, hereunder. There shall be no cost or
expense charged by any Party to another Party pursuant to the exercise of any
right under this Section 5.2.


ARTICLE VI


AUTHORITY OF THE
COMPANY

AND THE MANAGER


Each Party represents and warrants to the other that
it is duly authorized with full power and authority to execute, deliver and
perform its obligations and duties under this Agreement. The Company represents
and warrants that the engagement of the Manager has been duly authorized by the
Board of Directors of the Company and is in accordance with all governing
documents of the Company.


ARTICLE VII


MANAGEMENT FEE;
Expenses


Section 7.1            Management
Fee


(a)           Obligation.  Subject to the terms and conditions set forth
in this Section 7.1, for the term of this Agreement, (i) the MSA Administrator
shall calculate the fee payable to the Manager in accordance with this Section
7.1 (the “Management Fee”), and the components
thereof, in accordance with Section 7.1(b) hereof and (ii) the Company shall
pay the Management Fee to the Manager in accordance with Section 7.1(d) hereof.


 


14





















 


(b)           Calculation of Management Fee.  Subject to Section 7.1(c) hereof, as payment
to the Manager for performing Services hereunder during any Fiscal Quarter or
any part thereof, the MSA Administrator, as of the Calculation Date with
respect to such Fiscal Quarter, shall calculate, on or promptly following such
Calculation Date, the Management Fee with respect to such Fiscal Quarter, which
shall be equal to the product of
(i) 0.5%, multiplied by (ii) the
Adjusted Net Assets as of such Calculation Date; provided,  however, that, with respect to the Fiscal Quarter
in which the Commencement Date occurs, the Management Fee with respect to such
Fiscal Quarter or part thereof shall be equal to the product of (i)(x) 0.5%, multiplied
by (y) the Adjusted Net Assets as of the Calculation Date with
respect to such Fiscal Quarter, multiplied
by (ii) a fraction, the numerator of which is the number of days
from and including the Commencement Date to and including the last day of such
Fiscal Quarter and the denominator of which is the number of days in such
Fiscal Quarter;  provided, further, however, that, with respect to the Fiscal Quarter in which this
Agreement is terminated, the Management Fee with respect to such Fiscal Quarter
or part thereof shall be equal to the product
of (i)(x) 0.5%, multiplied by (y)
the Adjusted Net Assets as of the Calculation Date with respect to such Fiscal
Quarter, multiplied by (ii) a
fraction, the numerator of which is the number of days from and including the
first day of such Fiscal Quarter to but excluding the date upon which this
Agreement is terminated and the denominator of which is the number of days in
such Fiscal Quarter (such amount so calculated in accordance with this proviso,
the “Final Management Fee”).  Promptly upon calculating each Management
Fee, the MSA Administrator shall submit such calculation to the Chief Financial
Officer for his review.  If the Chief
Financial Officer identifies any discrepancy in such calculation, then the
Chief Financial Officer, on behalf of the Company, and the MSA Administrator
shall mutually resolve such discrepancy.


(c)           Adjustment of Management Fee.  The amount of any Management Fee calculated
in accordance with Section 7.1(b) hereof as of any Calculation Date shall be
adjusted, on a dollar-for-dollar basis (such Management Fee, as adjusted, the “Adjusted
Management Fee”), by the MSA Administrator immediately prior to
the Management Fee Payment Date with respect to such Calculation Date (such
date of adjustment, the “Adjustment Date”)
as follows:


(i)            reduced,
on a dollar-for-dollar basis,  by
the aggregate amount of all Offsetting Management Fees, if any, received by the
Manager from any of the Subsidiaries of the Company with respect to such Fiscal
Quarter as of the date of such adjustment;


(ii)           reduced,
on a dollar-for-dollar basis,  by
the aggregate amount of all Over-Paid Management Fees, if any, existing as of
such Calculation Date;


(iii)          increased,
on a dollar-for-dollar basis, by the aggregate amount of all Under-Paid
Management Fees, if any, existing as of such Calculation Date; and


(iv)          increased,
on a dollar-for-dollar basis, by the aggregate amount of all accrued and unpaid
Management Fees, if any, as of such Calculation Date, without duplication of
any of the foregoing.


                (d)           Payment
of Adjusted Management Fee.  Subject to Section 7.1(f) hereof, the Company
shall pay to the Manager, on each Management Fee Payment Date with respect to
each Calculation Date, the Adjusted Management Fee as of such Calculation
Date.  Any such payment on each
Management Fee Payment Date shall be made in U.S. dollars by wire transfer in
immediately available funds to an account or accounts designated by the Manager
from time to time; provided, however, that, notwithstanding the
foregoing, with respect to any such payment of Adjusted Management Fee to be
made on the (i) first, second, third or fourth Management Fee Payment Dates,
the portion of each such payment of Adjusted Management Fee equal to 50% of the
Management Fee related thereto (or such lower percentage if the Adjusted
Management Fee represents less than 50% of the Management Fee related thereto)
shall be made in the form of Common Shares issued by the Company on the
applicable Management Fee Payment Date, and (ii) fifth, sixth, seventh and
eighth Management Fee Payment Dates, the portion of each such payment of
Adjusted Management Fee equal to 33% of the Management Fee related thereto (or
such lower percentage if the Adjusted Management Fee represents less than 50%
of the Management Fee related thereto) shall be made in the form of Common
Shares issued by the Company on the applicable Management Fee Payment Date; provided,
that, in each case, the number of Common Shares to be issued on any such
Management Fee Payment Date shall be equal to the result
of (i) the relevant dollar amount to be paid to the Manager on such Management
Fee Payment Date in the form of Common Shares, divided by
(ii) the Average Market Price as of such Management Fee Payment Date; provided,
further, that if such calculation results in a fractional number, then
such number shall be rounded upwards to the next whole number to eliminate any
such fractional interest and the corresponding cash portion of any amount to be
paid on such Management Fee Payment Date shall be reduced accordingly; provided,
further, that in no event shall a number of Common Shares be issued in
connection with this Section 7.1(d) in excess of 1% of the total authorized
Common Shares of the Company as of the date of such issuance.  In connection with the issuance of any Common
Shares to the Manager on the first Management Fee Payment Date, the Company
shall provide to the Manager customary registration rights with respect to any
Common Shares issued or to be issued to the Manager from time to time, which
registration rights shall be set forth in documentation consistent with
documentation used to provide registration rights to other shareholders of the
Company.


 


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(e)           Basis for Calculation of Management Fee and Adjusted
Management Fee.  The
calculation of Management Fee, including the components thereof, with respect
to any Fiscal Quarter on any Calculation Date shall be based on (i) first, the
Company’s audited consolidated financial statements to the extent available,
(ii) if audited consolidated financial statements are not available, then the
Company’s unaudited consolidated financial statements to the extent available,
and (iii) if neither audited nor unaudited consolidated financial statements
are available, then the Company’s books and records then available; provided, that, with respect to
any calculation of the Management Fee based on the Company’s books and records,
upon availability of the earlier of (x) the Company’s audited consolidated
financial statements and (y) the Company’s unaudited consolidated financial
statements, in each case, relating to amounts previously calculated on such
Calculation Date by reference to the Company’s books and records, the MSA
Administrator shall recalculate (A) any Management Fees, and any components
thereof, that were previously calculated based on such books and records and
(B) any Adjusted Management Fees that were calculated based on such Management
Fees, in each case, to determine if any Over-Paid Management Fee or Under-Paid
Management Fee were outstanding as of such Calculation Date; provided, further, that
the amount so recalculated shall be conclusive and binding on the Parties
hereto and no further recalculations shall be required or permitted except that
a further recalculation shall be required and performed (A) upon a
demonstration of clear error with respect to any prior calculation or
recalculation or (B) upon the restatement of the consolidated financial
statements of the Company, or any amounts therein, underlying any prior
calculation or recalculation, in each case, at any time.  The calculation of Adjusted Management Fees,
including the components thereof, as of any Adjustment Date shall be made based
on information that is available as of such Adjustment Date; provided, that if any events, including the
payment of Offsetting Management Fees, occur after such Adjustment Date that
would affect the amount of Adjusted Management Fees calculated as of such
Adjustment Date, then the MSA Administrator shall recalculate Adjusted
Management Fees as of such Adjustment Date to determine if any Over-Paid
Management Fee or Under-Paid Management Fee were created as of the Calculation
Date immediately succeeding such Adjustment Date.  Notwithstanding the foregoing, the
calculation of the Final Management Fee, including the components thereof,
shall be made and based on the Company’s unaudited consolidated financial
statements for the Fiscal Quarter in which termination of this Agreement occurs
when such unaudited consolidated financial statements are available; provided, that, once calculated, no further
recalculation of Final Management Fee shall be required or permitted.


(f)            Sufficient Liquidity.  If the Company does not have sufficient
liquid assets to timely pay the entire amount of the Management Fee due on any
Management Fee Payment Date, the Company shall liquidate assets or Incur
Indebtedness in order to pay such Management Fee in full on such Management Fee
Payment Date; provided,
that the Manager may elect, in its sole discretion by delivery of written
notice to the Company prior to such Management Fee Payment Date, to allow the
Company to defer the payment of all or any portion of the Management Fee
otherwise due and payable on such Management Fee Payment Date until the next
succeeding Management Fee Payment Date and, thereby, enable the Company to
avoid such 


 


16





















 


liquidation or Incurrence.  For the avoidance of doubt, the Manager may
make such election to allow the Company to defer the payment of Management Fees
more than once.


(g)           Books and Records.  The MSA Administrator shall maintain
cumulative books and records with respect to the details of any calculations
made pursuant to this Section 7.1, which records shall be available for
inspection and reproduction at any time upon request by the Board of Directors
of the Company and, if the Manager is not the MSA Administrator, the Manager.


(h)           Annual Review by Compensation Committee.  All Management Fee calculations made pursuant
to this Section 7.1 shall be reviewed by the Compensation Committee on an
annual basis in connection with the preparation of the Company’s year-end
audited consolidated financial statements. 
If the Compensation Committee identifies any discrepancy in such
calculations, then the Compensation Committee, on behalf of the Company, and
the MSA Administrator shall mutually resolve such discrepancy.


Section 7.2            Reimbursement
of Expenses


(a)           Subject
to paragraph (b) of this Section 7.2 and Section 8.2 hereof, the Company shall
reimburse the Manager for all costs and expenses of the Company, including all
out-of-pocket costs and expenses, that are actually Incurred by the Manager or
its Affiliates on behalf of the Company in connection with performing Services
hereunder, and all costs and expenses the reimbursement of which is
specifically approved by the Board of Directors of the Company.


(b)           Notwithstanding
the foregoing or anything else to the contrary herein, neither the Company nor
any Subsidiary of the Company shall be obligated or responsible for reimbursing
or otherwise paying for any costs or expenses (i) relating to the Manager’s
overhead, (ii) Incurred by the Manager in connection with the identification,
evaluation, management, performance of due diligence on, negotiating and
oversight of potential acquisitions by the Company where the Board of Directors
of the Company does not resolve to pursue such potential acquisition, including
costs and expenses relating to travel, marketing and attendance at industry
events and retention of outside service providers relating thereto, (iii) 
of officers and employees seconded by the Manager in accordance with Sections
8.1 and 8.3 hereof, including costs and expenses relating to compensation of
such employees, or (iv) Incurred by the Manager in connection with the
identification, evaluation, management, performance of due diligence on,
negotiating and oversight of an acquisition by the Company if such acquisition
is actually closed by the Company to the extent that such costs and expenses
are required to be reimbursed by the Subsidiary so acquired, by any manner
whatsoever, pursuant to a Transaction Services Agreement.


(c)           Any
such reimbursement shall be made upon demand by the Manager in U.S. dollars by
wire transfer in immediately available funds to an account or accounts
designated by the Manager from time to time.


(d)           Except
as otherwise provided for in this Section 7.2, all reimbursements made pursuant
to this Section 7.2 shall be reviewed by the Compensation Committee on an
annual basis in connection with the preparation of the Company’s year-end
audited consolidated 


 


17





















 


financial statements. 
If the Compensation Committee identifies any discrepancy in such
reimbursements, then the Compensation Committee, on behalf of the Company, and
the Manager shall mutually resolve such discrepancy.


ARTICLE VIII


SECONDMENT OF
OFFICERS BY THE MANAGER


Section 8.1                                   Secondment
of the Required Seconded Officers


If, at any time, the Company has not engaged a Chief
Executive Officer and/or a Chief Financial Officer, the Manager shall second to
the Company individuals to serve as the Company’s Chief Executive Officer
and/or Chief Financial Officer (the “Required
Seconded Officers”). 
The Company’s Board of Directors shall elect such seconded officers as
officers of the Company in accordance with the terms of the LLC Agreement.  The Required Seconded Officers shall report
directly, and be subject, to the Company’s Board of Directors.


Section 8.2                                   Remuneration
of the Required Seconded Officers


(a)           If
seconded, the Required Seconded Officers shall, at all times, remain employees
of, and, subject to Section 8.4 hereof, be remunerated by, the Manager or an
Affiliate of the Manager.


(b)           Except
as set forth in Section 7.2 and Section 8.4 hereof, the Services performed for
or on behalf of the Company by the Required Seconded Officers shall be provided
at the cost and expense of the Manager or an Affiliate of the Manager.  Except as set forth in Section 7.2 and
Section 8.4 hereof, for the avoidance of doubt, the Company shall have no
obligation to reimburse the Manager for the compensation and other costs and
expenses of the Required Seconded Officers.


(c)           The Manager shall disclose the amount
of remuneration of the Required Seconded Officers to the Board of Directors of
the Company to the extent required for the Company to comply with the
requirements of applicable law, including Federal Securities Laws.


Section 8.3            Secondment
of Additional Officers and Other Personnel


Subject to Section 8.4 hereof, the Manager and the
Company’s Board of Directors may agree from time to time that the Manager shall
second to the Company one or more additional individuals to serve as officers
of the Company or in other capacities on behalf of the company (collectively,
the “Other Seconded Personnel”),
upon such terms as the Manager and the Company’s Board of Directors may mutually
agree.  Any such individuals shall have
such titles and fulfill such functions as the Manager and the Company may
mutually agree.


Section 8.4            Remuneration
of Additional Officers and Other Personnel


(a)           Except
as set forth in Section 7.2 hereof and this Section 8.4, the Services performed
for or on behalf of the Company by the Other Seconded Personnel shall be
provided at the cost and expense of the Manager or an affiliate of the Manager.
Except as set forth in 


 


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Section 7.2 hereof and this Section 8.4, for the
avoidance of doubt, the Company shall have no obligation to reimburse the
Manager for the compensation and other costs and expenses of any Other Seconded
Personnel.


(b)           In
the event that the Chief Financial Officer or other officers of the Company
serving on the staff of the Chief Financial Officer, including the Chief
Accounting Officer, are seconded by the Manager to the Company, then the
Manager may seek reimbursement of the
remuneration and the related costs and expenses of such individuals from the
Company; provided, that the Compensation Committee shall have the right
to establish the remuneration level for such individuals based on market terms
for the relevant position or title at issue.


(c)           The Manager shall disclose the amount
of remuneration of the Other Seconded Personnel to the Board of Directors of
the Company to the extent required for the Company to comply with the
requirements of applicable law, including Federal Securities Laws.


Section 8.5            Removal of
Seconded Officers


The Company’s Board of Directors, after due
consultation with the Manager, may at any time request that the Manager replace
any individual seconded to the Company as provided in this Article VIII and the
Manager shall, as promptly as practicable, replace any individual with respect
to whom the Company’s Board of Directors shall have made its request, subject
to the requirements for the election of officers under the LLC Agreement.


Section 8.6            Insurance


The Company agrees it shall maintain adequate
directors and officers insurance for any individuals seconded to the Company,
with liability coverage of no less than $25 million.


ARTICLE IX


TERMINATION;
RESIGNATION AND REMOVAL OF THE MANAGER


Section 9.1            Resignation
by the Manager


The Manager may resign at any time with 120 days’
prior written notice to the Company, which right shall not be contingent upon
the finding of a replacement manager. 
However, if the Manager resigns, until the date on which the resignation
becomes effective, the Manager shall, upon request of the Company’s Board of
Directors, use reasonable efforts to assist the Company’s Board of Directors to
find a replacement manager at no cost and expense to the Company.


Section 9.2            Removal of
the Manager


The Manager may be removed by the Company at any time,
if:


(a)           (i)
a majority of the Company’s Board of Directors vote to terminate this
Agreement, and (ii) the holders of at least a majority of the then outstanding
Common Shares 


 


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(other than Common Shares beneficially owned by the
Manager) vote to terminate this Agreement;


(b)           neither
Andrew M. Bursky, Timothy J. Fazio nor their designated successors, heirs,
beneficiaries or permitted assigns control the Manager, and such change
occurred without the prior written consent of the Company’s Board of Directors;


(c)           there
is a finding by a court of competent jurisdiction in a final, non-appealable
order that (i) the Manager materially breached the terms of this Agreement and
such breach continued unremedied for sixty (60) days after the Manager received
written notice from the Company setting forth the terms of such breach, or (ii)
the Manager (x) acted with gross negligence, willful misconduct, bad faith or
reckless disregard in performing its duties and obligations under this
Agreement or (y) engaged in fraudulent or dishonest acts in connection with the
business and operations of the Company;


(d)           (i)
the Manager has been convicted of a felony under Federal or State law, (ii) the
Company’s Board of Directors finds that the Manager is demonstrably and
materially incapable of performing its duties and obligations under this
Agreement, and (iii) the holders of at least sixty-six and two-thirds
percentage (66 2⁄3%) of then outstanding Common Shares (other than Common
Shares beneficially owned by the Manager) vote to terminate this Agreement; or


(e)           (i)
there is a finding by a court of competent jurisdiction that the Manager has
(x) engaged in fraudulent or dishonest acts in connection with the business or
operations of the Company or (y) gross negligence, willful misconduct, bad
faith or reckless disregard in performing its duties and obligations under this
Agreement, and (ii) the holders of at least sixty-six and two-thirds percentage
(66 2⁄3%) of the then outstanding Common Shares (other than Common Shares
beneficially owned by the Manager) vote to terminate this Agreement.


Section 9.3            Termination


Subject to Section 13.4, this Agreement shall
terminate upon the effective date of the resignation or removal of the Manager
in accordance with Sections 9.1 or 9.2 hereof.


Section 9.4            Seconded
Individuals


Upon the termination of this Agreement, all seconded
officers, including the Chief Executive Officer, President and Chief Accounting
Officer and employees, representatives and delegates of the Manager and its
Affiliates who perform Services hereunder, shall resign their respective
positions with the Company and cease working on behalf of the Company as of the
date of such termination or at such other time as determined by the
Manager.  Any Manager appointed director
may continue to serve on the Company’s Board of Directors subject to the terms
of the LLC Agreement.


 


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Section 9.5                                 [Reserved]


Section 9.6            Directions


After a written notice of termination has been given
under this Article IX, the Company may direct the Manager to undertake any
actions necessary to transfer any aspect of the ownership or control of the
assets of the Company to the Company or to any nominee of the Company and to do
all other things necessary to bring the appointment of the Manager to an end,
and the Manager shall comply with all such reasonable directions. In addition,
the Manager shall, at the Company’s expense, deliver to any new manager or the
Company any books or records held by the Manager under this Agreement and shall
execute and deliver such instruments and do such things as may reasonably be
required to permit new management of the Company to effectively assume its
responsibilities.


Section 9.7            Payments
Upon Termination


(a)           Notwithstanding
anything in this Agreement to the contrary, the fees, costs and expenses
payable to the Manager pursuant to Article VII hereof shall be payable to the
Manager upon, and with respect to, the termination of this Agreement pursuant
to this Article IX.  All payments made
pursuant to this Section 9.7(a) shall be made in accordance with Article VII
hereof.


(b)           Upon
termination of this Agreement pursuant to the event set forth in Section 9.2(a)
hereof, the Company shall pay the Termination Fee to the Manager.  The Termination Fee shall be payable in eight
(8) equal quarterly installments, with the first such installment being paid on
or within five (5) Business Days of the last day of the Fiscal Quarter in which
the Termination Fee Date occurs and each subsequent installment being paid on
or within five (5) Business Days of the last day of each subsequent Fiscal
Quarter, until such time as the Termination Fee is paid in full to the Manager.
Any payments made pursuant to this Section 9.7(b) shall be made in U.S. dollars
by wire transfer in immediately available funds to an account or accounts
designated by the Manager from time to time.


(c)           Subject
to Section 9.7(a) hereof, no termination fee shall be due or payable by the
Company to the Manager upon termination of this Agreement pursuant to any of
the events set forth in Section 9.2(b) to Section 9.2(e) hereof, inclusive.


ARTICLE X


INDEMNITY


Section 10.1         Indemnity


The Company shall indemnify, reimburse, defend and
hold harmless the Manager and its Affiliates and their respective successors
and permitted assigns, together with their respective employees, officers,
members, managers, directors, agents and representatives (collectively the “Indemnified
Parties”), from and against all losses (including lost profits),
costs, damages, injuries, taxes, penalties, interests, expenses, obligations,
claims and liabilities (joint or severable) of any kind or nature whatsoever
(collectively “Losses”) that are Incurred by such 


 


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Indemnified Parties in connection with, relating to or
arising out of (i) the breach of any term or condition of this Agreement, or
(ii) the performance of any Services hereunder; provided,  however,
that the Company shall not be obligated to indemnify, reimburse, defend or hold
harmless any Indemnified Party for any Losses Incurred, by such Indemnified
Party in connection with, relating to or arising out of:


(a)           a breach by such Indemnified Party of
this Agreement;


(b)           the gross negligence, willful
misconduct, bad faith or reckless disregard of such Indemnified Party in the
performance of any Services hereunder; or


(c)           fraudulent or dishonest acts of such
Indemnified Party with respect to the Company or any of its Subsidiaries.


The rights of any Indemnified Party referred to above
shall be in addition to any rights that such Indemnified Party shall otherwise
have at law or in equity.


Without the prior written consent of the Company, no
Indemnified Party shall settle, compromise or consent to the entry of any
judgment in, or otherwise seek to terminate any, claim, action, proceeding or
investigation in respect of which indemnification could be sought hereunder
unless (a) such Indemnified Party indemnifies the Company from any liabilities
arising out of such claim, action, proceeding or investigation, (b) such
settlement, compromise or consent includes an unconditional release of the
Company and Indemnified Party from all liability arising out of such claim,
action, proceeding or investigation and (c) the parties involved agree that the
terms of such settlement, compromise or consent shall remain confidential.


ARTICLE XI


LIMITATION OF
LIABILITY OF THE MANAGER


Section 11.1         Limitation of
Liability


The Manager shall not be liable for, and the Company
shall not take, or permit to be taken, any action against the Manager to hold
the Manager liable for, any error of judgment or mistake of law or for any loss
suffered by the Company or its Subsidiaries (including, without limitation, by
reason of the purchase, sale or retention of any security or assets) in
connection with the performance of the Manager’s duties under this Agreement,
except for a loss resulting from gross negligence, willful misconduct, bad
faith or reckless disregard on the part of the Manager in the performance of
its duties and obligations under this Agreement, or its fraudulent or dishonest
acts with respect to the Company or any of its Subsidiaries.


 


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Section 11.2         Reliance of
Manager


The Manager may take and may act and rely upon:


(a)           the
opinion or advice of legal counsel, which may be in-house counsel to the
Company or the Manager, any U.S.-based law firm, or other legal counsel
reasonably acceptable to the Board of Directors of the Company, in relation to
the interpretation of this Agreement or any other document (whether statutory
or otherwise) or generally in connection with the Company;


(b)           advice,
opinions, statements or information from bankers, accountants, auditors,
valuation consultants and other Persons consulted by the Manager who are in
each case believed by the Manager in good faith to be expert in relation to the
matters upon which they are consulted;


(c)           a
document which the Manager believes in good faith to be the original or a copy
of an appointment by the Company in respect of any Common Share or Allocation
Share or by a holder of a Common Share Certificate or a holder of an Allocation
Share Certificate in respect of a Common Share or an Allocation Share, in each
case, of a Person to act as such Person’s agent for any purpose relating to the
Company; and


(d)           any
other document provided to the Manager in connection with the Company upon
which it is reasonable for the Manager to rely.


The Manager shall not be liable for anything done,
suffered or omitted by it in good faith in reliance upon such opinion, advice,
statement, information or document.


ARTICLE XII


LEGAL ACTIONS


Section 12.1         Third Party
Claims


(a)           The
Manager shall notify the Company promptly of any claim made by any third party
in relation to the assets of the Company and shall send to the Company any
notice, claim, summons or writ served on the Manager concerning the Company.


(b)           The
Manager shall not, without the prior written consent of the Board of Directors
of the Company, purport to accept or admit any claims or liabilities of which
it receives notification pursuant to Section 12.1(a) above on behalf of the
Company or make any settlement or compromise with any third party in respect of
the Company.


 


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ARTICLE XIII


MISCELLANEOUS


Section 13.1         Obligation of
Good Faith; No Fiduciary Duties


The Manager shall perform its duties under this
Agreement in good faith and for the benefit of the Company. The relationship of
the Manager to the Company is as an independent contractor and nothing in this
Agreement shall be construed to impose on the Manager any express or implied
fiduciary duties; provided, that the officers seconded to the Company
pursuant hereto shall have the fiduciary duties imposed pursuant to the LLC
Agreement.


Section 13.2         Binding
Effect


This Agreement shall be binding upon, shall inure to
the benefit of and be enforceable by the Parties hereto and their respective
successors and permitted assigns.


Section 13.3         Compliance


(a)           The
Manager shall (and must ensure that each of its officers, agents and employees)
comply with any law, including the Federal Securities Laws and the securities
laws of any applicable jurisdiction and the Nasdaq Global Market (or any
successor thereto) rules and regulations, in each case, as in effect from time
to time, to the extent that it concerns the functions of the Manager under this
Agreement.


(b)           The
Manager shall maintain management systems, policies and internal controls and
procedures that reasonably ensure that the Manager and its employees comply
with the terms and conditions of this Agreement, as well as comply with the
internal policies, controls and procedures established by the Company from time
to time, including, without limitation, those relating to trading policies,
conflicts of interest and similar corporate governance measures.


Section 13.4         Effect of
Termination; Survival


This Agreement shall be effective as of the date first
above written and shall continue in full force and effect thereafter until
termination hereof in accordance with Article IX.  The obligations of the Parties set forth in
Articles VII, IX and X and Sections 8.2(c), 11.1, 13.4, 13.5, 13.7, 13.8, 13.9,
13.10, 13.17 and 13.19 hereof shall survive such termination of this Agreement,
subject to applicable law.


Section 13.5         Notices


Any notice or other communication required or
permitted under this Agreement shall be deemed to have been duly given (i) five
(5) Business Days following deposit in the mails if sent by registered or
certified mail, postage prepaid, (ii) when sent, if sent by facsimile
transmission, if receipt thereof is confirmed by telephone, (iii) when
delivered, if delivered personally to the intended recipient and (iv) two (2)
Business Days following deposit with a nationally recognized overnight courier
service, in each case addressed as follows:


 


24

















 


If to the Company, to:


Attention:  Chief Executive Officer


Atlas Industries Holdings
LLC


One Sound Shore Drive,
Suite 302


Greenwich, CT  06830


Fax:         203-622-0151


with a copy (which shall not constitute notice) to its
counsel:


Attention:  Christopher M. Zochowski


McDermott Will &
Emery LLP


600 Thirteenth Street,
N.W.


Washington, D.C. 20004


Fax:         202-756-8087


If to the Manager, to:


Attention:  Andrew M. Bursky


Atlas Industries
Management LLC


One Sound Shore Drive,
Suite 302


Greenwich, CT  06830


Fax:         203-622-0151


with a copy (which shall not constitute notice) to its
counsel:


As to be determined by the Manager  from
time to time.


or to such other address or facsimile number as any
such Party may, from time to time, designate in writing to all other Parties
hereto, and any such communication shall be deemed to be given, made or served
as of the date so delivered or, in the case of any communication delivered by
mail, as of the date so received.


Section 13.6         Headings


The headings in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.


Section 13.7         Applicable
Law


This Agreement, the legal relations between and
among the Parties and the adjudication and the enforcement thereof shall be
governed by and interpreted and construed in accordance with the laws of the
State of New York, without regard to the conflicts of law provisions thereof to
the extent such principles or rules would require or permit the application of
the laws of another jurisdiction.


 


25

















 


Section 13.8         Submission to
Jurisdiction; Waiver of Jury Trial


Subject to Section 13.19 hereof, each of the Parties
hereby irrevocably acknowledges and consents that any legal action or
proceeding brought with respect to any of the obligations arising under or
relating to this Agreement may be brought in the courts of the State of New
York, County of New York or in the United Stales District Court for the
Southern District of New York and each of the Parties hereby irrevocably
submits to and accepts with regard
to any such action or proceeding, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts. Each Party hereby further irrevocably waives any claim that any such
courts lack jurisdiction over such Party, and agrees not to plead or claim, in
any legal action or proceeding with respect to this Agreement or the
transactions contemplated hereby brought in any of the aforesaid courts, that
any such court lacks jurisdiction over such Party. Each Party irrevocably consents
to the service of process in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such party,
at its address for notices set forth in Section 13.5 hereof, such service to become effective ten
(10) days after such mailing.  Each Party
hereby irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other documents contemplated hereby that
service of process was in any way invalid or ineffective. The foregoing shall
not limit the rights of any Party to serve process in any other manner
permitted by applicable law.  The foregoing
consents to jurisdiction shall not constitute general consents to service of
process in the State of New York for any purpose except as provided above and
shall not be deemed to confer rights on any Person other than the respective
Parties.


Each of the Parties hereby waives any right it may have
under the laws of any jurisdiction to commence by publication any legal action
or proceeding with respect this Agreement. To the fullest extent permitted by
applicable law, each of the Parties hereby irrevocably waives the objection
which it may now or hereafter have to the laying of the venue of any suit,
action or proceeding arising out of or relating to this Agreement in any of the
courts referred to in this Section 13.8 and hereby further irrevocably waives
and agrees not to plead or claim that any such court is not a convenient forum
for any such suit, action or proceeding.


The Parties agree that any judgment obtained by any
Party or its successors or assigns in any action, suit or proceeding referred
to above may, in the discretion of such Party (or its successors or assigns),
be enforced in any jurisdiction, to the extent permitted by applicable law.


The Parties agree that the remedy at law for any
breach of this Agreement may be inadequate and that should any dispute arise
concerning any matter hereunder, this Agreement shall be enforceable in a court
of equity by an injunction or a decree of specific performance. Such remedies
shall, however, be cumulative and nonexclusive, and shall be in addition to any
other remedies which the Parties may have.


Each Party hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation as between the Parties directly or indirectly arising
out of, under or in connection with this Agreement or the transactions
contemplated hereby or disputes relating hereto. Each Party (i) certifies that
no representative, agent or attorney of any other Party has represented,
expressly or otherwise, that such other Party would 


 


26

















 


not, in the event of litigation, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other Parties have been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section 13.8.


Section 13.9         Amendment;
Waivers


No term or condition of this Agreement may be amended,
modified or waived without the prior written consent of the Party against whom
such amendment, modification or waiver will be enforced; provided, that any amendment of
Article VII or Sections 8.2 or 8.4 hereof shall not be effective as to any
Party hereto unless such amendment was authorized and approved by the
Compensation Committee.  Any waiver
granted hereunder shall be deemed a specific waiver relating only to the
specific event giving rise to such waiver and not as a general waiver of any
term or condition hereof.


Section 13.10       Remedies to
Prevailing Party


If any action at law or equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.


Section 13.11       Severability


Each provision of this Agreement is intended to be severable
from the others so that if, any provision or term hereof is illegal, invalid or
unenforceable for any reason whatsoever, such illegality, invalidity or
unenforceability shall not affect or impair the validity of the remaining
provisions and terms hereof; provided,  however,
that the provisions governing payment of the Management Fee described in
Article VII hereof are not severable.


Section 13.12       Benefits Only
to Parties


Nothing expressed by or mentioned in this Agreement is
intended or shall be construed to give any Person other than the Parties and
their respective successors or permitted assigns and the Indemnified Parties,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the Parties and their respective successors and permitted assigns,
and for the benefit of no other Person.


Section 13.13       Further
Assurances


Each Party hereto shall take any and all such actions,
and execute and deliver such further agreements, consents, instruments and any
other documents as may be necessary from time to time to give effect to the
provisions and purposes of this Agreement.


Section 13.14       No Strict
Construction


The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be 


 


27

















 


construed as if drafted jointly by all Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any provision of this Agreement.


Section 13.15       Entire
Agreement


This Agreement constitutes the sole and entire
agreement of the Parties with regards to the subject matter of this Agreement.
Any written or oral agreements, statements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force and
effect.


Section 13.16       Assignment


This Agreement shall not be assignable by either party
except by the Manager to any Person with which the Manager may merge or
consolidate or to which the Manager transfers substantially all of its assets,
and then only in the event that such assignee assumes all of the obligations to
the Company and the Subsidiaries of the Company hereunder.


Section 13.17       Confidentiality


(a)           The
Manager shall not, and the Manager shall cause its Affiliates and their
respective agents and representatives not to, at any time from and after the
date of this Agreement, directly or indirectly, disclose or use any
confidential or proprietary information, including Company Information,
involving or relating to (x) the Company, including any information contained
in the books and records of the Company and (y) the Company’s Subsidiaries,
including any information contained in the books and records of any such
Subsidiaries; provided,  however,
that disclosure and use of any information shall be permitted (i) with the
prior written consent of the Company, (ii) as, and to the extent, expressly
permitted by this Agreement, any Offsetting Management Services Agreement, any
Transaction Services Agreement or any other agreement between the Manager and
the Company or any of the Company’s Subsidiaries (but only to the extent that
such information relates to such Subsidiaries), (iii) as, and solely to the
extent, necessary or required for the performance by the Manager, any of its
Affiliates or its delegates, of any of their respective obligations under this
Agreement, (iv) as, and to the extent, necessary or required in the operation
of the Company’s business or operations in the Ordinary Course of Business, (v)
to the extent such information is generally available to, or known by, the
public or otherwise has entered the public domain (other than as a result of
disclosure in violation of this Section 13.17 by the Manager or any of its
Affiliates), (vi) as, and to the extent, necessary or required by any governmental
order, applicable law or any governmental authority, subject to Section
13.17(d), and (vii) as, and to the extent, necessary or required or reasonably
appropriate in connection with the enforcement of any right or remedy relating
to this Agreement, any Offsetting Management Services Agreement, any
Transaction Services Agreement or any other agreement between the Manager and
the Company or any of the Company’s Subsidiaries.


(b)           The
Manager shall produce and implement policies and procedures that are reasonably
designed to ensure compliance by the Manager’s directors, officers, employees,
agents and representatives with the requirements of this Section 13.17.


 


28

















 


(c)           For
the avoidance of doubt, confidential information includes business plans,
financial information, operational information, strategic information, legal
strategies or legal analysis, formulas, production processes, lists, names,
research, marketing, sales information and any other information similar to any
of the foregoing or serving a purpose similar to any of the foregoing with
respect to the business or operations of the Company or any of its
Subsidiaries.  However, the Parties are
not required to mark or otherwise designate information as “confidential
or proprietary information,”  “confidential” or “proprietary” in order to
receive the benefits of this Section 13.17.


(d)           In
the event that the Manager is required by governmental order, applicable law or
any governmental authority to disclose any confidential information of the
Company or any of its Subsidiaries that is subject to the restrictions of this
Section 13.17, the Manager shall (i) notify the Company or any of its
Subsidiaries in writing as soon as possible, unless it is otherwise
affirmatively prohibited by such governmental order, applicable law or such
governmental authority from notifying the Company or any such Subsidiaries, as
the case may be, (ii) cooperate with the Company or any such Subsidiaries to
preserve the confidentiality of such confidential information consistent with
the requirements of such governmental order, applicable law or such
governmental authority and (iii) use its reasonable best efforts to limit any
such disclosure to the minimum disclosure necessary or required to comply with
such governmental order, applicable law or such governmental authority, in each
case, at the cost and expense of the Company.


(e)           Nothing
in this Section 13.17 shall prohibit the Manager from keeping or maintaining
any copies of any records, documents or other information that may contain
information that is otherwise subject to the requirements of this Section
13.17, subject to its compliance with this Section 13.17.


(f)            The
Manager shall be responsible for any breach or violation of the requirements of
this Section 13.17 by any of its agents or representatives.


Section 13.18       Counterparts


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


Section 13.19         Dispute
Resolution


All disputes arising out of this Agreement or relating
to the performance of either Party of its obligations hereunder, which disputes
the Parties are unable to resolve directly between themselves, shall be settled
by arbitration in New York, New York (unless the Manager and the Company agree
upon another location) before three arbitrators in accordance with the rules
then in effect of the American Arbitration Association.


*              *              *


 


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IN WITNESS WHEREOF,
the Parties have executed this Agreement as of the date first set forth above,


 


	
  

  	
   

  	
  ATLAS INDUSTRIES MANAGEMENT LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  	
  Andrew M. Bursky

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ATLAS INDUSTRIES HOLDINGS LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  	
  Richard C. Gozon

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Lead Independent Director

  



 

















 










 


SCHEDULE
1


Acquisition
and Disposition Criteria


 














 


SCHEDULE
2


 


Transaction
Fee


 














 


EXHIBIT A


Form of
Offsetting Management Services Agreement


 

















 


 


 


 


FORM OF


MANAGEMENT SERVICES
AGREEMENT


BY AND BETWEEN


 






 


 


AND


ATLAS INDUSTRIES
MANAGEMENT LLC


Dated as of __________,
20__


 






 










 


TABLE OF CONTENTS


 


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE
  I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  ARTICLE
  II

  	
   

  	
  APPOINTMENT
  OF THE MANAGER

  	
   

  	
  4

  
	
  Section 2.1

  	
   

  	
  Appointment

  	
   

  	
  4

  
	
  Section 2.2

  	
   

  	
  Term

  	
   

  	
  4

  
	
  ARTICLE
  III

  	
   

  	
  OBLIGATIONS
  OF THE PARTIES

  	
   

  	
  5

  
	
  Section 3.1

  	
   

  	
  Obligations
  of the Manager

  	
   

  	
  5

  
	
  Section 3.2

  	
   

  	
  Obligations
  of the Company

  	
   

  	
  6

  
	
  Section 3.3

  	
   

  	
  Change
  of Services

  	
   

  	
  6

  
	
  ARTICLE
  IV

  	
   

  	
  POWERS
  OF THE MANAGER

  	
   

  	
  6

  
	
  Section 4.1

  	
   

  	
  Powers
  of the Manager

  	
   

  	
  6

  
	
  Section 4.2

  	
   

  	
  Delegation

  	
   

  	
  6

  
	
  Section 4.3

  	
   

  	
  Manager’s
  Obligations, Duties and Powers Exclusive

  	
   

  	
  7

  
	
  ARTICLE
  V

  	
   

  	
  INSPECTION
  OF RECORDS

  	
   

  	
  7

  
	
  Section 5.1

  	
   

  	
  Books
  and Records of the Company

  	
   

  	
  7

  
	
  Section 5.2

  	
   

  	
  Books
  and Records of the Manager

  	
   

  	
  7

  
	
  ARTICLE
  VI

  	
   

  	
  AUTHORITY
  OF THE COMPANY AND THE MANAGER

  	
   

  	
  8

  
	
  ARTICLE
  VII

  	
   

  	
  MANAGEMENT
  FEE; EXPENSES

  	
   

  	
  8

  
	
  Section 7.1

  	
   

  	
  Management
  Fee

  	
   

  	
  8

  
	
  Section 7.2

  	
   

  	
  Reimbursement
  of Expenses

  	
   

  	
  9

  
	
  ARTICLE
  VIII

  	
   

  	
  TERMINATION;
  RESIGNATION AND REMOVAL OF THE MANAGER

  	
   

  	
  9

  
	
  Section 8.1

  	
   

  	
  Resignation
  by the Manager

  	
   

  	
  9

  
	
  Section 8.2

  	
   

  	
  Removal
  of the Manager

  	
   

  	
  10

  
	
  Section 8.3

  	
   

  	
  Termination

  	
   

  	
  10

  
	
  Section 8.4

  	
   

  	
  Directions

  	
   

  	
  10

  
	
  Section 8.5

  	
   

  	
  Payments
  Upon Termination

  	
   

  	
  10

  
	
  ARTICLE
  IX

  	
   

  	
  INDEMNITY

  	
   

  	
  10

  



 


 


i

















 


TABLE OF CONTENTS


(continued)


	
  

  	
   

  	
  

  	
   

  	
  Page

  
	
  ARTICLE
  X

  	
   

  	
  LIMITATION
  OF LIABILITY OF THE MANAGER

  	
   

  	
  11

  
	
  Section 10.1

  	
   

  	
  Limitation
  of Liability

  	
   

  	
  11

  
	
  Section 10.2

  	
   

  	
  Reliance
  of Manager

  	
   

  	
  11

  
	
  ARTICLE
  XI

  	
   

  	
  LEGAL
  ACTIONS

  	
   

  	
  12

  
	
  Section 11.1

  	
   

  	
  Third
  Party Claims

  	
   

  	
  12

  
	
  ARTICLE
  XII

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  12

  
	
  Section 12.1

  	
   

  	
  Obligation
  of Good Faith; No Fiduciary Duties

  	
   

  	
  12

  	 

	
  Section 12.2

  	
   

  	
  Binding
  Effect

  	
   

  	
  12

  	 

	
  Section 12.3

  	
   

  	
  Compliance

  	
   

  	
  12

  	 

	
  Section 12.4

  	
   

  	
  Effect
  of Termination; Survival

  	
   

  	
  13

  	 

	
  Section 12.5

  	
   

  	
  Notices

  	
   

  	
  13

  	 

	
  Section 12.6

  	
   

  	
  Headings

  	
   

  	
  14

  	 

	
  Section 12.7

  	
   

  	
  Applicable
  Law

  	
   

  	
  14

  	 

	
  Section 12.8

  	
   

  	
  Submission
  to Jurisdiction; Waiver of Jury Trial

  	
   

  	
  14

  	 

	
  Section 12.9

  	
   

  	
  Amendment;
  Waivers

  	
   

  	
  15

  	 

	
  Section 12.10

  	
   

  	
  Remedies
  to Prevailing Party

  	
   

  	
  15

  	 

	
  Section 12.11

  	
   

  	
  Severability

  	
   

  	
  15

  	 

	
  Section 12.12

  	
   

  	
  Benefits
  Only to Parties

  	
   

  	
  16

  	 

	
  Section 12.13

  	
   

  	
  Further
  Assurances

  	
   

  	
  16

  	 

	
  Section 12.14

  	
   

  	
  No
  Strict Construction

  	
   

  	
  16

  	 

	
  Section 12.15

  	
   

  	
  Entire
  Agreement

  	
   

  	
  16

  	 

	
  Section 12.16

  	
   

  	
  Assignment

  	
   

  	
  16

  	 

	
  Section 12.17

  	
   

  	
  Confidentiality

  	
   

  	
  16

  	 

	
  Section 12.18

  	
   

  	
  Counterparts

  	
   

  	
  18

  	 

	
  Section 12.19

  	
   

  	
  Designation

  	
   

  	
  18

  	 

	
  Section 12.20

  	
   

  	
  Dispute
  Resolution

  	
   

  	
  18

  	 

										



 


ii














 


MANAGEMENT SERVICES AGREEMENT
(as amended, revised, supplemented or otherwise modified from time to time,
this “Agreement”),
dated as of _________, 20__, by and between ______________________, a
________________ (the “Company”), and Atlas Industries Management LLC, a Delaware
limited liability company (the “Manager”).  Each party
hereto shall be referred to as, individually, a “Party” and, collectively, the “Parties”.


WHEREAS, the Board
of Directors has determined that it would be in the best interests of the
Company to appoint the Manager to perform the Services (as such term is defined
herein) and, therefore, the Company has agreed to appoint the Manager to
perform the Services on the terms and subject to the conditions set forth
herein;


WHEREAS, the Manager
has agreed to act as Manager and to perform the Services on the terms and
subject to the conditions set forth herein;


WHEREAS, the
Manager also acts as an external manager for Atlas Industries Holdings LLC, the
Company’s parent entity (the “Parent”),
pursuant to the Managment Services Agreement by and between Parent and the
Manager, dated as of ______________, 2007 (the “Parent MSA”);
and


WHEREAS, this
Agreement is an “Offsetting Management Services Agreement” as defined and
referenced in the Parent MSA.


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


ARTICLE I



definitions


Section
1.1            Definitions


For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:


(i)            the
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;


(ii)           any
reference to an “Article,” “Section” or an “Exhibit” refers to an Article,
Section or an Exhibit, as the case may be, of this Agreement; and


(iii)          the
words “herein,” “hereinafter,” “hereof,” “hereto and “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision:


 


1

















 


“Affiliate”
means, with respect to any Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such Person or (ii) any
officer, director, general member, member or trustee of such Person. For
purposes of this definition, the terms “controlling,” “controlled by”
or “under common control with” shall mean, with respect to any
Persons, the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, or the power to elect
at least 50% of the directors, managers, general members, or Persons exercising
similar authority with respect to such Person.


“Agreement”
has the meaning set forth in the preamble of this Agreement.


“Board
of Directors” means the Board of Directors of the
Company or any committee thereof that has been duly authorized by the Board of
Directors to make a decision on the matter in question or bind the Company as
to the matter in question.


“Business
Day” means any day other than a Saturday, a Sunday
or a day on which banks in The City of New York are required, permitted or
authorized, by applicable law or executive order, to be closed for regular
banking business.


“Commencement
Date” means the date of the closing of the IPO by
the Parent.


“Common
Shares” has the meaning set forth in the LLC
Agreement.


“Company”
has the meaning set forth in the preamble of this Agreement.


“Company
Information” means any information concerning the
Company or any of the Subsidiaries of the Company and their respective
financial condition, business or operations that (i) relates to earnings, (ii)
is competitively sensitive, (iii) relates to trade secrets, (iv) is proprietary
or (v) is similar to any of the foregoing information.


“Exchange
Act” means the Securities Exchange Act of
1934, as amended.


“Federal
Securities Laws” means, collectively, the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder.


“Fiscal Quarter” means
each fiscal quarter of the Company for purposes of the Parent’s reporting
obligations under the Exchange Act.


“Fiscal Year” means each
fiscal year of the Company for purposes of the Parent’s reporting obligations
under the Exchange Act.


“GAAP” means generally
accepted accounting principles in effect in the United States, consistently
applied.


“Gross Income” has the
meaning set forth in Section 61(a) of the Internal Revenue Code of 1986, as
amended.


 


2

















 


“Incur” means, with
respect to any Indebtedness or other obligation of a Person, to create, issue,
acquire (by conversion, exchange or otherwise), assume, suffer, guarantee or
otherwise become liable in respect of such Indebtedness or other obligation.


“Indebtedness” means, with
respect to any Person, (i) any liability for borrowed money, or under any
reimbursement obligation relating to a letter of credit, (ii) all indebtedness
(including bond, note, debenture, purchase money obligation or similar instrument)
for the acquisition of any businesses, properties or assets of any kind (other
than property, including inventory, and services purchased, trade payables,
other expenses accruals and deferred compensation items arising in the Ordinary
Course of Business), (iii) all obligations under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (iv) any
liabilities of others described in the preceding clauses (i) to (iii)
(inclusive) that such Person has guaranteed or for which such Person is
otherwise legally obligated, and (v) (without duplication) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (i) through (iv) above.


“Indemnified
Parties” has the meaning set forth in Article IX
hereof.


“Investment
Advisers Act” means the Investment Advisers Act of
1940, as amended.


“IPO”
means the initial public offering of Common Shares by the Parent, closing on
the date hereof.


“LLC
Agreement” means the ________ Amended and Restated
Operating Agreement of the Parent, dated as of ________, 2007, including all
exhibits and schedules attached thereto, as may be amended, revised,
supplemented or otherwise modified from time to time.


“Losses”
has the meaning set forth in Article IX hereof.


“Management
Fee” has the meaning set forth in Section 7.1(a)
hereof.


“Management
Fee Payment Date” means the last Business Day of
each Fiscal Quarter or, in the case of the Fiscal Quarter in which this
Agreement is terminated, the Termination Date.


“Manager”
has the meaning set forth in the preamble of this Agreement.


“Non-Critical
Services” means any Services other than the
Services for which the Manager was engaged by the Company in light of the
experience and expertise of the employees of the Manager.


“Offsetting
Management Fees” has the meaning specified in the
Parent MSA.


“Offsetting
Management Services Agreement” has the meaning
specified in the Parent MSA.


“Ordinary Course of Business”
means, with respect to any Person, an action taken by such Person if such
action is (i) consistent with the past practices of such Person and is taken in
the normal day-to-day business or operations of such Person and (ii) which is
not required to be specifically authorized or approved by the board of
directors of such Person.


 


3

















 


“Parent”  has the meaning
set forth in the recitals to this Agreement.


“Parent Management Fee” has the meaning
set forth in Section 7.1(a) hereof.


“Parent MSA”  has the meaning set forth in the recitals to this
Agreement.


“Party” and “Parties” have the meaning set forth in the preamble
of this Agreement.


“Person”
means any individual, company (whether general or limited), limited liability
company, corporation, trust, estate, association, nominee or other entity.


“Quarterly Fee Amount” has
the meaning set forth in Section 7.1(a) hereof.


“Securities
Act” means the Securities Act of 1933, as
amended.


“Services”
has the meaning set forth in Section 3.1(b) hereof.


“Subsidiary”
means, with respect to any Person, any corporation, company, joint venture,
limited liability company, association or other entity in which such Person
owns, directly or indirectly, more than 50% of the outstanding voting equity
securities or interests, the holders of which are generally entitled to vote
for the election of the board of directors or other governing body of such
entity.


“Termination Fee” means
the amount equal to the product of
(i) the Quarterly Fee Amount multiplied by (ii)
eight (8).


“Termination Date” means
the date upon which this Agreement is terminated pursuant Article VIII hereof.


ARTICLE
II


APPOINTMENT
OF THE MANAGER


Section
2.1            Appointment


The Company hereby agrees to, and hereby does, appoint
the Manager to perform the Services as set forth in Section 3.1 herein and in
accordance with the terms and conditions of this Agreement.


Section
2.2                                   Term


The Manager shall provide Services to the Company from
the Commencement Date until the termination of this Agreement in accordance
with Article VIII hereof.


 


4

















 


ARTICLE
III


OBLIGATIONS
OF THE PARTIES


Section
3.1                                   Obligations
of the Manager


(a)           Subject
always to the oversight and supervision of the Board of Directors and the terms
and conditions of this Agreement, the Manager shall during the term of this
Agreement perform the Services as set forth in Section 3.1(b) below and comply
with the operational objectives and business plans of the Company in existence
from time to time. The Company shall promptly provide the Manager with all
stated operational objectives and business plans of the Company approved by the
Board of Directors and any other available information reasonably requested by
the Manager.


(b)           The
Manager agrees and covenants that it shall perform, or cause to be performed,
the following services hereunder (as may be modified from time to time pursuant
to Section 3.3 hereof, the “Services”):


(i)            conduct
general and administrative supervision and oversight of the Company’s
day-to-day business and operations, including, but not limited to, recruiting
and hiring of personnel, administration of personnel and personnel benefits,
development of administrative policies and procedures, establishment and
management of banking services, managing and arranging for the maintaining of
liability insurance, arranging for equipment rental, maintenance of all
necessary permits and licenses, acquisition of any additional licenses and
permits that become necessary, participation in risk management policies and
procedures; and


(ii)           oversee
and consult with respect to the Company’s business and operational strategies,
the implementation of such strategies and the evaluation of such strategies,
including, but not limited to, strategies with respect to capital expenditure
and expansion programs, acquisitions or dispositions and product or service
lines.


(d)           In
connection with the performance of the Services under this Agreement, the
Manager shall have all necessary power and authority to perform, or cause to be
performed, such Services on behalf of the Company.


(e)           In
connection with the performance of its obligations under this Agreement, the
Manager is not permitted to engage in any activities that would cause it to
become an “investment adviser” as defined in Section 202(a)(11) of the
Investment Advisers Act, or any successor provision thereto.


(f)            While
the Manager is providing the Services under this Agreement, the Manager shall
also be permitted to provide services, including services similar to the
Services covered hereby, to other Persons, including Affiliates of the
Manager.  This Agreement and the Manager’s
obligation to provide the Services under this Agreement shall not create an
exclusive relationship between the Manager and its Affiliates, on the one hand,
and the Company and its Subsidiaries, on the other.


 


5


 

















 


Section
3.2            Obligations of the Company


(a)           The
Company shall, and the Company shall cause its Subsidiaries to, do all things
reasonably necessary on their part as requested by the Manager consistent with
the terms of this Agreement to enable the Company to fulfill its obligations
under this Agreement.


(b)           The
Company shall, and the Company shall cause its Subsidiaries to, take reasonable
steps to ensure that:


(i)            the officers and employees of the
Company and its Subsidiaries, as the case may be, act in accordance with the
terms of this Agreement and the reasonable directions of the Manager in
fulfilling the Manager’s obligations hereunder and allowing the Manager to
exercise its powers and rights hereunder; and


(ii)           the Company and its Subsidiaries
provide to the Manager all reports (including monthly management reports and
all other relevant reports) that the Manager may reasonably require and on such
dates as the Manager may reasonably require.


Section
3.3            Change of Services


(a)           The
Company and the Manager shall have the right at any time during the term of
this Agreement to change the Services provided by the Manager and such changes
shall in no way otherwise affect the rights or obligations of any Party
hereunder.


(b)           Any
change in the Services shall be authorized in writing and evidenced by an
amendment to this Agreement, as provided in Section 12.9 hereof.  Unless otherwise agreed in writing, the
provisions of this Agreement shall apply to all changes in the Services.


ARTICLE
IV


POWERS OF
THE MANAGER


Section
4.1                                   Powers
of the Manager


(a)           The
Manager shall have no power to enter into any contract for or on behalf of the
Company or otherwise subject it to any obligation, such power to be the sole
right and obligation of the Company, acting through its Board of Directors
and/or the Company’s officers.


(b)           Subject
to Section 4.2 and for purposes other than to delegate its duties and powers to
perform the Services hereunder, the Manager shall have the power to engage any
agents (including real estate agents and managing agents), valuers, contractors
and advisors (including operational, accounting, financial, tax and legal
advisors) that it deems necessary or desirable in connection with the
performance of its obligations hereunder, which costs therefor shall be subject
to reimbursement in accordance with Section 7.2 hereto.


 


6


 

















 


Section
4.2            Delegation


The Manager may delegate or appoint:


(a)           Any
of its Affiliates as its agent, at its own cost and expense, to perform any or
all of the Services hereunder; or


(b)           Any
Person, whether or not an Affiliate of the Manager, as its agent, at its own
cost and expense, to perform those Services hereunder which, in the sole
discretion of the Manager, are Non-Critical Services;


provided,  however, that, in each case, the Manager shall
not be relieved of any of its obligations or duties owed to the Company
hereunder as a result of such delegation. The Manager shall be permitted to
share Company Information with its appointed agents subject to appropriate,
reasonable and customary confidentiality arrangements.  For the avoidance of doubt, any reference to
Manager herein shall include its delegates or appointees pursuant to this
Section 4.2.


Section
4.3            Manager’s Obligations,
Duties and Powers Exclusive


The Company agrees that during the term of this
Agreement, the obligations, duties and powers imposed on and granted to the Manager
under Article III and this Article IV are to be performed or held exclusively
by the Manager, subject to Section 4.2 hereof, and the Company shall not,
either directly or indirectly, through its employees, Board of Directors or any
other Person, as the case may be, perform any of the Services except in
circumstances where it is necessary to do so to comply with applicable law or
as otherwise agreed by the Manager.


ARTICLE V


INSPECTION
OF RECORDS


Section
5.1                                   Books
and Records of the Company


At all reasonable times and on reasonable notice, the
Manager and any Person authorized by the Manager shall have access to, and the
right to inspect, for any reasonable purpose, during the term of this Agreement
and for a period of five (5) years after termination hereof, the books, records
and data stored in computers and all documentation of the Company pertaining to
all Services performed, or to be performed, by the Manager or the Management
Fee paid, or to be paid, by the Company to the Manager, in each case, hereunder.  There shall be no cost or expense charged by
any Party to another Party pursuant to the exercise of any right under this
Section 5.1.


Section
5.2                                   Books
and Records of the Manager


At all reasonable times and on reasonable notice, the
Company and any Person authorized by the Company shall have access to, and the
right to inspect the books, records and data stored in computers and all
documentation of the Manager pertaining to all Services performed, or to be
performed, by the Manager or the Management Fee paid, or to be paid, by the
Company to the Manager, in each case, hereunder. There shall be no cost or
expense charged by any Party to another Party pursuant to the exercise of any
right under this Section 5.2.


 


7


 

















 


ARTICLE
VI


AUTHORITY
OF THE COMPANY

AND THE MANAGER


Each Party represents and warrants to the other that
it is duly authorized with full power and authority to execute, deliver and
perform its obligations and duties under this Agreement. The Company represents
and warrants that the engagement of the Manager has been duly authorized by the
Board of Directors and is in accordance with all governing documents of the
Company.


ARTICLE
VII


MANAGEMENT
FEE; Expenses


Section
7.1                                   Management
Fee


(a)           Obligation.  Subject to the terms and conditions set forth
in this Section 7.1, for the term of this Agreement, as payment to the Manager
for performing Services hereunder during any Fiscal Quarter or any part
thereof, the Company shall pay a quarterly management fee (the “Management Fee”)
to the Manager on each Management Fee Payment Date equal to $_________ per
quarter (the “Quarterly
Fee Amount”); provided,  however, that
(i) with respect to the Fiscal Quarter in which the Commencement Date occurs,
the Management Fee with respect to such Fiscal Quarter or part thereof shall be
equal to the product of (x) the
Quarterly Management Fee, multiplied by
(y) a fraction, the numerator of which is the number of days from and including
the Commencement Date to and including the last day of such Fiscal Quarter and
the denominator of which is the number of days in such Fiscal Quarter, (ii)
with respect to the Fiscal Quarter in which this Agreement is terminated, the
Management Fee with respect to such Fiscal Quarter or part thereof shall be
equal to the product of (x) the
Quarterly Management Fee, multiplied by
(y) a fraction, the numerator of which is the number of days from and including
the first day of such Fiscal Quarter to but excluding the date upon which this
Agreement is terminated and the denominator of which is the number of days in
such Fiscal Quarter, (iii) if the aggregate amount of Management Fees paid or
to be paid by the Company, together with all other management fees paid or to
be paid by all other Subsidiaries of the Parent to the Manager, in each case,
with respect to any Fiscal Year exceeds, or is expected to exceed, 9.5% of the
Parent’s Gross Income with respect to such Fiscal Year, then the Manager agrees
that the Management Fee to be paid by the Company for any remaining Fiscal
Quarters in such Fiscal Year shall be reduced, on a pro rata basis determined by reference to the management
fees to be paid to the Manager by all of the Subsidiaries of the Parent, until
the aggregate amount of the Management Fee paid or to be paid by the Company,
together with all other management fees paid or to be paid by all other
Subsidiaries of the Parent to the Manager, in each case, with respect to such
Fiscal Year, does not exceed 9.5% of the Parent’s Gross Income with respect to
such Fiscal Year, and (iv) if the aggregate amount the Management Fee paid or
to be paid by the Company, together with all other management fees paid or to
be paid by all other Subsidiaries of the Parent to the Manager, in each case,
with respect to any Fiscal Quarter exceeds, or is expected to exceed, the
aggregate amount of the management fee (before any adjustment thereto)
calculated and payable under the Parent MSA (the “Parent
Management Fee”) with respect to 


 


8

















 


such Fiscal Quarter, then the Manager agrees that the
Management Fee to be paid by the Company for such Fiscal Quarter shall be
reduced, on a pro rata basis, until the
aggregate amount of the Management Fee paid or to be paid by the Company,
together with all other management fees paid or to be paid by all other
Subsidiaries of the Parent to the Manager, in each case, with respect to such
Fiscal Quarter, does not exceed the Parent Management Fee calculated and
payable with respect to such Fiscal Quarter. 
The Management Fee shall be paid in U.S. dollars by wire transfer in
immediately available funds to an account or accounts designated by the Manager
from time to time.


(b)           Sufficient Liquidity.  If the Company does not have sufficient liquid
assets to timely pay the entire amount of the Management Fee due on any
Management Fee Payment Date, the Company shall liquidate assets or Incur
Indebtedness in order to pay such Management Fee in full on such Management Fee
Payment Date.


Section
7.2            Reimbursement of Expenses


(a)           Subject
to paragraph (b) of this Section 7.2, the Company shall reimburse the Manager
for all costs and expenses of the Company, including all out-of-pocket costs
and expenses, that are actually Incurred by the Manager or its Affiliates on
behalf of the Company in connection with performing Services hereunder, and all
costs and expenses the reimbursement of which is specifically approved by the
Board of Directors.


(b)           Notwithstanding
the foregoing or anything else to the contrary herein, neither the Company nor
any Subsidiary of the Company shall be obligated or responsible for reimbursing
or otherwise paying for any costs or expenses relating to the Manager’s
overhead or to the Manager’s conduct or maintenance of its business and
operations as a provider of management services.


(c)           Any
such reimbursement shall be made upon demand by the Manager in U.S. dollars by
wire transfer in immediately available funds to an account or accounts
designated by the Manager from time to time.


ARTICLE
VIII


TErmination;
RESIGNATION AND REMOVAL OF THE MANAGER


Section
8.1                                   Resignation
by the Manager


The Manager may resign at any time upon sixty (60)
days’ prior written notice to the Company, which right shall not be contingent
upon the finding of a replacement manager. 
However, if the Manager resigns, until the date on which the resignation
becomes effective, the Manager shall, upon request of the Board of Directors,
use reasonable efforts to assist the Board of Directors to find a replacement
manager at no cost and expense to the Company.


 


9


 

















 


Section
8.2            Removal of the Manager


The Manager may be removed by the Company at any time
upon sixty (60) days’ prior written notice to the Manager, which right shall
not be contingent upon the finding of a replacement manager.


Section
8.3            Termination


Subject to Section 12.4, this Agreement shall
terminate upon the effective date of the resignation or removal of the Manager
in accordance with Sections 8.1 or 8.2 hereof.


Section
8.4            Directions


After a written notice of termination has been given
under this Article VIII, the Company may direct the Manager to undertake any
actions necessary to transfer any aspect of the ownership or control of the
assets of the Company to the Company or to any nominee of the Company and to do
all other things necessary to bring the appointment of the Manager to an end,
and the Manager shall comply with all such reasonable directions. In addition,
the Manager shall, at the Company’s expense, deliver to any new manager or the
Company any books or records held by the Manager under this Agreement and shall
execute and deliver such instruments and do such things as may reasonably be
required to permit new management of the Company to effectively assume its
responsibilities.


Section
8.5            Payments Upon Termination


Notwithstanding anything in this Agreement to the
contrary, the fees, costs and expenses payable to the Manager pursuant to
Article VII hereof shall be payable to the Manager upon, and with respect to,
the termination of this Agreement pursuant to this Article VIII.  All payments made pursuant to this Section
8.5 shall be made in accordance with Article VII hereof.


ARTICLE
IX


INDEMNITY


The Company shall indemnify, reimburse, defend and hold
harmless the Manager and its Affiliates and their respective successors and
permitted assigns, together with their respective employees, officers, members,
managers, directors, agents and representatives (collectively the “Indemnified
Parties”), from and against all losses (including lost
profits), costs, damages, injuries, taxes, penalties, interests, expenses,
obligations, claims and liabilities (joint or severable) of any kind or nature
whatsoever (collectively “Losses”) that are Incurred by
such Indemnified Parties in connection with, relating to or arising out of (i)
the breach of any term or condition of this Agreement, or (ii) the performance
of any Services hereunder; provided,  however, that the Company shall not be
obligated to indemnify, reimburse, defend or hold harmless any Indemnified
Party for any Losses Incurred, by such Indemnified Party in connection with,
relating to or arising out of:


(a)           a breach by such Indemnified Party of
this Agreement;


 


10

















 


(b)           the gross negligence, willful
misconduct, bad faith or reckless disregard of such Indemnified Party in the
performance of any Services hereunder; or


(c)           fraudulent or dishonest acts of such
Indemnified Party with respect to the Company or any of its Subsidiaries.


The rights of any Indemnified Party referred to above
shall be in addition to any rights that such Indemnified Party shall otherwise
have at law or in equity.


Without the prior written consent of the Company, no
Indemnified Party shall settle, compromise or consent to the entry of any
judgment in, or otherwise seek to terminate any, claim, action, proceeding or
investigation in respect of which indemnification could be sought hereunder
unless (a) such Indemnified Party indemnifies the Company from any liabilities
arising out of such claim, action, proceeding or investigation, (b) such
settlement, compromise or consent includes an unconditional release of the
Company and Indemnified Party from all liability arising out of such claim,
action, proceeding or investigation and (c) the parties involved agree that the
terms of such settlement, compromise or consent shall remain confidential.


ARTICLE X


LIMITATION
OF LIABILITY OF THE MANAGER


Section
10.1                            Limitation
of Liability


The Manager shall not be liable for, and the Company
shall not take, or permit to be taken, any action against the Manager to hold
the Manager liable for, any error of judgment or mistake of law or for any loss
suffered by the Company or its Subsidiaries (including, without limitation, by
reason of the purchase, sale or retention of any security or assets) in
connection with the performance of the Manager’s duties under this Agreement,
except for a loss resulting from gross negligence, willful misconduct, bad
faith or reckless disregard on the part of the Manager in the performance of
its duties and obligations under this Agreement, or its fraudulent or dishonest
acts with respect to the Company or any of its Subsidiaries.


Section
10.2         Reliance of Manager


The Manager may take and may act and rely upon:


(a)           the
opinion or advice of legal counsel, which may be in-house counsel to the
Company or the Manager, any U.S.-based law firm, or other legal counsel
reasonably acceptable to the Board of Directors, in relation to the interpretation
of this Agreement or any other document (whether statutory or otherwise) or
generally in connection with the Company;


(b)           advice,
opinions, statements or information from bankers, accountants, auditors,
valuation consultants and other Persons consulted by the Manager who are in
each case believed by the Manager in good faith to be expert in relation to the
matters upon which they are consulted; and


 


11














 


(c)           any
other document provided to the Manager in connection with the Company upon
which it is reasonable for the Manager to rely.


The Manager shall not be
liable for anything done, suffered or omitted by it in good faith in reliance
upon such opinion, advice, statement, information or document.


ARTICLE
XI


LEGAL
ACTIONS


Section 11.1                            Third
Party Claims


(a)           The
Manager shall notify the Company promptly of any claim made by any third party
in relation to the assets of the Company and shall send to the Company any
notice, claim, summons or writ served on the Manager concerning the Company.


(b)           The
Manager shall not, without the prior written consent of the Board of Directors,
purport to accept or admit any claims or liabilities of which it receives
notification pursuant to Section 11.1(a) above on behalf of the Company or make
any settlement or compromise with any third party in respect of the Company.


ARTICLE
XII


MISCELLANEOUS


Section 12.1                            Obligation
of Good Faith; No Fiduciary Duties


The Manager shall perform its duties under this
Agreement in good faith and for the benefit of the Company. The relationship of
the Manager to the Company is as an independent contractor and nothing in this
Agreement shall be construed to impose on the Manager any express or implied
fiduciary duties.


Section
12.2         Binding Effect


This Agreement shall be binding upon, shall inure to
the benefit of and be enforceable by the Parties hereto and their respective
successors and permitted assigns.


Section
12.3         Compliance


(a)           The
Manager shall (and must ensure that each of its officers, agents and employees)
comply with any law, including the Federal Securities Laws and the securities
laws of any applicable jurisdiction, in each case, as in effect from time to
time, to the extent that it concerns the functions of the Manager under this
Agreement.


(b)           The
Manager shall maintain management systems, policies and internal controls and
procedures that reasonably ensure that the Manager and its employees comply
with the terms and conditions of this Agreement, as well as comply with the
internal policies, controls and procedures established by the Company from time
to time, including, without limitation, those relating to trading policies,
conflicts of interest and similar corporate governance measures.


 


12


 

















 


Section
12.4         Effect of Termination;
Survival


This Agreement shall be effective as of the date first
above written and shall continue in full force and effect thereafter until
termination hereof in accordance with Article VIII.  The obligations of the Company set forth in
Articles VII, VIII and IX and Sections 10.1, 12.5, 12.7, 12.8, 12.9, 12.17 and
12.20 hereof shall survive such termination of this Agreement, subject to
applicable law.


Section
12.5         Notices


Any notice or other communication required or
permitted under this Agreement shall be deemed to have been duly given (i) five
(5) Business Days following deposit in the mails if sent by registered or
certified mail, postage prepaid, (ii) when sent, if sent by facsimile
transmission, if receipt thereof is confirmed by telephone, (iii) when
delivered, if delivered personally to the intended recipient and (iv) two (2)
Business Days following deposit with a nationally recognized overnight courier
service, in each case addressed as follows:


If to the Company, to:


Attention:  Chief Executive Officer


[________________________________]


[ADDRESS]


[ADDRESS]


Fax:         __________________________


with a copy (which shall not constitute notice) to its
counsel:


Attention:  Christopher M. Zochowski


McDermott Will &
Emery LLP


600 Thirteenth Street,
N.W.


Washington, D.C. 20004


Fax:         202-756-8087


If to the Manager, to:


Attention:  Andrew M. Bursky


Atlas Industries
Management LLC


One Sound Shore Drive,
Suite 302


Greenwich, CT  06830


Fax:         203-622-0151


with a copy (which shall not constitute notice) to its
counsel:


 


13

















 


As to be determined by the Manager  from time to time.


or to such other address or facsimile number as any
such Party may, from time to time, designate in writing to all other Parties
hereto, and any such communication shall be deemed to be given, made or served
as of the date so delivered or, in the case of any communication delivered by
mail, as of the date so received.


Section
12.6         Headings


The headings in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.


Section
12.7         Applicable Law


This Agreement, the legal relations
between and among the Parties and the adjudication and the enforcement thereof
shall be governed by and interpreted and construed in accordance with the laws
of the State of New York, without regard to the conflicts of law provisions
thereof to the extent such principles or rules would require or permit the
application of the laws of another jurisdiction.


Section
12.8         Submission to Jurisdiction;
Waiver of Jury Trial


Subject to Section 12.20 hereof, each of the Parties
hereby irrevocably acknowledges and consents that any legal action or
proceeding brought with respect to any of the obligations arising under or
relating to this Agreement may be brought in the courts of the State of New
York, County of New York or in the United Stales District Court for the
Southern District of New York and each of the Parties hereby irrevocably
submits to and accepts with regard to any such action or proceeding, for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts. Each Party hereby further irrevocably
waives any claim that any such courts lack jurisdiction over such Party, and
agrees not to plead or claim, in any legal action or proceeding with respect to
this Agreement or the transactions contemplated hereby brought in any of the
aforesaid courts, that any such court lacks jurisdiction over such Party. Each
Party irrevocably consents to the service of process in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party, at its address for notices set forth in Section
12.5 hereof, such service to
become effective ten (10) days after such mailing.  Each Party hereby irrevocably waives any
objection to such service of process and further irrevocably waives and agrees
not to plead or claim in any action or proceeding commenced hereunder or under
any other documents contemplated hereby that service of process was in any way
invalid or ineffective. The foregoing shall not limit the rights of any Party
to serve process in any other manner permitted by applicable law.  The foregoing consents to jurisdiction shall
not constitute general consents to service of process in the State of New York
for any purpose except as provided above and shall not be deemed to confer
rights on any Person other than the respective Parties.


Each of the Parties hereby waives any right it may
have under the laws of any jurisdiction to commence by publication any legal
action or proceeding with respect this Agreement. To the fullest extent
permitted by applicable law, each of the Parties hereby irrevocably waives the
objection which it may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
of the courts referred to in this Section 13.8 and hereby further irrevocably
waives and agrees not to plead or claim that any such court is not a convenient
forum for any such suit, action or proceeding.


 


14

















 


The Parties agree that any judgment obtained by any
Party or its successors or assigns in any action, suit or proceeding referred
to above may, in the discretion of such Party (or its successors or assigns),
be enforced in any jurisdiction, to the extent permitted by applicable law.


The Parties agree that the remedy at law for any
breach of this Agreement may be inadequate and that should any dispute arise
concerning any matter hereunder, this Agreement shall be enforceable in a court
of equity by an injunction or a decree of specific performance. Such remedies
shall, however, be cumulative and nonexclusive, and shall be in addition to any
other remedies which the Parties may have.


Each Party hereby waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of any
litigation as between the Parties directly or indirectly arising out of, under
or in connection with this Agreement or the transactions contemplated hereby or
disputes relating hereto. Each Party (i) certifies that no representative,
agent or attorney of any other Party has represented, expressly or otherwise,
that such other Party would not, in the event of litigation, seek to enforce
the foregoing waiver and (ii) acknowledges that it and the other Parties have
been induced to enter into this Agreement by, among other things, the mutual
waivers and certifications in this Section 13.8.


Section
12.9         Amendment; Waivers


No term or condition of this Agreement may be amended,
modified or waived without the prior written consent of the Party against whom
such amendment, modification or waiver will be enforced.  Any waiver granted hereunder shall be deemed
a specific waiver relating only to the specific event giving rise to such waiver
and not as a general waiver of any term or condition hereof.


Section
12.10       Remedies to Prevailing Party


If any action at law or equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.


Section
12.11       Severability


Each provision of this Agreement is intended to be
severable from the others so that if, any provision or term hereof is illegal,
invalid or unenforceable for any reason whatsoever, such illegality, invalidity
or unenforceability shall not affect or impair the validity of the remaining
provisions and terms hereof; provided,  however, that the provisions governing payment
of the Management Fee described in Article VII hereof are not severable.


 


15


 

















 


Section
12.12       Benefits Only to Parties


Nothing expressed by or mentioned in this Agreement is
intended or shall be construed to give any Person, other than the Parties and
their respective successors or permitted assigns and the Indemnified Parties,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the Parties and their respective successors and permitted assigns,
and for the benefit of no other Person.


Section
12.13       Further Assurances


Each Party hereto shall take any and all such actions,
and execute and deliver such further agreements, consents, instruments and any
other documents as may be necessary from time to time to give effect to the
provisions and purposes of this Agreement.


Section
12.14       No Strict Construction


The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by all Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of
any provision of this Agreement.


Section
12.15       Entire Agreement


This Agreement constitutes the sole and entire
agreement of the Parties with regards to the subject matter of this Agreement.
Any written or oral agreements, statements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force and
effect.


Section
12.16       Assignment


This Agreement shall not be assignable by either party
except by the Manager to any Person with which the Manager may merge or
consolidate or to which the Manager transfers substantially all of its assets,
and then only in the event that such assignee assumes all of the obligations to
the Company and the Subsidiaries of the Company hereunder.


Section
12.17       Confidentiality


(a)           The
Manager shall not, and the Manager shall cause its Affiliates and their
respective agents and representatives not to, at any time from and after the
date of this Agreement, directly or indirectly, disclose or use any
confidential or proprietary information, including Company Information,
involving or relating to (x) the Company, including any information contained
in the books and records of the Company and (y) the Subsidiaries of the
Company, including any information contained in the books and records of any
such Subsidiaries; provided,  however, that disclosure and use of any
information shall be permitted (i) with the prior written consent of the
Company, (ii) as, and to the extent, expressly permitted by this Agreement or
any other agreement between the Manager and the Company or any of the Company’s
Subsidiaries (but only to the extent that such information relates to such 


 


16

















 


Subsidiaries), (iii) as, and solely to the extent,
necessary or required for the performance by the Manager, any of its Affiliates
or its delegates, of any of their respective obligations under this Agreement,
(iv) as, and to the extent, necessary or required in the operation of the
Company’s business or operations in the Ordinary Course of Business, (v) to the
extent such information is generally available to, or known by, the public or
otherwise has entered the public domain (other than as a result of disclosure
in violation of this Section 12.17 by the Manager or any of its Affiliates),
(vi) as, and to the extent, necessary or required by any governmental
order, applicable law or any governmental authority, subject to Section
12.17(d), and (vii) as, and to the extent, necessary or required or reasonably
appropriate in connection with the enforcement of any right or remedy relating
to this Agreement or any other agreement between the Manager and the Company or
any of the Company’s Subsidiaries.


(b)           The
Manager shall produce and implement policies and procedures that are reasonably
designed to ensure compliance by the Manager’s directors, officers, employees,
agents and representatives with the requirements of this Section 12.17.


(c)           For
the avoidance of doubt, confidential information includes business plans,
financial information, operational information, strategic information, legal
strategies or legal analysis, formulas, production processes, lists, names,
research, marketing, sales information and any other information similar to any
of the foregoing or serving a purpose similar to any of the foregoing with
respect to the business or operations of the Company or any of its
Subsidiaries.  However, the Parties are
not required to mark or otherwise designate information as “confidential or proprietary information,”  “confidential” or “proprietary” in order to receive the benefits of this
Section 12.17.


(d)           In
the event that the Manager is required by governmental order, applicable law or
any governmental authority to disclose any confidential information of the
Company or any of its Subsidiaries that is subject to the restrictions of this
Section 12.17, the Manager shall (i) notify the Company or any of its
Subsidiaries in writing as soon as possible, unless it is otherwise
affirmatively prohibited by such governmental order, applicable law or such
governmental authority from notifying the Company or any such Subsidiaries, as
the case may be, (ii) cooperate with the Company or any such Subsidiaries to
preserve the confidentiality of such confidential information consistent with
the requirements of such governmental order, applicable law or such
governmental authority and (iii) use its reasonable best efforts to limit any such
disclosure to the minimum disclosure necessary or required to comply with such
governmental order, applicable law or such governmental authority, in each
case, at the cost and expense of the Company.


(e)           Nothing
in this Section 12.17 shall prohibit the Manager from keeping or maintaining
any copies of any records, documents or other information that may contain
information that is otherwise subject to the requirements of this Section
12.17, subject to its compliance with this Section 12.17.


(f)            The
Manager shall be responsible for any breach or violation of the requirements of
this Section 12.17 by any of its agents or representatives.


 


17


 

















 


Section
12.18       Counterparts


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


Section
12.19       Designation


This Agreement is an “Offsetting Management Services
Agreement” as such term is defined and used pursuant to the Parent MSA, and the
Management Fee is an “Offsetting Management Fee” as such term is defined and
used pursuant to the Parent MSA.


Section
12.20       Dispute Resolution


All disputes arising out of this Agreement or relating
to the performance of either Party of its obligations hereunder, which disputes
the Parties are unable to resolve directly between themselves, shall be settled
by arbitration in New York, New York (unless the Company and the Manager agree
upon another location) before three arbitrators in accordance with the rules
then in effect of the American Arbitration Association.


*              *              *


 


18

















 


IN
WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first set forth above.


	
  

  	
   

  	
  ATLAS INDUSTRIES MANAGEMENT LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  	
  Andrew M. Bursky

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


19














 


EXHIBIT B


Form of
Transaction Services Agreement


 





















 


FORM OF


TRANSACTION
SERVICES AGREEMENT


BY AND BETWEEN


________________________________________


AND


ATLAS INDUSTRIES
MANAGEMENT LLC


 


Dated as of
__________, 20__


 


















 


TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE
  I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  ARTICLE
  II

  	
   

  	
  TRANSACTION
  SERVICES

  	
   

  	
  3

  
	
  ARTICLE
  III

  	
   

  	
  OBLIGATIONS
  OF THE COMPANY

  	
   

  	
  3

  
	
  ARTICLE
  IV

  	
   

  	
  POWERS
  OF AIM

  	
   

  	
  4

  
	
  Section 4.1

  	
   

  	
  Powers
  of AIM

  	
   

  	
  4

  
	
  Section 4.2

  	
   

  	
  Delegation

  	
   

  	
  4

  
	
  Section 4.3

  	
   

  	
  AIM’s
  Obligations, Duties and Powers Exclusive

  	
   

  	
  4

  
	
  ARTICLE
  V

  	
   

  	
  TRANSACTION
  FEE; EXPENSES

  	
   

  	
  5

  
	
  Section 5.1

  	
   

  	
  Transaction
  Fee

  	
   

  	
  5

  
	
  Section 5.2

  	
   

  	
  Reimbursement
  of Expenses

  	
   

  	
  5

  
	
  ARTICLE
  VI

  	
   

  	
  TERMINATION

  	
   

  	
  5

  
	
  ARTICLE
  VII

  	
   

  	
  INDEMNITY

  	
   

  	
  5

  
	
  ARTICLE
  VIII

  	
   

  	
  LIMITATION
  OF LIABILITY OF AIM

  	
   

  	
  6

  
	
  Section 8.1

  	
   

  	
  Limitation
  of Liability

  	
   

  	
  6

  
	
  Section 8.2

  	
   

  	
  Reliance
  of AIM

  	
   

  	
  6

  
	
  ARTICLE
  IX

  	
   

  	
  LEGAL
  ACTIONS

  	
   

  	
  7

  
	
  ARTICLE
  X

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  7

  
	
  Section 10.1

  	
   

  	
  Obligation
  of Good Faith; No Fiduciary Duties

  	
   

  	
  7

  
	
  Section 10.2

  	
   

  	
  Binding
  Effect

  	
   

  	
  7

  
	
  Section 10.3

  	
   

  	
  Compliance

  	
   

  	
  7

  
	
  Section 10.4

  	
   

  	
  Effect
  of Termination; Survival

  	
   

  	
  7

  
	
  Section 10.5

  	
   

  	
  Notices

  	
   

  	
  8

  
	
  Section 10.6

  	
   

  	
  Headings

  	
   

  	
  8

  
	
  Section 10.7

  	
   

  	
  Applicable
  Law

  	
   

  	
  9

  
	
  Section 10.8

  	
   

  	
  Submission
  to Jurisdiction; Waiver of Jury Trial

  	
   

  	
  9

  
	
  Section 10.9

  	
   

  	
  Amendment;
  Waivers

  	
   

  	
  10

  
	
  Section 10.10

  	
   

  	
  Remedies
  to Prevailing Party

  	
   

  	
  10

  
	
  Section 10.11

  	
   

  	
  Severability

  	
   

  	
  10

  
	
  Section 10.12

  	
   

  	
  Benefits
  Only to Parties

  	
   

  	
  10

  



 


 


i

















 


 


 


TABLE OF CONTENTS


(continued)


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  Section 10.13

  	
   

  	
  Further
  Assurances

  	
   

  	
  10

  
	
  Section 10.14

  	
   

  	
  No
  Strict Construction

  	
   

  	
  11

  
	
  Section 10.15

  	
   

  	
  Entire
  Agreement

  	
   

  	
  11

  
	
  Section 10.16

  	
   

  	
  Assignment

  	
   

  	
  11

  
	
  Section 10.17

  	
   

  	
  Confidentiality

  	
   

  	
  11

  
	
  Section 10.18

  	
   

  	
  Counterparts

  	
   

  	
  12

  
	
  Section 10.19

  	
   

  	
  Designation

  	
   

  	
  12

  
	
  Section 10.20

  	
   

  	
  Dispute
  Resolution

  	
   

  	
  12

  



 


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TRANSACTION SERVICES AGREEMENT
(as amended, revised, supplemented or otherwise modified from time to time,
this “Agreement”),
dated as of _________, 20__, by and between ______________________, a
_____________ (the “Company”), and Atlas Industries Management LLC, a Delaware
limited liability company (“AIM”).  Each party hereto shall be referred to as,
individually, a “Party”
and, collectively, the “Parties”.


WHEREAS, the Board
of Directors has determined that it would be in the best interests of the
Company to appoint AIM to perform the Services (as such term is defined herein)
and, therefore, the Company has agreed to appoint AIM to perform the Services
on the terms and subject to the conditions set forth herein;


WHEREAS, AIM has
agreed to perform the Services on the terms and subject to the conditions set
forth herein; and


WHEREAS, this
Agreement is a “Transaction Services Agreement” as defined and used in the
Management Services Agreement by and between AIM and Atlas Industries Holdings
LLC, dated as of ___________, 2007 (the “MSA”).


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


ARTICLE I



DEFINITIONS


Section
1.1            Definitions


For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:


(i)            the
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;


(ii)           any
reference to an “Article,” “Section” or an “Exhibit” refers to an Article,
Section or an Exhibit, as the case may be, of this Agreement; and


(iii)          the
words “herein,” “hereinafter,” “hereof,” “hereto” and “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision:


“Affiliate”
means, with respect to any Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such Person or (ii) any
officer, director, general member, member or trustee of such Person. For
purposes of this definition, the terms “controlling,” “controlled by”
or “under common control with” shall mean, with respect to any
Persons, the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, or the power to elect
at least 50% of the directors, managers, general members, or Persons exercising
similar authority with respect to such Person.


 


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“AIM”
has the meaning set forth in the preamble of this Agreement.


 “Agreement”
has the meaning set forth in the preamble of this Agreement.


“Board
of Directors” means the Board of Directors of the
Company or any committee thereof that has been duly authorized by the Board of
Directors to make a decision on the matter in question or bind the Company as
to the matter in question.


“Business
Day” means any day other than a Saturday, a Sunday
or a day on which banks in The City of New York are required, permitted or authorized,
by applicable law or executive order, to be closed for regular banking
business.


“Company”
has the meaning set forth in the preamble of this Agreement.


“Company
Information” means any information concerning the
Company or any of the Subsidiaries of the Company and their respective
financial condition, business or operations that (i) relates to earnings, (ii)
is competitively sensitive, (iii) relates to trade secrets, (iv) is proprietary
or (v) is similar to any of the foregoing information.


“Exchange
Act” means the Securities Exchange Act of
1934, as amended.


“Federal
Securities Laws” means, collectively, the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder.


“Incur” means, with
respect to any obligation of a Person, to create, issue, acquire (by
conversion, exchange or otherwise), assume, suffer, guarantee or otherwise
become liable in respect of such obligation.


“Indemnified
Parties” has the meaning set forth in Article VII
hereof.


“Losses”
has the meaning set forth in Article VII hereof.


“MSA”
has the meaning set forth in the recitals of this Agreement.


“Ordinary Course of Business”
means, with respect to any Person, an action taken by such Person if such
action is (i) consistent with the past practices of such Person and is taken in
the normal day-to-day business or operations of such Person and (ii) which is
not required to be specifically authorized or approved by the board of
directors of such Person.


“Party” and “Parties” have the meaning set forth in the preamble
of this Agreement.


“Person”
means any individual, company (whether general or limited), limited liability
company, corporation, trust, estate, association, nominee or other entity.


“Securities
Act” means the Securities Act of 1933, as
amended.


 


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“Services”
has the meaning set forth in Article II hereof.


“Subsidiary”
means, with respect to any Person, any corporation, company, joint venture,
limited liability company, association or other entity in which such Person
owns, directly or indirectly, more than 50% of the outstanding voting equity
securities or interests, the holders of which are generally entitled to vote
for the election of the board of directors or other governing body of such
entity.


“Transaction”
has the meaning set forth in Article II hereof.


“Transaction Fee”
means [THE TRANSACTION FEE IN EFFECT FROM TIME TO TIME,
AS SET FORTH IN SCHEDULE 1 TO THE MSA].


ARTICLE
II


TRANSACTION
SERVICES


In connection with the proposed transaction relating to
[DESCRIBE TRANSACTION] (the “Transaction”), AIM agrees to
provide certain services to the Company, including, but not limited to,
investment banking services, reviewing, evaluating and otherwise familiarizing
itself and its Affiliates with the business, operations, properties, financial
condition and prospects of the Company, performing due diligence with respect
to the Company and its Subsidiaries and preparing documentation describing the
Company’s operations, management, historical financial results, projected
financial results and any other relevant matters and presenting such
documentation and making recommendations with respect thereto to certain of
Manager’s affiliates (collectively, the “Services”).


ARTICLE
III


OBLIGATIONS
OF THE COMPANY


The Company shall, and the Company shall cause its
Subsidiaries to, do all things reasonably necessary on their part as requested
by AIM consistent with the terms of this Agreement to enable the Company to
fulfill its obligations under this Agreement. 
The Company shall, and the Company shall cause its Subsidiaries to, take
reasonable steps to ensure that:


(i)            the officers and employees of the
Company and its Subsidiaries, as the case may be, act in accordance with the
terms of this Agreement and the reasonable directions of AIM in fulfilling AIM’s
obligations hereunder and allowing AIM to exercise its powers and rights
hereunder; and


(ii)           the Company and its Subsidiaries
provide to AIM all reports (including monthly management reports and all other
relevant reports) that AIM may reasonably require, on such dates as AIM may
reasonably require.


 


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ARTICLE
IV


POWERS OF
AIM


Section 4.1           Powers
of AIM


(a)           AIM
shall have no power to enter into any contract for or on behalf of the Company
or otherwise subject it to any obligation, such power to be the sole right and
obligation of the Company, acting through its Board of Directors and/or the
Company’s officers.


(b)           Subject
to Section 4.2 and for purposes other than to delegate its duties and powers to
perform the Services hereunder, AIM shall have the power to engage any agents
(including real estate agents and managing agents), valuers, contractors and
advisors (including operational, accounting, financial, tax and legal advisors)
that it deems necessary or desirable in connection with the performance of its
obligations hereunder, which costs therefor shall be subject to reimbursement
in accordance with Section 5.2 hereto.


Section
4.2            Delegation


AIM may delegate or appoint:


(a)           Any
of its Affiliates as its agent, at its own cost and expense, to perform any or
all of the Services hereunder; or


(b)           Any
Person, whether or not an Affiliate of AIM, as its agent, at its own cost and
expense, to perform those Services hereunder;


provided,  however, that, in each case, AIM shall not be
relieved of any of its obligations or duties owed to the Company hereunder as a
result of such delegation. AIM shall be permitted to share Company Information
with its appointed agents subject to appropriate, reasonable and customary
confidentiality arrangements.  For the
avoidance of doubt, any reference to AIM herein shall include its delegates or
appointees pursuant to this Section 4.2.


Section
4.3            AIM’s Obligations, Duties
and Powers Exclusive


The Company agrees that during the term of this
Agreement, the obligations, duties and powers imposed on and granted to AIM
hereunder are to be performed or held exclusively by AIM, subject to Section
4.2 hereof, and the Company shall not, either directly or indirectly, through
its employees, Board of Directors or any other Person, as the case may be,
perform any of the Services except in circumstances where it is necessary to do
so to comply with applicable law or as otherwise agreed by AIM.


 


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ARTICLE V


TRANSACTION
FEE; Expenses


Section 5.1             Transaction
Fee


In consideration and as compensation for the Services
provided by AIM hereunder to the Company, the Company shall pay to AIM, payable
upon consummation of the Transaction, the Transaction Fee.  The Transaction Fee shall be paid in U.S.
dollars by wire transfer in immediately available funds to an account or
accounts designated by AIM from time to time.


Section
5.2            Reimbursement of Expenses


The Company shall reimburse AIM for all costs and
expenses of the Company, including all out-of-pocket costs and expenses, that
are actually Incurred by AIM or its Affiliates on behalf of the Company in
connection with performing Services hereunder, and all costs and expenses the reimbursement
of which is specifically approved by the Board of Directors.  Any such reimbursement shall be made upon
demand by AIM in U.S. dollars by wire transfer in immediately available funds
to an account or accounts designated by AIM from time to time.


ARTICLE
VI


TERMINATION


Subject to Section 10.4, prior to the satisfaction, in
full, by each Party of its respective obligation hereunder, this Agreement may
only be terminated by the mutual agreement of the Parties hereto.


ARTICLE
VII


INDEMNITY


The Company shall indemnify, reimburse, defend and
hold harmless AIM and its Affiliates and their respective successors and
permitted assigns, together with their respective employees, officers, members,
managers, directors, agents and representatives (collectively the “Indemnified
Parties”), from and against all losses (including lost
profits), costs, damages, injuries, taxes, penalties, interests, expenses,
obligations, claims and liabilities (joint or severable) of any kind or nature
whatsoever (collectively “Losses”) that are Incurred by
such Indemnified Parties in connection with, relating to or arising out of (i)
the breach of any term or condition of this Agreement, or (ii) the performance
of any Services hereunder; provided,  however, that the Company shall not be
obligated to indemnify, reimburse, defend or hold harmless any Indemnified
Party for any Losses Incurred, by such Indemnified Party in connection with,
relating to or arising out of:


(a)           a breach by such Indemnified Party of
this Agreement;


(b)           the gross negligence, willful
misconduct, bad faith or reckless disregard of such Indemnified Party in the
performance of any Services hereunder; or


 


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(c)           fraudulent or dishonest acts of such
Indemnified Party with respect to the Company or any of its Subsidiaries.


The rights of any Indemnified Party referred to above
shall be in addition to any rights that such Indemnified Party shall otherwise
have at law or in equity.


Without the prior written consent of the Company, no
Indemnified Party shall settle, compromise or consent to the entry of any
judgment in, or otherwise seek to terminate any, claim, action, proceeding or
investigation in respect of which indemnification could be sought hereunder
unless (a) such Indemnified Party indemnifies the Company from any liabilities
arising out of such claim, action, proceeding or investigation, (b) such
settlement, compromise or consent includes an unconditional release of the
Company and Indemnified Party from all liability arising out of such claim,
action, proceeding or investigation and (c) the parties involved agree that the
terms of such settlement, compromise or consent shall remain confidential.


ARTICLE
VIII


LIMITATION
OF LIABILITY OF AIM


Section 8.1             Limitation
of Liability


AIM shall not be liable for, and the Company shall not
take, or permit to be taken, any action against AIM to hold AIM liable for, any
error of judgment or mistake of law or for any loss suffered by the Company or
its Subsidiaries (including, without limitation, by reason of the purchase,
sale or retention of any security or assets) in connection with the performance
of AIM’s duties under this Agreement, except for a loss resulting from gross
negligence, willful misconduct, bad faith or reckless disregard on the part of
AIM in the performance of its duties and obligations under this Agreement, or
its fraudulent or dishonest acts with respect to the Company or any of its
Subsidiaries.


Section
8.2            Reliance of AIM


AIM may take and may act and rely upon:


(a)           the
opinion or advice of legal counsel, which may be in-house counsel to the
Company or AIM, any U.S.-based law firm, or other legal counsel reasonably
acceptable to the Board of Directors, in relation to the interpretation of this
Agreement or any other document (whether statutory or otherwise) or generally
in connection with the Company;


(b)           advice,
opinions, statements or information from bankers, accountants, auditors,
valuation consultants and other Persons consulted by AIM who are in each case
believed by AIM in good faith to be expert in relation to the matters upon
which they are consulted; and


(c)           any
other document provided to AIM in connection with the Company upon which it is
reasonable for AIM to rely.


AIM shall not be liable
for anything done, suffered or omitted by it in good faith in reliance upon
such opinion, advice, statement, information or document.


 


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ARTICLE
IX


LEGAL
ACTIONS


AIM shall notify the Company promptly of any claim
made by any third party in relation to the assets of the Company and shall send
to the Company any notice, claim, summons or writ served on AIM concerning the
Company.  AIM shall not, without the
prior written consent of the Board of Directors, purport to accept or admit any
claims or liabilities of which it receives notification pursuant to Article VII
above on behalf of the Company or make any settlement or compromise with any
third party in respect of the Company.


ARTICLE X


MISCELLANEOUS


Section 10.1           Obligation
of Good Faith; No Fiduciary Duties


AIM shall perform its duties under this Agreement in
good faith and for the benefit of the Company. The relationship of AIM to the
Company is as an independent contractor and nothing in this Agreement shall be
construed to impose on AIM an express or implied fiduciary duty.


Section
10.2         Binding Effect


This Agreement shall be binding upon, shall inure to
the benefit of and be enforceable by the Parties hereto and their respective
successors and permitted assigns.


Section
10.3         Compliance


(a)           AIM
shall (and must ensure that each of its officers, agents and employees) comply
with any law, including the Federal Securities Laws and the securities laws of
any applicable jurisdiction, in each case, as in effect from time to time, to the
extent that it concerns the functions of AIM under this Agreement.


(b)           AIM
shall maintain management systems, policies and internal controls and
procedures that reasonably ensure that AIM and its employees comply with the
terms and conditions of this Agreement, as well as comply with the internal
policies, controls and procedures established by the Company from time to time,
including, without limitation, those relating to trading policies, conflicts of
interest and similar corporate governance measures.


Section
10.4         Effect of Termination;
Survival


This Agreement shall be effective as of the date first
above written and shall continue in full force and effect thereafter until
termination hereof in accordance with Article VI.  The obligations of the Company set forth in
Articles VII, VIII and IX and Sections 10.1, 10.5, 10.7, 10.8, 10.9, 10.17 and
10.20 hereof shall survive such termination of this Agreement, subject to
applicable law.


 


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Section
10.5         Notices


Any notice or other communication required or
permitted under this Agreement shall be deemed to have been duly given (i) five
(5) Business Days following deposit in the mails if sent by registered or
certified mail, postage prepaid, (ii) when sent, if sent by facsimile
transmission, if receipt thereof is confirmed by telephone, (iii) when
delivered, if delivered personally to the intended recipient and (iv) two (2)
Business Days following deposit with a nationally recognized overnight courier
service, in each case addressed as follows:


If to the Company, to:


Attention:  Chief Executive Officer


[________________________________]


[ADDRESS]


[ADDRESS]


Fax:         __________________________


with a copy (which shall not constitute notice) to its
counsel:


Attention:  Christopher M. Zochowski


McDermott Will &
Emery LLP


600 Thirteenth Street,
N.W.


Washington, D.C. 20004


Fax:         202-756-8087


If to AIM, to:


Attention:  Andrew M. Bursky


Atlas Industries
Management LLC


One Sound Shore Drive,
Suite 302


Greenwich, CT  06830


Fax:         203-622-0151


with a copy (which shall not constitute notice) to its
counsel:


As to be determined by AIM  from time to time.


or to such other address or facsimile number as any
such Party may, from time to time, designate in writing to all other Parties
hereto, and any such communication shall be deemed to be given, made or served
as of the date so delivered or, in the case of any communication delivered by
mail, as of the date so received.


Section
10.6         Headings


The headings in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.


 


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Section
10.7         Applicable Law


This Agreement, the legal relations
between and among the Parties and the adjudication and the enforcement thereof
shall be governed by and interpreted and construed in accordance with the laws
of the State of New York, without regard to the conflicts of law provisions
thereof to the extent such principles or rules would require or permit the
application of the laws of another jurisdiction.


Section
10.8         Submission to Jurisdiction;
Waiver of Jury Trial


Subject to Section 10.20 hereof, each of the Parties
hereby irrevocably acknowledges and consents that any legal action or
proceeding brought with respect to any of the obligations arising under or
relating to this Agreement may be brought in the courts of the State of New
York, County of New York or in the United Stales District Court for the Southern
District of New York and each of the Parties hereby irrevocably submits to and
accepts with regard to any such action or proceeding, for itself and in respect
of its property, generally and unconditionally, the non-exclusive jurisdiction
of the aforesaid courts. Each Party hereby further irrevocably waives any claim
that any such courts lack jurisdiction over such Party, and agrees not to plead
or claim, in any legal action or proceeding with respect to this Agreement or
the transactions contemplated hereby brought in any of the aforesaid courts,
that any such court lacks jurisdiction over such Party. Each Party irrevocably
consents to the service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party, at its address for notices set forth in Section 10.5 hereof, such service to become effective ten
(10) days after such mailing.  Each Party
hereby irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other documents contemplated hereby that
service of process was in any way invalid or ineffective. The foregoing shall
not limit the rights of any Party to serve process in any other manner
permitted by applicable law.  The
foregoing consents to jurisdiction shall not constitute general consents to
service of process in the State of New York for any purpose except as provided
above and shall not be deemed to confer rights on any Person other than the
respective Parties.


Each of the Parties hereby waives any right it may
have under the laws of any jurisdiction to commence by publication any legal
action or proceeding with respect this Agreement. To the fullest extent
permitted by applicable law, each of the Parties hereby irrevocably waives the
objection which it may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
of the courts referred to in this Section 13.8 and hereby further irrevocably
waives and agrees not to plead or claim that any such court is not a convenient
forum for any such suit, action or proceeding.


The Parties agree that any judgment obtained by any
Party or its successors or assigns in any action, suit or proceeding referred
to above may, in the discretion of such Party (or its successors or assigns),
be enforced in any jurisdiction, to the extent permitted by applicable law.


The Parties agree that the remedy at law for any
breach of this Agreement may be inadequate and that should any dispute arise
concerning any matter hereunder, this Agreement shall be enforceable in a court
of equity by an injunction or a decree of specific performance. Such remedies
shall, however, be cumulative and nonexclusive, and shall be in addition to any
other remedies which the Parties may have.


 


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Each Party hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation as between the Parties directly or indirectly arising
out of, under or in connection with this Agreement or the transactions
contemplated hereby or disputes relating hereto. Each Party (i) certifies that
no representative, agent or attorney of any other Party has represented,
expressly or otherwise, that such other Party would not, in the event of
litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it
and the other Parties have been induced to enter into this Agreement by, among
other things, the mutual waivers and certifications in this Section 10.8.


Section
10.9         Amendment; Waivers


No term or condition of this Agreement may be amended,
modified or waived without the prior written consent of the Party against whom
such amendment, modification or waiver will be enforced.  Any waiver granted hereunder shall be deemed
a specific waiver relating only to the specific event giving rise to such
waiver and not as a general waiver of any term or condition hereof.


Section
10.10       Remedies to Prevailing Party


If any action at law or equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.


Section
10.11       Severability


Each provision of this Agreement is intended to be
severable from the others so that if, any provision or term hereof is illegal,
invalid or unenforceable for any reason whatsoever, such illegality, invalidity
or unenforceability shall not affect or impair the validity of the remaining
provisions and terms hereof; provided,  however, that the provisions governing payment
of the Management Fee described in Article V hereof are not severable.


Section
10.12       Benefits Only to Parties


Nothing expressed by or mentioned in this Agreement is
intended or shall be construed to give any Person other, than the Parties and
their respective successors or permitted assigns and the Indemnified Parties,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the Parties and their respective successors and permitted assigns,
and for the benefit of no other Person.


Section
10.13       Further Assurances


Each Party hereto shall take any and all such actions,
and execute and deliver such further agreements, consents, instruments and any
other documents as may be necessary from time to time to give effect to the
provisions and purposes of this Agreement.


 


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Section
10.14       No Strict Construction


The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by all Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of
any provision of this Agreement.


Section
10.15       Entire Agreement


This Agreement constitutes the sole and entire
agreement of the Parties with regards to the subject matter of this Agreement.
Any written or oral agreements, statements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force and
effect.


Section
10.16       Assignment


This Agreement shall not be assignable by either party
except by AIM to any Person with which AIM may merge or consolidate or to which
AIM transfers substantially all of its assets, and then only in the event that
such assignee assumes all of the obligations to the Company and the Subsidiaries
of the Company hereunder.


Section
10.17       Confidentiality


(a)           AIM
shall not, and AIM shall cause its Affiliates and their respective agents and
representatives not to, at any time from and after the date of this Agreement,
directly or indirectly, disclose or use any confidential or proprietary
information, including Company Information, involving or relating to (x) the
Company, including any information contained in the books and records of the
Company and (y) the Subsidiaries of the Company, including any information
contained in the books and records of any such Subsidiaries; provided,  however,
that disclosure and use of any information shall be permitted (i) with the
prior written consent of the Company, (ii) as, and to the extent, expressly
permitted by this Agreement or any other agreement between AIM and the Company
or any of the Company’s Subsidiaries (but only to the extent that such
information relates to such Subsidiaries), (iii) as, and solely to the extent,
necessary or required for the performance by AIM, any of its Affiliates or its
delegates, of any of their respective obligations under this Agreement, (iv)
as, and to the extent, necessary or required in the operation of the Company’s
business or operations in the Ordinary Course of Business, (v) to the extent
such information is generally available to, or known by, the public or
otherwise has entered the public domain (other than as a result of disclosure
in violation of this Section 10.17 by AIM or any of its Affiliates),
(vi) as, and to the extent, necessary or required by any governmental
order, applicable law or any governmental authority, subject to Section
10.17(d), and (vii) as, and to the extent, necessary or required or reasonably
appropriate in connection with the enforcement of any right or remedy relating
to this Agreement or any other agreement between AIM and the Company or any of
the Company’s Subsidiaries.


(b)           AIM
shall produce and implement policies and procedures that are reasonably
designed to ensure compliance by AIM’s directors, officers, employees, agents
and representatives with the requirements of this Section 10.17.


 


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(c)           For
the avoidance of doubt, confidential information includes business plans,
financial information, operational information, strategic information, legal
strategies or legal analysis, formulas, production processes, lists, names,
research, marketing, sales information and any other information similar to any
of the foregoing or serving a purpose similar to any of the foregoing with
respect to the business or operations of the Company or any of its
Subsidiaries.  However, the Parties are
not required to mark or otherwise designate information as “confidential or proprietary
information,” “confidential” or “proprietary” in order to receive the benefits of
this Section 10.17.


(d)           In
the event that AIM is required by governmental order, applicable law or any
governmental authority to disclose any confidential information of the Company
or any of its Subsidiaries that is subject to the restrictions of this Section
10.17, AIM shall (i) notify the Company or any of its Subsidiaries in writing
as soon as possible, unless it is otherwise affirmatively prohibited by such
governmental order, applicable law or such governmental authority from
notifying the Company or any such Subsidiaries, as the case may be, (ii)
cooperate with the Company or any such Subsidiaries to preserve the
confidentiality of such confidential information consistent with the
requirements of such governmental order, applicable law or such governmental
authority and (iii) use its reasonable best efforts to limit any such
disclosure to the minimum disclosure necessary or required to comply with such
governmental order, applicable law or such governmental authority, in each
case, at the cost and expense of the Company.


(e)           Nothing
in this Section 10.17 shall prohibit AIM from keeping or maintaining any copies
of any records, documents or other information that may contain information
that is otherwise subject to the requirements of this Section 10.17, subject to
its compliance with this Section 10.17.


(f)            AIM
shall be responsible for any breach or violation of the requirements of this
Section 10.17 by any of its agents or representatives.


Section
10.18       Counterparts


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


Section
10.19       Designation


This Agreement is a “Transaction Services Agreement”
as such term is defined and used pursuant to the MSA, and the Transaction Fee
is a “Transaction Fee” as such term is defined and used pursuant to the MSA.


Section
10.20       Dispute Resolution


All disputes arising out of this Agreement or relating
to the performance of either Party of its obligations hereunder, which disputes
the Parties are unable to resolve directly between themselves, shall be settled
by arbitration in New York, New York (unless AIM and the Company agree upon
another location) before three arbitrators in accordance with the rules then in
effect of the American Arbitration Association.


*              *              *


 


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IN
WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first set forth above.


	
  

  	
   

  	
  ATLAS INDUSTRIES MANAGEMENT LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
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  Andrew M. Bursky

  
	
   

  	
   

  	
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  Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
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