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Vision-Ease Lens CORP
·
S-1
Oct 12, 9:32 PM ET
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Vision-Ease Lens, Inc. S-1
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Contents
32
1. Definitions
2. Engagement
3. Term
4. Provision of Management and Related Services
(a) Management Services. The Managing Agent shall provide management services to the Partnership, which shall include (i) supporting Senior Management in the operations of the Partnership, (ii) assisting in the analysis, tracking and preparation of monthly business and financial management and reporting tools for the Partnership and (iii) recommending members of Senior Management to the Board of Managers of the General Partner.
(b) Related Services. The Managing Agent shall provide such services as are reasonably necessary or appropriate in relation to the management services it shall provide pursuant to Section 4(a) hereof, including, without limitation, making arrangements and handling communications with accountants, attorneys, brokers, banks and other Persons.
(c) Limitation on Services. Except as otherwise provided in the Partnership Agreement, the Managing Agent shall in no event have the power to, and shall not, perform for
or on behalf of the Partnership any act required to be taken by the General Partner under the Partnership Agreement.
5. Independent Contractor
6. Costs and Expenses
(a) Expenses of the Partnership. The Partnership shall pay or shall reimburse the Managing Agent for all reasonable expenses paid or incurred on behalf of the Partnership including, without limitation, all fees and expenses incurred in connection with causing the performance of any legal, tax advisory, tax compliance, consulting, bookkeeping and audit services for the Partnership, all insurance and indemnification expenses as set forth in Section 8 hereof, and all travel, business development and other expenses reasonably related to the business of the Partnership or its subsidiaries; provided, however, that the Managing Agent shall not be entitled to reimbursement for third-party expenses to the extent such expenses relate to services which either the General Partner or the Managing Agent is required or reasonably expected to provide under this Agreement or the Partnership Agreement, as applicable, to the Partnership using internal resources.
(b) Expenses of the Managing Agent. The Managing Agent shall pay all of its own ordinary administrative and overhead expenses, including office space, office supplies and equipment and compensation and employee benefits for its employees.
7. Management Fee
8. Exculpation; Indemnification
(a) Unless otherwise required by law, none of the Managing Agent or any Insight Representatives, nor any entity controlled by them, nor any officer, director, stockholder, partner, principal, member or employee of any of the foregoing (including any former officer, director, stockholder, partner, principal, member or employee) (each such entity or person referred to herein as a “Covered Person”) shall have any liability to the Partnership or to any Partner for any loss suffered by the Partnership or any Partner which arises out of any act or omission or alleged act or omission of the Covered Person lithe Covered Person acted in good faith and if such course of conduct did not constitute willful malfeasance, gross negligence or reckless conduct of, or a knowing violation of the Law by, the Covered Person. Each Covered Person shall be indemnified by the Partnership against any losses, judgments, liabilities, claims, damages, costs, expenses (including reasonable legal fees and other expenses actually incurred in investigation or defending against any such losses, judgments, liabilities or claims and expenses
actually incurred enforcing this Agreement) and amounts paid in settlement of any claim (approved in advance and in good faith by the General Partner, which approval shall not be unreasonably withheld, conditioned or delayed) sustained by any of them by reason of any act or omission or alleged act or omission in connection with the activities of the Partnership (including any subsidiaries thereof) unless there is a final judicial determination by a court of competent jurisdiction to which all rights of appeal have been exhausted or expired that the same were the result of willful malfeasance, gross negligence or reckless conduct on the part of, or a knowing violation of the Law by, the Covered Person. The Covered Person may rely in good faith upon the advice of legal counsel. The foregoing indemnification obligation, including the exceptions thereto, shall also apply to any act or omission and alleged act or omission by a Covered Person who is or was an officer or director or who is or was in any other position of the General Partner, partnership or any subsidiary thereof at the request of the Partnership of the Managing Agent. The Covered Person shall use reasonable efforts to obtain indemnification from all other reasonably available sources before seeking indemnification from the Partnership.
(b) To the extent available on commercially reasonable terms, the Managing Agent may purchase, at the Partnership’s expense, insurance (including without limitation, liability insurance policies and errors and omissions policies) to cover any liabilities covered by this Section 8 in such amount and with such deductibles as the Managing Agent may determine in its reasonable discretion; provided, however, that the failure to obtain such insurance shall not affect the right to indemnification of any Covered Person. Any such insurance may extend beyond the termination of the Partnership for a commercially reasonable period. The Partnership shall be subrogated to the Covered Person’s rights under such indemnification or insurance. If any Covered Person recovers any amounts in respect of any such liabilities from insurance coverage or any third party source, then such Covered Person shall, to the extent that such recovery is duplicative, reimburse the Partnership for any amounts previously paid to it by the Partnership in respect of such liabilities. The Partnership shall not incur the cost of that portion of any insurance, other than public liability insurance, which insures any party against any liability the indemnification of which is herein prohibited.
(c) The right of indemnification hereby provided shall not be exclusive of, and shall not affect any other rights to which any Covered Person may be entitled. Nothing contained in this Section 8 shall limit any lawful rights to indemnification existing independently of this Section 8.
(d) The indemnification rights provided by this Section 8 shall inure to the benefit of the heirs, executors, administrators, successors and assigns of each Covered Person.
(e) The provisions of this Section 8 shall continue to afford protection to each Covered Person regardless of whether such Covered Person remains in the position or capacity pursuant to which such Covered Person became entitled to indemnification under this Section 8 and regardless of any subsequent amendment to this Agreement; provided, however, that no such amendment shall reduce or restrict the extent to which the indemnification provisions of this Section 8 apply to actions taken or omissions made or alleged actions taken or omissions made prior to the date of such amendment.
(f) The provisions of this Section 8 shall survive the termination of this Agreement and the dissolution and termination of the Partnership.
9. Non-Exclusivity
10. Risk Acknowledgment
11. Termination
(a) This Agreement may be terminated at any time, without the payment of any penalty, by the Partnership for cause. As used herein, the term “cause” shall mean any action or omission by the Managing Agent which constitutes material fraud, deceit, or a wrongful taking against the Partnership or the General Partner or any intentional disclosure of the Partnership’s or the General Partner’s confidential information or trade secrets that materially banns the Partnership or the General Partner or the indictment of the Managing Agent for a felony, in each case as reasonably determined by the Board of Managers of the General Partner (other than any members of such board that are Affiliates of the Managing Agent).
(b) This Agreement may be terminated at any time, without the payment of any penalty, by the Managing Agent on thirty (30) days’ prior written notice to the Partnership.
12. Notices
13. Assignment
14. Amendment of Agreement
15. Amendment of Partnership Agreement
16. GOVERNING LAW
17. No Third Party Rights
Contents
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