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MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made and entered into
as of November 1, 1996 by and between THE YUCAIPA COMPANIES, a California
general partnership ("Yucaipa"), DOMINICK'S SUPERMARKETS, INC., a Delaware
corporation (the "Company"), and DOMINICK'S FINER FOODS, INC., a Delaware
corporation ("Dominick's").
W I T N E S S E T H:
WHEREAS, Dominick's is a wholly owned subsidiary of the Company and is in
the business of operating supermarkets;
WHEREAS, the Company and Dominick's entered into that certain Consulting
Agreement with Yucaipa dated as of March 22, 1995 (the "Consulting Agreement")
and such parties intend to terminate the Consulting Agreement concurrently with
the consummation of an initial public offering of the common stock of the
Company which shall be a "Qualified IPO" (as defined in that certain
Stockholders Agreement dated as of March 22, 1995 among the Company and the
stockholders named therein);
WHEREAS, the Company and Dominick's desire to have continued access to the
services of Yucaipa following the termination of the Consulting Agreement; and
WHEREAS, Yucaipa has the ability to provide certain general business and
financial consultation and advice and management services to the Company and
Dominick's in connection with the operation of their businesses;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of the parties hereto and other good and valuable consideration paid and
received by each of the parties to this Agreement, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. ENGAGEMENT.
The Company and Dominick's hereby engage Yucaipa as an independent
contractor and consultant to provide general business consultation and advice
and management services to the Company, Dominick's and its subsidiaries in
connection with the operation of their respective businesses.
SECTION 2. MANAGEMENT SERVICES.
Yucaipa, through its partners and/or employees, shall provide the Company
and Dominick's with consultation and advice, when and as reasonably requested
by the Company or Dominick's, in such fields as supermarket operations,
planning and development, budgeting, accounting, general business management
and such other fields as Yucaipa may offer from time to time. All partners and
employees of Yucaipa or any of its affiliates entitled to receive any fees
payable hereunder who serve the Company or Dominick's or any of their
respective subsidiaries as an officer, director or employee shall do so without
charge during the term of this Agreement, except for (a) the fees and expenses
provided for herein, (b) customary compensation and expense reimbursement
arrangements between the Company or Dominick's and Xxxxxx X. Xxxxx in his
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capacity as an officer or employee of the Company or Dominick's, (c) customary
fees (or reimbursement of expenses) payable to members of the Board of
Directors, in their capacity as such, provided that payment of such fees to
such partners or employees of Yucaipa is approved by a majority of the
disinterested members of the Board of Directors or (d) any other agreement or
arrangement approved by a majority of the disinterested members of the Board of
Directors.
SECTION 3. MANAGEMENT FEES.
Commencing on the date hereof (the "Effective Date"), Dominick's shall pay
to Yucaipa an annual management fee, in consideration of the services rendered
by Yucaipa pursuant to Section 2 above, equal to $1,000,000, payable in 13
equal installments in advance on the first day of each of Dominick's 13
four-week fiscal periods and past due on the fifteenth day of such fiscal
period; provided that such fee will be payable in advance on the Effective Date
for the partial fiscal period beginning on the Effective Date and ending on the
last day of the current fiscal period.
SECTION 4. OTHER CONSULTING SERVICES.
The Company, Dominick's and their respective subsidiaries (or any one of
them) may retain or employ Yucaipa as a financial advisor and/or consultant in
connection with any acquisition or disposition transaction by the Company,
Dominick's or any of their respective subsidiaries, other than a sale of all of
the outstanding capital stock of, or all or substantially all of the assets of,
the Company or Dominick's. The parties expressly agree that the services
contemplated by this Section 4 shall not include financial advisory or
consulting services in connection with debt or equity financings or equipment
lease arrangements. If any retention of Yucaipa by the Company, Dominick's or
any of their respective subsidiaries pursuant to this Section 4 is made
pursuant to a retention or engagement agreement containing terms varying from
or in addition to the terms contained in this Agreement, such agreement shall
be reasonably acceptable to a majority of the members of the Board of Directors
of the Company or Dominick's, as the case may be, that are neither affiliates
of Yucaipa nor designated or nominated to such Board of Directors by Yucaipa or
any of its affiliates.
SECTION 5. OTHER CONSULTING FEES.
The Company or Dominick's, as applicable, shall pay to Yucaipa a cash fee
for providing any financial advisory or consulting services pursuant to Section
4 above in connection with the acquisition or disposition transactions
specified therein (other than disposition transactions with respect to any
stores designated for divestiture or closing in the ordinary course of
business), equal to one percent (1.0%) of the amount or value of all cash and
noncash consideration actually paid or received (including assumed
indebtedness) by the Company, Dominick's or any of their respective
subsidiaries, as the case may be, in connection therewith.
SECTION 6. REIMBURSEMENT OF EXPENSES.
Dominick's shall reimburse Yucaipa for all of its reasonable out-of-pocket
costs and expenses incurred in connection with the performance of its
obligations under this Agreement. Yucaipa shall xxxx Xxxxxxxx'x for the amount
of all such expenses monthly, and shall provide Dominick's with a reasonable
itemization of such expenses. Notwithstanding the foregoing, the aggregate
amount of such costs and expenses for which Yucaipa may be reimbursed in
connection
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with the rendering of management services under Section 2 hereof
shall not exceed $300,000 in any fiscal year of Dominick's (which maximum
amount shall be prorated for the period beginning on the Effective Date and
ending on the last day of Dominick's current fiscal year). In addition to the
foregoing, Dominick's shall reimburse Yucaipa for all of its reasonable
out-of-pocket costs and expenses incurred in connection with the rendering by
Yucaipa of financial advisory or consulting services to the Company, Dominick's
and/or their respective subsidiaries, in connection with any acquisition or
disposition transaction, debt or equity financing or equipment leasing
arrangement, whether or not Yucaipa is obligated to render such services or has
a right to be paid any fee relating thereto under Sections 4 or 5 of this
Agreement.
SECTION 7. TERM OF AGREEMENT.
The term of this Agreement shall be for a period of five (5) years
commencing on the Effective Date; provided, however, that the term shall be
automatically renewed annually for a term of five (5) years on April 1 of each
year, unless at least ninety (90) days prior notice is given by either party
electing not to so renew this Agreement.
SECTION 8. TERMINATION.
8.1 TERMINATION AT WILL. Dominick's and the Company, acting jointly, may
terminate this Agreement at any time by giving Yucaipa at least ninety (90)
days written notice of such termination.
8.2 TERMINATION FOR CAUSE.
(a) Dominick's and the Company on the one hand, or Yucaipa on the other
hand, may terminate this Agreement if the other party shall fail to reasonably
perform any material covenant, agreement, term or provision of this Agreement
to be kept, observed or performed by it and such failure shall continue for a
period of sixty (60) days after written notice from the other party, which
notice shall describe the alleged failure with particularity; provided that
Yucaipa shall use its best efforts to cause Dominick's and the Company to
perform each material covenant, agreement, term and provision of this
Agreement. Notwithstanding the foregoing, any failure or alleged failure of
the Company, Dominick's, or Yucaipa to perform any material covenant,
agreement, term or provision of this Agreement shall not constitute cause for
termination of this Agreement if the same shall be occasioned by or result from
force majeure, directly or indirectly.
(b) Yucaipa may terminate this Agreement if Dominick's or the Company
shall fail to make any payment due to Yucaipa hereunder, if such payment is not
made in full within twenty (20) days after written notice of such failure;
provided that Yucaipa shall use its best efforts to cause Dominick's and the
Company to make all such payments in a timely manner.
8.3 TERMINATION FOR CHANGE OF CONTROL. This Agreement may be terminated,
at the election of Yucaipa or Dominick's, if during the term hereof there shall
have been a change in control of the Company or Dominick's, which for purposes
of this Agreement shall be deemed to have occurred upon any of the following
events: (a) the acquisition after the Effective Date, in one or more
transactions, of "beneficial ownership" (within the meaning of Rule 13d-3(a)(1)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) by
any person (other than Yucaipa or any of its partners or affiliates) or any
group of persons (excluding any group which includes Yucaipa or any of its
partners or affiliates) who constitute a group (within the meaning
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of Section 13(d)(3) of the Exchange Act) of any securities of the
Company or Dominick's such that, as a result of such acquisition, such person
or group beneficially owns (within the meaning of Rule 13d-3(a)(1) under the
Exchange Act) 51% or more of the Company or Dominick's then outstanding voting
securities entitled to vote on a regular basis for a majority of the Board of
Directors of the Company or Dominick's; (b) the sale of all or substantially
all of the assets of the Company or Dominick's (including, without limitation,
by way of merger, consolidation, lease or transfer) in a transaction where the
Company or Dominick's or the beneficial owners of common stock of the Company
or Dominick's do not receive (i) voting securities representing a majority of
the voting power entitled to vote on a regular basis for the Board of Directors
of the acquiring entity or of an affiliate which controls the acquiring entity,
or (ii) securities representing a majority of the equity interest in the
acquiring entity or of an affiliate which controls the acquiring entity, if
other than a corporation; or (c) at any time the Continuing Directors (as
defined below) do not constitute a majority of the Board of Directors of the
Company (or, if applicable, a successor corporation to the Company); provided,
however, that no change in control shall be deemed to have occurred under (a)
or (b) above upon any transfer, sale or disposition of shares of common stock
of the Company or Dominick's in any transaction between the Company or
Dominick's and any person or persons who are affiliates of the Company or
Dominick's on the date hereof. For purposes of this Section 8.3, "Continuing
Directors" shall mean, as of any date of determination, any member of the Board
of Directors who (i) was a member of the Board of Directors on the date of this
Agreement or (ii) was nominated for election or elected to the Board of
Directors with the approval of a majority of the Continuing Directors who were
members of the Board of Directors at the time of such nomination or election.
8.4 PAYMENTS UPON TERMINATION.
(a) In the event of any termination pursuant to (i) Section 8.1, (ii)
Section 8.2(a) (if Yucaipa has elected to terminate because of a material
failure of performance by Dominick's or the Company), or (iii) Section 8.2(b)
(if Yucaipa has elected to terminate because of a failure to pay by Dominick's
or the Company), Dominick's shall pay to Yucaipa an amount equal to the total
management fees that would have been earned by Yucaipa under Section 3 hereof
during the remaining term of this Agreement as if the Agreement had not been
terminated; provided that a discount rate of 10% shall be applied in valuing,
for purposes of such payment, the management fees otherwise payable during the
remaining term of this Agreement.
(b) In the event of any termination pursuant to Section 8.2(a) (if
Dominick's and the Company have elected to terminate because of a material
failure of performance by Yucaipa), Yucaipa promptly shall refund to Dominick's
a prorated portion of the management fee received by it under Section 3 for the
four-week fiscal period in which such termination occurs.
(c) In the event of any termination pursuant to Section 8.3, Dominick's
shall pay to Yucaipa an amount equal to the total management fees that would
have been earned by Yucaipa under Section 3 hereof during the period commencing
on the date of such change of control and ending on the fifth anniversary of
the Effective Date, as if the Agreement had not been terminated; provided that
(i) a discount rate of 10% shall be applied in valuing, for purposes of such
payment, the management fees otherwise payable during such period and (ii) if
such termination occurs on or after the fifth anniversary of the Effective
Date, no payment shall be due to Yucaipa as a result of such termination.
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(d) Such amount, if any, which shall be due Yucaipa pursuant to this
Section 8.4 in the event of any such termination shall be due and payable to
Yucaipa, in full, as of the date of such termination. The parties intend that
should the foregoing payments be determined to constitute liquidated damages,
such payments shall in all events be deemed reasonable.
SECTION 9. NOTICES.
9.1 MANNER OF NOTICE. All notices, statements or other documents which
any party shall be required or shall desire to give to the others hereunder
shall be in writing and shall be given by the parties hereto only as follows:
(a) by personal delivery, (b) by addressing it as indicated below, and by
depositing it certified mail, postage prepaid, in the U.S. mail, first class
(airmail if the address is outside of the country in which such notice is
deposited), or (c) by addressing it as indicated below, and by delivering it
toll prepaid to a telegraph, cable company or courier service (e.g., Federal
Express).
9.2 DELIVERY OF NOTICE; ADDRESSES. If so delivered, mailed, telegraphed,
cabled or couriered, each such notice, statement or other document shall,
except as herein expressly provided, be conclusively deemed to have been given
when personally delivered, or on the third business day after the date of
mailing, or on the date of delivery to a telegraph or cable company or on the
first business day after delivery to a courier service, as the case may be.
The addresses of the parties shall be those of which the other parties actually
receives written notice pursuant to this Section 9 and until further notice
are:
If to Yucaipa: The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
If to the Company: Dominick's Supermarkets, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President and Chief Executive Officer
If to Dominick's: Dominick's Finer Foods, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President and Chief Executive Officer
SECTION 10. MISCELLANEOUS.
10.1 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains all of the
terms and conditions agreed upon by the parties hereto in connection with the
subject matter hereof. This Agreement may not be amended, modified or changed
except by written instrument signed by all of the parties hereto.
10.2 ASSIGNMENT; SUCCESSORS. This Agreement shall not be assigned and is
not assignable by any party without the prior written consent of each of the
other parties hereto; provided, however, that Yucaipa may assign, without the
prior consent of Dominick's or the
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Company, its rights and obligations under this Agreement to any of its
affiliates controlled by Xxxxxx Xxxxxx, and provided further, that Yucaipa may
assign the right to receive any payment hereunder to any other person or
entity. Subject to the preceding sentence, this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
permitted successors and assigns.
10.3 CAPTIONS. All captions and headings are inserted for the
convenience of the parties, and shall not be used in any way to modify, limit,
construe or otherwise affect this Agreement.
10.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal domestic laws of the State of California, without
reference to the choice of law principles thereof.
10.5 ATTORNEYS' FEES. If any legal action is brought concerning any
matter relating to this Agreement, or by reason of any breach of any covenant,
condition or agreement referred to herein, the prevailing party shall be
entitled to have and recover from the other party to the action all costs and
expenses of suit, including attorneys' fees.
10.6 SEVERABILITY. If any term, provision or condition of this Agreement
is determined by a court or other judicial or administrative tribunal to be
illegal, void or otherwise ineffective or not in accordance with public policy,
the remainder of this Agreement shall not be affected thereby and shall remain
in full force and effect.
10.7 INTERPRETATION. In the event of a dispute hereunder, this Agreement
shall be interpreted in accordance with its fair meaning and shall not be
interpreted for or against any party hereto on the ground that such party
drafted or caused to be drafted this Agreement or any part hereof.
10.8 INDEMNITY. The parties to this Agreement shall indemnify and hold
one another and their respective officers, directors, employees and agents,
harmless from any and all loss, cost, liability and damage (including
attorneys' fees) arising out of or connected with, or claimed to arise out of
or be connected with, any act performed or omitted to be performed under this
Agreement, provided such act or omission was taken in good faith, and in the
event of criminal proceedings, that the indemnitee had no reasonable cause to
believe his conduct was unlawful. An adverse judgment or plea of nolo
fcontendere shall not, of itself, create a presumption that the indemnitee did
not act in good faith or that he had reasonable cause to believe his conduct
was unlawful. Expenses incurred in defending a civil or criminal action shall
be paid by the indemnitor upon receipt of an undertaking by or on behalf of the
indemnitee to repay such amount if it be later shown that such person was not
entitled to indemnification.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Management
Agreement to be duly executed as of the date first above written.
THE YUCAIPA COMPANIES
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Partner
DOMINICK'S SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
DOMINICK'S FINER FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
