EXHIBIT 10.11
MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement"), is made as of August 4,
2003, by and between Applied Graphics Technologies, Inc., a Delaware corporation
(the "Company"), and Kohlberg & Company, L.L.C., a Delaware limited liability
company ("Kohlberg").
WHEREAS, the Company desires that Kohlberg provide certain ongoing
management and advisory services to the Company, its subsidiaries and affiliates
and any other subsidiary which the Company may acquire subsequent to the date
hereof (collectively, the "Companies"), and Kohlberg is willing to provide such
services subject to the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
SECTION 1. Services. During the term of this Agreement, Kohlberg shall
provide such advisory and management services to the Companies as the board of
directors of the Company shall reasonably request and which shall include
assistance in (a) developing and implementing corporate and business strategy
and planning (including plans to improve operating, marketing and financial
performance, budgeting of future corporate investments, identifying, analyzing
and structuring strategic acquisitions and dispositions, and reorganizational
programs); (b) arranging debt and equity financings and refinancings; and (c)
establishing, maintaining and evaluating banking, legal and other business
relationships. Such services shall be performed at Kohlberg's offices in New
York and/or California.
SECTION 2. Compensation. In consideration of the services provided in
accordance with Section 1 above, the Company shall pay to Kohlberg an annual
management fee equal to $500,000 (the "Management Fee"). The Management Fee
shall accrue from the date hereof and shall be payable quarterly in advance on
the date hereof and thereafter on each January 1, April 1, July 1 and October 1.
On termination of this Agreement, any Management Fees paid by the Company for a
period that includes the date of termination shall be prorated, and Kohlberg
shall promptly reimburse the Company for any installment of Management Fees or
portion thereof relating to a period or portion thereof after the date of
termination.
SECTION 3. Reimbursement. Kohlberg and its affiliates shall be entitled
to reimbursement of all out-of-pocket expenses (including travel expenses)
incurred in the course of the performance of this Agreement (other than salary
expenses and associated overhead charges). The Company shall reimburse Kohlberg
for its expenses under this Section within thirty days of receiving a statement
therefor.
SECTION 4. Exculpation and Indemnification. None of Kohlberg, any of
its affiliates or any of its or their respective principals, officers,
directors, stockholders, agents or employees (each, an "Indemnified Party")
shall have any liability to the Companies for any services provided pursuant to
this Agreement, except as may result from such Indemnified Party's gross
negligence or willful misconduct. The Company hereby agrees to indemnify each
Indemnified Party from and against all losses, liabilities, damages,
deficiencies, demands, claims, actions, judgments or causes of action,
assessments, costs or expenses (including, without limitation, interest,
penalties and reasonable fees, expenses and disbursements of attorneys, experts,
personnel and consultants reasonably incurred by the Indemnified Party in any
action or proceeding between any of the Companies and the Indemnified Party or
between the Indemnified Party and any third party, or otherwise) based upon,
arising out of or otherwise in respect of this Agreement or Kohlberg's provision
of services hereunder.
SECTION 5. Independent Contractor Status. Kohlberg shall perform
services hereunder as an independent contractor, retaining control over and
responsibility for its own operations and personnel. Neither Kohlberg, nor any
of its employees or agents shall, by virtue of this Agreement or the
arrangements hereunder, be an employee, member or agent of any of the Companies
nor shall any of them have authority to contract in the name of any of the
Companies, except (a) to the extent that any Kohlberg employee or agent is
acting in his or her capacity as a manager or officer of the Company, or (b) as
expressly agreed to in writing by any of the Companies. Any duties of Kohlberg
arising out of its engagement to perform services hereunder shall be owed solely
to the Companies.
SECTION 6. Notice. Any notice or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission (provided the sender receives a transmission receipt)
or sent by certified, registered or express mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally or sent by facsimile
transmission or, if mailed, five (5) days after the date of deposit in the
United States mails, as follows
(a) if to Kohlberg, to:
Kohlberg & Co., LLC
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Ropes & Xxxx, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
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(b) if to the Company:
Applied Graphics Technologies, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
Facsimile: 000-000-0000
Any party may by notice given in accordance with this Section to the other party
designate another address or person for receipt of notices hereunder.
SECTION 7. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
SECTION 8. Assignment; Third Party Beneficiaries. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either of the parties (whether by operation of law or otherwise)
without the prior written consent of the other party. This Agreement shall not
confer any rights or remedies upon any person other than the parties and, in
respect of the limitations of liability and rights to indemnification in Section
4 hereof, the Indemnified Parties.
SECTION 9. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes any other prior agreements and understandings, both
written and oral, between the parties or their affiliates with respect to the
subject matter hereof.
SECTION 10. Headings. Headings in this Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
SECTION 11. Amendments; Waivers. No amendment, modification, supplement
or discharge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing, and duly executed by the party or
Indemnified Party against whom enforcement of the amendment, modification,
supplement, discharge or waiver is sought. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party or Indemnified Party granting
such waiver in any other respect or at any other time.
SECTION 12. Governing Law. This Agreement and all claims arising under
or in connection therewith, shall be governed by and construed in accordance
with the domestic substantive laws of the State of New York, without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any other jurisdiction.
SECTION 13. Consent to Jurisdiction. Each party to this Agreement, by
its execution hereof, (i) irrevocably submits to the exclusive jurisdiction of
the state courts of the State of New York, New York County or the United States
District Court located in the State of New York, New York County for the purpose
of any action arising in whole or in part under or in connection with this
Agreement, (ii) hereby waives to the extent not prohibited by applicable
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law, and agrees not to assert, by way of motion, as a defense or otherwise, in
any such action, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that any such action brought in one of the above-named courts may
be removed to any federal court, should be dismissed on grounds of forum non
conveniens, should be transferred to any court other than one of the above-named
courts, or should be stayed by reason of the pendency of some other proceeding
in any other court other than one of the above-named courts, or that this
Agreement or the subject matter hereof may not be enforced in or by such court,
and (iii) hereby agrees not to commence any action arising out of or based upon
this Agreement or relating to the subject matter hereof other than before one of
the above-named courts nor to make any motion or take any other action seeking
or intending to cause the transfer or removal of any such action to any court
other than one of the above-named courts whether on the grounds of inconvenient
forum or otherwise. Each party hereby (x) consents to service of process in any
such action in any manner permitted by New York law; (y) agrees that service of
process made in accordance with clause (x) or made by registered or certified
mail, return receipt requested, at its address specified pursuant to Section 6,
shall constitute good and valid service of process in any such action; and (z)
waives and agrees not to assert (by way of motion, as a defense, or otherwise)
in any such action any claim that service of process made in accordance with
clause (x) or (y) does not constitute good and valid service of process.
SECTION 14. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW THAT CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES,
AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE IN
ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS
AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION 14 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY
TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
SECTION 15. Reliance. Each of the parties hereto acknowledges that he
or it has been informed by each other party that the provisions of Sections 12,
13 and 14 constitute a material inducement upon which such party is relying and
will rely in entering into this Agreement, and each such party agrees that any
breach by such party of any of the provisions of Sections 12, 13 or 14 would
constitute a material breach of this Agreement.
SECTION 16. Termination. This Agreement may be terminated by Kohlberg
at any time by written notice to the Company. In addition, this Agreement will
terminate automatically as of the earlier of (i) the tenth anniversary of this
Agreement and (ii) the end of the fiscal year in which the percentage interest
in the outstanding common stock of the Company which is indirectly or directly,
beneficially owned by the Kohlberg Members and their Affiliates falls below 25%.
The provisions of Sections 2 and 3 (to the extent of fees and expenses earned or
incurred but not paid or reimbursed as of the date of termination) and of
Section 4 shall survive any termination of this Agreement.
SECTION 17. Definitions. Capitalized terms used herein have the
following specifically defined meanings:
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"Affiliate" shall mean, with respect to any specified Person, any
Person that directly or through one or more intermediaries controls or is
controlled by or is under common control with the specified Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
"Kohlberg Members" shall mean Kohlberg Investors IV, L.P., Xxxxxxxx XX
Investors IV, L.P., Kohlberg Offshore Investors IV, L.P. and Kohlberg Partners
IV, L.P.
"Person" means an individual, partnership, joint venture, association,
corporation, trust, estate, limited liability company, limited liability
partnership, unincorporated entity of any kind, governmental entity, or any
other legal entity.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Legal Officer, and Secretary
KOHLBERG & CO., L.L.C.
By: /s/ Xxxxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxxx
Title: Authorized Member
