MANAGEMENT AGREEMENT
AGREEMENT made as of December 16, 1996, between Scholastic Brands,
Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxxxx, Inc., a
Delaware corporation (the "Manager").
WHEREAS, the Company and its subsidiaries are engaged in the
manufacture and marketing of class rings, scholastic fine paper products and
recognition and affinity jewelry, and the Manager is experienced in business and
organizational strategy, financial and investment management and merchant and
investment banking;
WHEREAS, the Company desires to retain the Manager to provide business
and organizational strategy, financial and investment management and merchant
and investment banking services to the Company upon the terms and conditions
hereinafter set forth, and the Manager is willing to undertake such obligations;
and
WHEREAS, pursuant to the Subscription Agreement, dated the date
hereof, each Stockholder of the Company has agreed that the Company shall enter
into a management agreement with the Manager.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto agree as follows:
1. APPOINTMENT.
The Company hereby engages the Manager and the Manager hereby agrees
under the terms and conditions set forth herein to provide certain services to
the Company as described in Section 2 hereof.
2. DUTIES OF MANAGER.
The Manager shall provide the Company with consulting services
(collectively, the "Consulting Services") related to the following:
(i) business and organizational strategy, including strategy relating to
(a) development of new products and new markets, and analysis and
research related thereto;
(b) new product implementation;
(c) development of broad business growth strategies; and
(ii) human resource management, including
(a) design and development of incentive and bonus programs for
management team;
(b) assistance with senior executive hiring decisions;
(c) coordination of activities of compensation committee of the Board
of Directors of the Company;
(d) design and development of employee stock ownership programs;
and
(iii) public relations and related matters, including
(a) assistance in developing an enhanced public relations program
designed to broaden name recognition of the Company in the
business community;
(b) advice on general labor matters; and
(iv) financial and investment management and merchant and investment
banking and corporate finance, including
(a) identification and implementation of merger and acquisition
opportunities for the Company, for which the Manager may
receive additional consideration;
(b) assistance with negotiation of loan documentation (including
amendments thereto) and lender relationships on an ongoing basis;
(c) advice regarding acquisition strategies and responses to external
proposals; and
(d) advice regarding additional capital requirements.
Without limiting any of the foregoing, representatives of the Manager may
participate, without additional compensation, on the Company's and certain of
its affiliates' Boards of Directors and Board Committees.
2.1 EXCLUSIONS FROM "CONSULTING SERVICES". Notwithstanding anything in
the foregoing to the contrary, the following services are specifically excluded
from the definition of "Consulting Services":
(i) INDEPENDENT ACCOUNTING SERVICES. Accounting services rendered to
the Company or the Manager with prior notice and consultation with the
Company's management, by an independent accounting firm or accountant
(I.E., an accountant who is not an employee of the Manager);
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(ii) INDEPENDENT ACTUARIAL SERVICES. Actuarial services rendered to
the Company or the Manager with prior notice and consultation with the
Company's management, by an independent actuarial firm or actuary (I.E., an
actuary who is not an employee of the Manager);
(iii) LEGAL SERVICES. Legal services rendered to the Company or the
Manager with prior notice and consultation with the Company's management,
by an independent law firm or attorney (i.e., an attorney who is not an
employee of the Manager); and
(iv) TRANSACTION SERVICES. Services in connection with any
transaction in which the Company or its subsidiaries may be, or may
consider becoming, involved, it being understood that the Manager shall
have the right of first refusal concerning all opportunities to perform,
for an additional fee, any of such transaction related services. Such
right must be exercised within 30 business days of receipt by the Manager
of such offer.
2.2 POWERS OF THE MANAGER. So that it may properly perform its duties
hereunder, the Manager shall, subject to Section 2.3 hereof, have the power to
take all action and do all things necessary and proper to carry out the duties
set forth in Section 2 hereof.
2.3 LIMITATIONS ON THE MANAGER'S POWERS. Notwithstanding anything herein
to the contrary, the Manager's responsibilities are consultative only, and the
Manager shall have no power to take any action on behalf of the Company, or to
cause the Company to be responsible for taking any action.
3. COMPENSATION OF MANAGER.
During the term of this Agreement the Company agrees to pay the Manager on
a quarterly basis in arrears, payable on the last business day of each calendar
quarter, a management fee of $1.5 million per year (or $375,000 per quarter);
PROVIDED, HOWEVER, that the full management fee of $1.5 million for the first
year of this agreement shall be payable in advance on the date hereof; and
PROVIDED FURTHER, HOWEVER, that, pursuant to an indenture dated as of December
16, 1996 (the "Indenture"), between the Company and Marine Midland Bank (as
Trustee), at any time and so long as the Company shall be in default in payment
of any principal, Redemption Price (as defined in the Indenture), Purchase Price
(as defined in the Indenture), interest, Liquidated Damages (as defined in the
Indenture ) (if any) or other amounts owing on the Company's 11% Senior
Subordinated Notes due 2007 (the "Notes"), the Company may defer payment of any
fees payable hereunder until such time as the Company shall no longer be in
default or no Notes shall remain outstanding.
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4. TERM AND TERMINATION OF AGREEMENT.
(a) This Agreement shall be for a term of ten (10) years from the
date hereof, and shall automatically renew from year to year thereafter
unless terminated as described in paragraph (b) of this Section 4.
(b) If Xxxxxx Xxxxxx Partners II, L.P. and its affiliates and limited
partners shall own less than 5% of the then aggregate outstanding capital
stock of the Company, this Agreement shall be subject to renegotiation by
the Board of Directors of the Company.
5. LIABILITY.
The Manager is not and never shall be liable to any creditor of the
Company, and the Company agrees to indemnify and hold the Manager and its
officers and employees and affiliates harmless from and against any and all such
claims of alleged creditors and against all costs, charges, liabilities and
expenses (including reasonable attorneys' fees and expenses) incurred or
sustained by the Manager or such other person in connection with any action,
suit or proceeding to which it may be made a party by any alleged creditor. The
Company also agrees to indemnify and hold the Manager and its officers and
employees and affiliates harmless from and against any and all liabilities,
losses, costs or damages suffered, paid or incurred by the Manager or such other
person arising out of, or in any way connected with, or as a result of, the
execution and delivery of this Agreement, or the performance or alleged
performance by or on behalf of the Manager of the Consulting Services hereunder.
Notwithstanding the foregoing, the Company shall not be required to indemnify
the Manager or such other person for any liabilities, losses, costs or damages
that result from the gross negligence or willful misconduct of the Manager or
such other person.
6. ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the
parties' successors and permitted assigns. However, neither this Agreement nor
any of the rights of the parties hereunder may be transferred or assigned by
either party hereto, except that (a) if the Company shall merge or consolidate
with or into, or sell or otherwise transfer substantially all its assets to,
another corporation that assumes the Company's obligations under this Agreement,
the Company may assign its rights hereunder to that corporation, and (b) the
Manager may assign its rights and obligations hereunder to any other person or
entity controlled, directly or indirectly, by Xxxx X. Xxxxxx. Any attempted
transfer or assignment in violation of this Section 6 shall be void.
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7. RELATIONSHIP OF THE PARTIES.
Nothing contained in this Agreement is intended or is to be construed
to constitute the Manager and the Company as partners or joint venturers or
either party as an employee of the other party. Neither party hereto shall have
any express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party. The services to be
performed by the Manager hereunder are consultation services only. The Company
shall at all times be free to accept or reject the advice rendered by the
Manager hereunder in its sole discretion.
8. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended or
waived only by a writing signed by both parties, and then such consent
shall be effective only in the specific instance and for the specific
purpose for which given.
(b) NOTICES. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly
given when delivered, if delivered personally or sent by telecopy, or when
mailed, if sent by registered or certified mail, return receipt requested,
postage prepaid.
(i) if to the Company, to it at:
0000 Xxxxxx X. Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx, President
(ii) if to the Manager, to it at:
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx
or at such other address as any party shall have specified by notice in
writing to the others.
(c) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect
to the subject matter hereof.
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(d) SECTION HEADINGS. The section headings contained herein are
included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(e) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
(f) APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable
to contracts made and to be performed entirely within such State,
regardless of the law that might be applied under principles of conflicts
of law.
(g) SEVERABILITY. Any section, clause, sentence, provision,
subparagraph or paragraph of this Agreement held by a court of competent
jurisdiction to be invalid, illegal or ineffective shall not impair,
invalidate or nullify the remainder of this Agreement, but the effect
thereof shall be confined to the section, clause, sentence, provision,
subparagraph, or paragraph so held to be invalid, illegal or ineffective.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SCHOLASTIC BRANDS, INC.
By:
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Name:
Title:
XXXXXX XXXXXX, INC.
By:
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Name:
Title:
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