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Exhibit 10.17
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made and entered into
as of November 10, 1999 by and between THE YUCAIPA COMPANIES LLC, a Delaware
limited liability company ("Yucaipa"), and CYRK, INC., a Delaware corporation
(the "Company").
W I T N E S S E T H:
WHEREAS, CYRK and Overseas Toys, L.P., an affiliate of Yucaipa, have
entered into that certain Securities Purchase Agreement dated as of September 1,
1999 providing for the investment by Overseas Toys, L.P. in securities of the
Company;
WHEREAS, in connection therewith CYRK desires to have access to the
management services of Yucaipa; and
WHEREAS, Yucaipa has the ability to provide certain general business
and financial consultation and advice and management services to CYRK in
connection with the operation of its business;
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
CYRK hereby engages Yucaipa as an independent contractor and consultant
to provide general business consultation and advice and management services to
CYRK and its subsidiaries in connection with the operation of their businesses.
SECTION 2. MANAGEMENT SERVICES.
Yucaipa, through its partners, affiliates and/or its or their
employees, shall provide CYRK with consultation and advice, when and as
reasonably requested by CYRK, in such fields as 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 CYRK or any of its 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 fees (or reimbursement or
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
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of the Board of Directors or (c) 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"), CYRK shall pay to
Yucaipa an annual management fee, in consideration of the services rendered by
Yucaipa pursuant to Section 2 above, equal to $500,000, payable in 12 equal
installments in advance on the first day of each month and past due on the
fifteenth day of each such month; 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.
CYRK and its subsidiaries (or any one of them) shall retain or employ
Yucaipa as a financial advisor and/or consultant in connection with any
acquisition or disposition transaction by CYRK or any of its subsidiaries, other
than a sale of all of the outstanding capital stock of, or all or substantially
all of the assets of CYRK. 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. If any
retention of Yucaipa by CYRK or any of its 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 CYRK, 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
CYRK 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, 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 CYRK or any of its
subsidiaries, as the case may be, in connection therewith.
SECTION 6. REIMBURSEMENT OF EXPENSES.
CYRK 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 CYRK for the amount of all
such expenses monthly, and shall provide CYRK 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 with the
rendering of management services under Section 2 hereof shall not exceed
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$500,000 in any fiscal year of CYRK (which maximum amount shall be prorated for
the period beginning on the Effective Date and ending on the last day of CYRK's
current fiscal year). In addition to the foregoing, CYRK 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 CYRK and/or its subsidiaries, in connection with any acquisition or
disposition transaction, or debt or equity financing, 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 November 10th of
each year, unless at least ninety (90) days prior notice is given by either
party electing not to so renew this Agreement, in which event the term of this
Agreement shall end at date that is five (5) years after the later of the date
of this Agreement or date of the last renewal hereof.
SECTION 8. TERMINATION.
8.1 TERMINATION AT WILL. CYRK 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) CYRK or Yucaipa 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. Notwithstanding the foregoing, any failure or alleged failure of
CYRK, 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 CYRK 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.
8.3 TERMINATION FOR CHANGE OF CONTROL. This Agreement may be
terminated, at the election of Yucaipa or CYRK, if during the term hereof there
shall have been a change in control of CYRK, 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
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person (other than Yucaipa or any of its partners or affiliates) or any group of
persons (excluding any group which includes Yucaipa or say of its partners or
affiliates) who constitute a group (within the meaning of Section 13(d)(3) of
the Exchange Act) of any securities of CYRK 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 CYRK's then outstanding
voting securities entitled to vote on a regular basis for a majority of the
Board of Directors of CYRK; (b) the sale of all or substantially all of the
assets of CYRK (including, without limitation, by way of merger, consolidation,
lease or transfer) in a transaction where CYRK or the beneficial owners of
common stock of CYRK 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
CYRK (or, if applicable, a successor corporation to the Company). 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 November 10, 1999 (following the Special Meeting of Cyrk's
Stockholders on such date) 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 of
election.
8.4 PAYMENTS UPON TERMINATION.
(a) In the event of any termination pursuant to Section 8.1,
Section 8.2(a) (if by Yucaipa) or Section 8.2(b) hereof, CYRK 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 has not been terminated.
(b) In the event of any termination pursuant to Section 8.2(a)
by CYRK, Yucaipa promptly shall refund to CYRK a prorated portion of the
management fee received by it under Section 3 for the period in which such
termination occurs.
(c) In the event of any termination pursuant to Section 8.3,
CYRK 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 such period.
(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
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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,
(c) by addressing it as indicated below, and by delivering it charges prepaid to
a reputable overnight delivery service (e.g., Federal Express) or (d) by
telecopier.
9.2 DELIVERY OF NOTICE; ADDRESS. If so delivered, mailed, couriered or
telecopied, 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 first business day after the date of delivery to a reputable overnight
delivery service, or when confirmation is received when sent by telecopier, 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: Xxx Xxxxxxxxxx
Facsimile: 000-000-0000
If to CYRK: CYRK, Inc.
0 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Facsimile: 000-000-0000
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
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hereto; provided, however, that Yucaipa may assign, without the prior consent of
CYRK or the 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 Delaware, 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 contendere
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.
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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 LLC
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Vice President & Secretary
CYRK, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
and President
