EXHIBIT 10.23.1
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT (the
"Agreement"), is made and entered into on July 1, 2005 (the "Effective Date"),
by and between Sport Supply Group, Inc., a Delaware corporation ( "SSG"), and
Xxxxxxx Radio Corp., a Delaware corporation ("Xxxxxxx").
WHEREAS, Xxxxxxx and SSG entered into a Management Services
Agreement on July 1, 1997 to be effective as of March 7, 1997 (such agreement,
as amended to date, is referred to herein as the "Original MSA").
WHEREAS, pursuant to the Stock Purchase Agreement to be entered
into among Collegiate Pacific Inc., a Delaware corporation (the "Buyer"),
Xxxxxxx and Xxxxxxx Radio (Hong Kong) Limited (the "Stock Purchase Agreement"),
the Buyer will purchase from Xxxxxxx and Xxxxxxx Radio (Hong Kong) Limited all
shares of capital stock of SSG owned by Xxxxxxx and Xxxxxxx Radio (Hong Kong)
Limited (the "Shares").
WHEREAS, it is a condition to the Buyer's purchase of the Shares
that SSG and Xxxxxxx enter into this Agreement to amend and restate the Original
MSA in its entirety.
WHEREAS, Xxxxxxx and SSG desire to amend and restate the Original MSA
in its entirety with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, SSG and Xxxxxxx hereby agree as
follows:
ARTICLE I
MANAGEMENT SERVICES
1.1 SSG Responsibilities. Xxxxxxx and SSG hereby agree that,
during the term of this Agreement, SSG will be responsible for
providing Xxxxxxx with the following services:
(a) Process payroll and payroll taxes for Xxxxxxx'x employees
and assist Xxxxxxx by enrolling Xxxxxxx employees in Xxxxxxx'x employee
benefit plans, and process the payment of insurance premiums to
Xxxxxxx'x benefit providers so long as Xxxxxxx submits the correct
amount of the premium to SSG on a timely basis (subject to SSG
receiving from Xxxxxxx all of the necessary information, which is not
in SSG's possession, custody or control, required to fulfill these
functions) (collectively, "Human Resource Services"). Such Human
Resource Services shall be performed on a timely basis in accordance
with industry standards.
(b) Process Xxxxxxx'x accounts payables and process checks to
be delivered, approved and signed by an officer of Xxxxxxx
(collectively, the "Payable Services");
(c) Provide office space (subject to availability and in no
event after the time SSG ceases to occupy the office space currently
occupied by SSG at 0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx, in which
event SSG shall provide Xxxxxxx with at least thirty (30) days prior
written notice of vacating such space) for certain employees of Xxxxxxx
at SSG's office located at 0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx
00000, or such other mutually agreeable location (collectively, the
"Office Space").
(d) Incorporate the XxxxxxxXxxxx.xxx website into SSG's
websites for hosting and fulfillment in accordance with the terms of
Exhibit A attached hereto (collectively, the "Internet Services"); and
(e) Subject to the terms and provisions of an agreement
between SSG and Xxxxxx.xxx, support XxxxxxxXxxxx.xxx products offered
for sale on Xxxxxx.xxx in accordance with the terms of Exhibit B
attached hereto (collectively, the "Amazon Services").
All of the services set forth in this Section 1.1 shall be collectively
referred to in this Agreement as the "SSG Services".
Notwithstanding the foregoing, SSG will not be responsible for providing
any services to Xxxxxxx not expressly set forth herein, including, without
limitation, any legal or tax related services; provided, however, SSG will
provide the necessary data as reasonably requested by ADP to enable ADP to
prepare Xxxxxxx'x payroll tax returns.
1.2 Xxxxxxx Responsibilities. Xxxxxxx and SSG hereby agree
that, during the term of this Agreement, Xxxxxxx will be responsible for
providing SSG with the following services consistent with past practices:
(a) Xxxxxxx will furnish to SSG all information and data, not
in SSG's custody or control, reasonably necessary for SSG to provide
the SSG Services, including, without limitation, all payroll files and
employee payroll and other information that SSG may advise Xxxxxxx it
requires to perform the SSG Services under this Agreement. SSG shall be
entitled to rely upon the accuracy and completeness of all information
that it reasonably believes to have been furnished to it by Xxxxxxx or
at Xxxxxxx'x direction, and shall have no duty to inquire about such
information. SSG acknowledges no changes to Xxxxxxx'x corporate payroll
records will be made without the prior written consent of Xxxxxxx.
(b) Calculate daily borrowing availability with respect to
SSG's secured credit facility, prepare daily reporting for SSG's banks,
prepare forecasts of cash availability and cash flow, wire funds and
set-up letters of credit as may be requested by an officer of SSG, or
an authorized agent of SSG for which Xxxxxxx receives notice of such
authorization from an officer of SSG from time to time (collectively,
the "Treasury Management Services").
(c) Xxxxxxx will provide record keeping and accounting
services for Sport Supply Group Asia, Ltd., SSG's wholly-owned
subsidiary ("SSG Asia").
(d) Xxxxxxx shall be solely responsible for resolving any
dispute between Xxxxxxx and any employee of Xxxxxxx and answering any
inquiries relating to an Xxxxxxx employee's rights and entitlements
under Xxxxxxx'x benefit plans. Xxxxxxx is solely responsible for the
administration of its benefit plans (including, without limitation, its
401(k) Plan ) and executing and filing with any governmental authority
or other person all reports or other documents required in connection
with such benefit plans, and SSG shall have no reporting obligation in
connection with any aspect of Xxxxxxx'x benefit plans. In addition, SSG
shall not be deemed a fiduciary or plan administrator of Xxxxxxx or any
of Xxxxxxx'x benefit plans and shall not have any responsibility to
monitor compliance by Xxxxxxx with the terms and conditions of any
benefit plan or any law applicable thereto.
All of the services set forth in this Section 1.2 shall be collectively referred
to in this Agreement as the "Xxxxxxx Services".
1.3 Cooperation. Each party hereto shall cooperate with the other party
by, among other things, making available, as reasonably requested by the
requesting party, management decisions, personnel information, approvals and
acceptances in order that the work of each party contemplated hereby may be
accomplished.
1.4 Insurance. SSG will not be liable to Xxxxxxx or any of the
employees or contractors of Xxxxxxx for damage or loss to person or property,
including theft, burglary, assault, vandalism or other crimes, unless such
damage or loss is caused by the gross negligence or willful misconduct of SSG.
SSG will not be liable to Xxxxxxx or any of its employees or contractors for
personal injury or for damage to or loss of their personal property from fire,
flood, water leaks, rain, hail, ice, snow, smoke, lightning, wind, explosions,
strike, war, riot, terrorism, insurrection, interruption of utilities or other
occurrences unless such injury, loss or damage is caused by the gross negligence
or willful misconduct of SSG. Xxxxxxx acknowledges that none of the Office Space
is fireproof. Xxxxxxx is strongly urged to secure its own insurance to protect
against all of the above. Xxxxxxx agrees to carry appropriate insurance for
inventory and other property stored at the Office Space.
1.5 Permissible Activities. Nothing herein shall in any way preclude
Xxxxxxx or SSG from engaging in any business activities or from performing
services for its own account or for the account of others.
ARTICLE II
COMPENSATION
2.1 SSG Service Charges. Xxxxxxx and SSG hereby agree that, effective
July 1, 2005 (except as otherwise noted) SSG will be compensated at the initial
rates set forth below for the services rendered by SSG to Xxxxxxx pursuant to
this Agreement:
Services Amount in U.S. Dollars
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Human Resource Services $3,333 per month
Payable Services $1,000 per month
Office Space $5.00 per square foot
Internet Services See Exhibit A attached hereto
Amazon Services See Exhibit B attached hereto
The amount of such service charges may be adjusted from time to time by the
parties' mutual written agreement. Such service charges shall be payable within
thirty (30) days of the date an invoice is received. Partial months shall be
prorated accordingly. Xxxxxxx will also be responsible for paying all of SSG's
out-of-pocket expenses related to the above services , such as postage,
telephone and telecopy bills, telephone lines, office supplies, transition
services, etc. The payment of any expenses incurred by SSG on Xxxxxxx'x behalf
in excess of $1,000 requires Xxxxxxx'x written consent.
2.2 Xxxxxxx Service Charges. Xxxxxxx and SSG hereby agree that,
effective July 1, 2005 Xxxxxxx will be compensated at the initial rates set
forth below for the services rendered by Xxxxxxx to SSG pursuant to this
Agreement:
Services Amount in U.S. Dollars
-------- ----------------------
SSG Asia $$834 per month
Treasury Management Services $2,450 per month
The amount of such service charges may be adjusted from time to time by the
parties' mutual written agreement. Such service charges shall be payable within
thirty (30) days of the date an invoice is received. Partial months shall be
prorated accordingly. SSG will also be responsible for paying all of Xxxxxxx'x
out-of-pocket expenses related to the above services, such as postage, telephone
and telecopy bills, telephone lines, office supplies, transition services, etc.
The payment of any expenses incurred by Xxxxxxx on SSG's behalf in excess of
$1,000 requires SSG's written consent.
ARTICLE III
TERM AND TERMINATION
3.1 Term. Subject to the right of termination in Section 3.3 and
Section 3.4, SSG shall provide the Human Resource Services, Payable Services and
Office Space and Xxxxxxx shall provide the Treasury Management Services
(collectively the "Transition Services") for a transition period beginning on
the Effective Date for a period of up to 120 days or such longer period as
Xxxxxxx and SSG may mutually agree (the "Transition Date") in order to
facilitate the parties' transition of the Transition Services to another
provider. Xxxxxxx and SSG have the right to direct that any or all of the
Transition Services being provided to it by the other party be terminated prior
to the Transition Date. With respect to all other SSG Services and Xxxxxxx
Services, this Agreement shall become effective as of the Effective Date and
shall continue in force until terminated pursuant to the terms of this Agreement
or otherwise agreed by the parties.
3.2 Termination. Subject to the provisions of Section 3.1 hereof, all
services under this Agreement, other than Transition Services, may be terminated
by either party on sixty (60) days' prior written notice to the other party.
3.3 Termination for Nonpayment. Notwithstanding Section 3.1 or Section
3.2 hereof, in the event that either party defaults in the payment when due of
any amount due to the other hereunder and does not cure such default within ten
(10) days after being given written notice of such default, then the
non-defaulting party may, by giving written notice thereof to the defaulting
party, terminate this Agreement as of the date specified in such notice of
termination.
3.4 Termination for Insolvency. Notwithstanding Section 3.1 or Section
3.2 hereof, in the event that either party hereto becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or similar office
for it, makes an assignment for the benefit of all or substantially all of its
creditors, or enters into an agreement for the composition, extension, or
readjustment of all or substantially all of its obligations, then the other
party hereto may, by giving written notice thereof to such party, terminate this
Agreement as of the date specified in such notice of termination.
3.5 Return of Records. Upon the termination of this Agreement for any
reason, SSG shall promptly return to Xxxxxxx all books, records, documents,
information and data (including data stored in computers or on any computer
media or equipment), including all copies of the foregoing, that belong to
Xxxxxxx and Xxxxxxx shall promptly return to SSG all books, records, documents,
information and data (including data stored in computers or on any computer
media or equipment), including all copies of the foregoing, that belong to SSG.
ARTICLE IV
GENERAL PROVISIONS
4.1 Confidentiality. Each party agrees that all information
communicated to it by the other, whether before or after the Effective Date, was
and shall be received in strict confidence and shall be used only for the
purposes of this Agreement, and that no such information, including, without
limitation, the provisions of this Agreement, shall be disclosed or otherwise
used by a party to this Agreement or its security holders, directors, officers,
employees, or agents, without the prior written consent of the other party,
except as may be necessary by reason of legal, accounting or regulatory
requirements. The requirements and obligations of this Section 4.1 shall survive
the termination of this Agreement.
4.2 Indemnification.
(a) SSG agrees to indemnify, defend and hold harmless Xxxxxxx and
its affiliates and their respective directors, officers, agents,
employees and controlling persons from and against any and all losses,
claims, damages, liabilities and expenses (including the reasonable
cost of investigating and defending against any claims therefor and
reasonable counsel fees and expenses incurred in connection therewith)
that resulted solely from the willful bad faith or gross negligence of
SSG in the performance of the SSG Services that are the subject of this
Agreement. No express or implied warranty is made by SSG in respect to
any SSG Service or product provided hereunder including, without
limitation, any implied warranty or merchantibility or fitness for a
particular purpose.
(b) Xxxxxxx agrees to indemnify, defend and hold harmless SSG and
its affiliates and their respective directors, officers, agents,
employees and controlling persons from and against any and all losses,
claims, damages, liabilities and expenses (including the reasonable
cost of investigating and defending against any claims therefor and
reasonable counsel fees and expenses incurred in connection therewith)
(i) that resulted solely from the willful bad faith or gross negligence
of Xxxxxxx in the performance of the Xxxxxxx Services that are the
subject of this Agreement or (ii) related to or arising out of SSG's
use of Xxxxxxx'x Brand Names and Marks, as described in Section 4.15
below). No express or implied warranty is made by Xxxxxxx in respect to
any Xxxxxxx Service or product provided hereunder including, without
limitation, any implied warranty or merchantibility or fitness for a
particular purpose.
(c) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR PUNITIVE DAMAGES
OR FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOST PROFITS OF ANY PARTY, INCLUDING THIRD PARTIES.
FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR
TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED
AGAINST EITHER PARTY.
4.3 Relationship of Parties. It is the express intention and understanding
of SSG and Xxxxxxx that the relationship of SSG and Xxxxxxx shall be at all
times that of an independent contractor, with each party having full and
complete liberty to use its own free and uncontrolled will, judgment and
discretion as to the method and manner of performing the obligations of such
party hereunder. Other than the SSG Services specifically stated herein to be
performed by SSG, SSG does not undertake by this Agreement or otherwise to
perform any regulatory or contractual obligation of Xxxxxxx, or to assume any
responsibility for Xxxxxxx'x business or operations. Other than the Xxxxxxx
Services specifically stated herein to be performed by Xxxxxxx, Xxxxxxx does not
undertake by this Agreement or otherwise to perform any regulatory or
contractual obligation of SSG, or to assume any responsibility for SSG's
business or operations. Nothing herein contained or done pursuant to this
Agreement shall constitute SSG or its agents or employees a partner or joint
venturer of Xxxxxxx, or a fiduciary of (i) Xxxxxxx, (ii) any benefit plan of
Xxxxxxx, or (iii) any employee of Xxxxxxx. Nothing herein contained or done
pursuant to this Agreement shall constitute Xxxxxxx or its agents or employees a
partner or joint venturer of SSG, or a fiduciary of (i) SSG, (ii) any benefit
plan of SSG, or (iii) any employee of SSG.
4.4 Notices. All notices that are required or may be given pursuant to the
terms of this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and delivered personally, by commercial messenger
service, or by registered or certified mail, postage prepaid, to the other party
at the following address or to such other address as either party shall provide
to the other party in writing in accordance with this Section 4.4:
If to SSG: If to Xxxxxxx:
Sport Supply Group, Inc. Xxxxxxx Radio Corp.
0000 Xxxxxxxx Xxxxx Nine Xxxxx Road
Farmers Branch, Texas 75234 Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Chief Executive Officer Attn: Chief Executive Officer
cc: General Counsel cc: Law Department
4.5 Attorneys' Fees. In the event that attorneys' fees or other costs are
incurred to secure performance of any of the obligations set forth in this
Agreement, to establish damages for the breach thereof, or to obtain any other
appropriate relief, whether by way or prosecution or defense, the prevailing
party (as determined by the judge in the judge's sole discretion) shall be
entitled to recover reasonable attorneys' fees and costs incurred therein.
4.6 Counterparts. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
4.7 Binding Agreement; Assignment. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and their respective
representatives, successors, and assigns, but neither this Agreement nor any of
the rights, interests, or obligations hereunder shall be assigned or delegated
by any of the parties hereto, whether by operation of law or otherwise, without
the prior written consent of the other party (which consent shall not be
unreasonably withheld), nor is this Agreement intended to confer upon any other
person other than the parties hereto any rights or remedies hereunder. Any
assignment or delegation in violation of this Agreement shall be null and void.
4.8 Waiver. No delay on the part of either party in exercising any of its
respective rights hereunder, nor the failure to exercise the same, nor the
acquiescence in or waiver of a breach of any term, provision or condition of
this Agreement shall be deemed or construed to operate as a waiver of such
rights or acquiescence thereto except in the specific instance for which given.
4.9 Severability. If any provision of this Agreement is declared or found
to be illegal, unenforceable or void, then each party will be relieved of its
obligations arising under such provision to the extent such provision is
declared or found to be illegal, unenforceable or void (it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective), and each provision not so affected will be
enforced to the full extent permitted by law.
4.10 Entire Agreement. This Agreement (and the exhibits attached hereto)
contains the entire understanding of the parties relating to the subject matter
of this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements and understandings relating to such subject
matter. This Agreement cannot be modified, amended or terminated except in
writing signed by the party against whom enforcement is sought.
4.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLE OR RULE THAT MIGHT
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. EACH PARTY AGREES
THAT THIS AGREEMENT IS FULLY PERFORMABLE IN DALLAS COUNTY, TEXAS, AND THAT ANY
ACTION, DISPUTE OR PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THE
SUBJECT MATTER OF THIS AGREEMENT SHALL BE BROUGHT SOLELY IN A COURT OF COMPETENT
JURISDICTION SITTING IN DALLAS, DALLAS COUNTY, TEXAS. EACH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF ANY SUCH COURT
AND HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING AND ANY RIGHT OF
JURISDICTION ON ACCOUNT OF THE PLACE OF RESIDENCE OR DOMICILE OF ANY PARTY
THERETO.
4.12 Other Documents. Each party hereto agrees to execute any and all
documents, and to perform such other acts, that may be necessary or expedient to
further the purposes of this Agreement.
4.13 Force Majeure. Each party hereto shall be excused from performance
hereunder for any period and to the extent that it is prevented from performing
any services pursuant hereto, in whole or in part, as a result of delays caused
by the other party or by an act of God, war, civil disturbance, court order,
labor dispute, third party nonperformance, or other cause beyond its reasonable
control, including without limitation failures or fluctuations in electrical
power, heat, light, air conditioning or telecommunications equipment, and such
nonperformance shall not be a default hereunder or a ground for termination
hereof. Notwithstanding the foregoing, in the event such condition exists
greater than thirty (30) days, either party may terminate this Agreement by
giving the other party written notice of termination, which termination shall be
effective as of the date set forth in such notice.
4.14 Headings. The section headings used herein are for reference and
convenience only, and shall not enter into the interpretation hereof.
4.15 Trademarks. SSG shall use its own name or trademarks in all
dealings. It may not use any trademarks or tradenames or rights to use same
belonging to Xxxxxxx and/or its subsidiaries or affiliates (other than SSG's)
without Xxxxxxx'x prior written consent in each instance. To the extent Xxxxxxx
gives such consent, SSG may use such trademarks and "XXXXXXX" brand and product
names and such other brand name(s) under which the products may hereinafter be
marketed in the United States or on the world wide web by Xxxxxxx and/or its
subsidiaries or affiliates (other than SSG's) (collectively, the "Brand Names
and Marks") only in connection with the performance of the SSG Services. Xxxxxxx
may withdraw such consent at any time. Thereafter, except as provided below, no
advertising or other use of the Brand Names and Marks may be made by SSG without
Xxxxxxx'x prior written approval in each instance. All use of the Brand Names
and Marks and all goodwill associated therewith shall inure to the benefit of
Xxxxxxx. SSG shall have no interest in or rights to the Brand Names or Marks or
any of them nor shall SSG have or accrue any interest in or to the goodwill
associated therewith. Upon expiration or earlier termination of this Agreement,
SSG shall discontinue all use of the Brand Names or Marks in advertising or
otherwise, and shall remove all signs and displays relating thereto and shall
return to the Xxxxxxx at Xxxxxxx'x expense, all signs, displays and other
writings and materials relating thereto; provided, however, the foregoing does
not apply to any advertising in the process of being printed or in inventory
that also includes SSG's products (including, without limitation, catalogs). SSG
is not and this Agreement does not constitute SSG as being a holder of a license
or permitted to use the Brand Names or Marks nor shall this Agreement be deemed
to make SSG a franchisee.
Xxxxxxx shall use its own name or trademarks in all dealings. It may
not use any trademarks or tradenames or rights to use same belonging to SSG
and/or its subsidiaries or affiliates (other than Xxxxxxx'x) without the SSG's
prior written consent in each instance.
4.16 No Third Party Beneficiaries. This Agreement and the rights and
obligations hereunder do not and shall not confer any rights to any third
parties and no third parties shall have any rights under this Agreement.
4.17 Survival. Paragraphs 2.1, 2.2, 3.5, 4.1, 4.2, 4.4, 4.5, 4.11,
4.15, and 4.16 shall survive the expiration or earlier termination of this
Agreement.
4.18 Waiver of Claims Under Original MSA. Xxxxxxx and SSG hereby waive
any and all prior breaches or defaults of any term, provision or condition of
the Original MSA by the other party.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
SSG:
SPORT SUPPLY GROUP, INC.
By: /s/ XX Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: COO
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XXXXXXX:
XXXXXXX RADIO CORP.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxxx
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Title: SVP-HR, Corp. Sec.
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