Exhibit 10.16
EXECUTIVE MANAGEMENT AGREEMENT
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THIS EXECUTIVE MANAGEMENT AGREEMENT (this "Agreement"), is made and
entered into as of May 5, 1999, by and among Xxxxxxx X. Xxxxx & Sons, L.L.C., a
Delaware limited liability company ("WES&Sons") and Xxxxxxxxxxxxxx.xxx LLC, a
California limited liability company (the "Company"). Capitalized terms used
but not otherwise defined herein shall have the meaning ascribed to them in that
certain Purchase Agreement, dated as of May 5, 1999, by and among Educational
Simon, L.L.C., Xxxxxxx-Xxxx LLC, QTL Corporation, Xxxxxx Xxxxxxx, Xxxxxxx X.
Xxxx, Xxxxxx Xxxx Xxxx, and certain trusts named therein.
RECITALS
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A. The Company desires to enter into a management agreement with
WES&Sons for the provision of certain executive management services.
B. WES&Sons is willing and able to provide the Company with certain
executive management services, upon the terms and subject to the conditions set
forth in this Agreement.
AGREEMENT
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NOW THEREFORE, in consideration of the mutual promises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. SERVICES
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1.1 Retention. The Company hereby retains WES&Sons to provide the
Company with executive management services as provided herein. Such services
shall include consultation and advice services to the Company with respect to
operations, strategic planning, material financings, mergers and acquisitions,
corporate development and other similar aspects of the business of the Company.
WES&Sons shall provide such services as may be requested by the Company, at such
times, as may be mutually agreeable to WES&Sons and the Company. WES&Sons shall
devote such time as is reasonably necessary to provide such services.
1.2 Acceptance of Appointment. WES&Sons accepts the appointment
provided in Section 1.1 above and agrees to provide executive management
services to the Company in accordance with the terms hereof.
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SECTION 2. CONSIDERATION
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2.1 Initial Fee and Base Fee. In consideration of the executive
management services to be provided by WES&Sons to the Company under this
Agreement, the Company shall pay and WES&Sons shall be entitled to receive (i)
an initial fee of Four Hundred Thousand Dollars ($400,000), which shall be paid
at the Closing (the "Initial Fee"), and (ii) an aggregate management fee of
Three Hundred Thousand Dollars ($300,000) per year (the "Base Fee") which shall
be payable in arrears on a pro rata basis upon the completion of fifteen (15)
days following the end of each fiscal quarter. The Initial Fee and the Base Fee
shall be paid by wire transfer of immediately available funds, to such account
or accounts as shall be designated from time to time by WES&Sons. The Base Fee
shall be reviewed by the Management Committee of the Company (the "Management
Committee") and may be adjusted from time to time in the sole discretion of a
Supermajority of Representatives (as defined in the Restated Operating
Agreement); provided, however, that the Base Fee shall not exceed Six Hundred
Thousand Dollars ($600,000) at any time.
2.2 Acquisition Fee. In addition to the Initial Fee and the Base
Fee, if mutually agreed upon by WES&Sons and a Supermajority of Representatives
of the Management Committee, WES&Sons shall also be entitled to receive
additional fees (the "Acquisition Fee") for services provided in connection with
any acquisition by the Company, of assets, capital stock or other ownership
interests of an individual, corporation, partnership, limited liability company,
joint venture, or other entity. The aggregate amount of the Acquisition Fee, if
any, shall be determined on a case-by-case basis by the mutual agreement of
WES&Sons and the Company.
2.3 Expenses. In addition to the Initial Fee, the Base Fee and the
Acquisition Fee, if any, WES&Sons shall also be entitled to reimbursement for
all reasonable out-of-pocket expenses incurred by WES&Sons or its personnel in
connection with the performance of their duties hereunder, which amounts shall
be so reimbursed when invoices with respect thereto are submitted by WES&Sons to
the Company.
SECTION 3. TERM
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This Agreement shall take effect from the date hereof and shall remain
in effect until the seventh (7th) anniversary of the date of this Agreement (the
"Base Term"); provided, however, that this Agreement shall automatically
terminate upon the earlier to occur of (i) the consummation of an underwritten
public offering of equity securities of the Company or any corporation or other
entity which is a successor to the Company (other than an offering made in
connection with a compensatory benefit plan), resulting in such equity
securities being listed on a national securities exchange or the Nasdaq National
Market (or any successor thereto), (ii) the merger or consolidation of the
Company with or into another corporation or other Person or the acquisition by
another corporation or Person of all or substantially all of the Company's
assets or eighty percent (80%) or more of the Company's then outstanding voting
ownership interests or voting stock, or (iii) the liquidation or dissolution of
the Company (each such event constituting an "Early Termination" of this
Agreement). Upon such Early Termination prior to the expiration
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of the Base Term, the fees and expenses provided for in Section 2 shall be paid
through the end of the month during which such Early Termination occurs.
SECTION 4. INDEMNIFICATION
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4.1 Indemnification. The Company shall indemnify, save and hold
harmless WES&Sons and its Affiliates, to the full extent lawful, from and
against any losses, costs, expenses, liabilities, obligations, damages, claims,
lawsuits, demands or proceedings (collectively, "Losses") arising out of, in
connection with, resulting from or based upon the engagement of, or services
provided by, WES&Sons hereunder, and any transactions or conduct of WES&Sons in
connection therewith; provided, however, that this indemnity shall not apply
with respect to any Losses that are finally judicially determined to have
resulted primarily from WES&Sons' bad faith, willful misconduct or gross
negligence. The Company agrees that it will not, without the prior written
consent of WES&Sons, settle any pending or threatened claim or proceeding
related to the engagement of WES&Sons or services rendered, or transactions or
conduct of WES&Sons in connection therewith (whether or not WES&Sons is a party
to such claim or proceeding) unless such settlement includes a provision
unconditionally releasing WES&Sons and its Affiliates and holding it and them
harmless from and against any and all liability and other Losses in respect of
claims by any releasing party arising out of, in connection with, resulting from
or based upon the engagement of WES&Sons hereunder or services rendered, or
transactions or conduct of WES&Sons in connection therewith; provided, that it
is not otherwise finally judicially determined that WES&Sons acted in bad faith,
willful misconduct or gross negligence. The Company will promptly reimburse
WES&Sons for all out-of-pocket expenses (including reasonable legal fees) as
they are incurred by WES&Sons in connection with investigating, preparing or
defending, or providing evidence in, any pending or threatened claim or
proceeding in respect of which indemnification is required hereunder (whether or
not WES&Sons is a party to such claim or proceeding) or in enforcing this
Agreement. The foregoing indemnification shall be in addition to any rights
that WES&Sons may have at common law or otherwise. The provisions of this
Section 4.1 shall remain in full force and effect following the expiration or
termination of this Agreement.
4.2 Contribution. If the indemnification provided for in Section 4.1
is unavailable to WES&Sons for any reason (except for the limitations and
exclusions set forth in Section 4.1), then the Company, in lieu of indemnifying
WES&Sons, shall have an obligation to contribute to the amount paid or payable
by WES&Sons as a result of such Losses in such proportion as is appropriate to
reflect the relative fault of the Company and WES&Sons in connection with the
actions which resulted in such Losses as well as any other relevant equitable
considerations. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement or omission or any other alleged
conduct relates to information provided by WES&Sons or other conduct by WES&Sons
on the one hand or by the Company on the other hand. The amount paid or payable
by the Company as a result of the Losses referred to above shall be deemed to
include any out-of-pocket expenses (including reasonable legal fees) in
connection with investigating, preparing or defending, or providing evidence in,
any pending or threatened claim or proceeding (whether or not WES&Sons is a
party to such claim or proceeding) or in enforcing this Agreement. The Company
and WES&Sons agree that it would
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not be just and equitable if contribution pursuant to this Section 4.2 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
SECTION 5. SUBORDINATION
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5.1 WES&Sons hereby (a) acknowledges the Obligations (as defined in
the Credit Agreement) of the Company under that certain Credit Agreement dated
as of May 5, 1999, by and among Paribas, Chicago Branch, as Agent ("Agent"), the
lending institutions named therein (the "Banks") and the Company (as the same
may be amended or otherwise modified, the "Credit Agreement") and the other Loan
Documents (as defined in the Credit Agreement); and (b) agrees that, subject to
the remaining terms of this Section 5.1, so long as any of the Obligations are
outstanding, or Agent or any Bank has any commitment under the Loan Documents,
the Fees (as hereinafter defined) shall be subordinate and junior in right of
payment as provided herein to the prior payment in full of all Obligations as
provided in the Credit Agreement and the other Loan Documents. The Fees shall
not be payable, and no payment thereof shall be made or given, and no property
or guarantee of any nature to secure or pay the Fees shall be made or given,
directly or indirectly by the Company or any Debtor (as hereinafter defined) or
received, accepted, retained or applied by WES&Sons unless and until the
Obligations shall have been paid in full in cash or the Agent shall otherwise
have consented in writing, except that so long as no Event of Default (as
defined in the Credit Agreement) has occurred and is continuing, WES&Sons shall,
notwithstanding anything to the contrary set forth herein, have the right to
receive payments of the Fees made in the Ordinary Course of Business or as
otherwise permitted pursuant to the Credit Agreement. After the occurrence and
during the continuance of an Event of Default, all payments of the Fees required
to be made hereunder shall accrue (without interest thereon) and such Fees shall
be payable and paid in full on the earliest date on which such payment is no
longer restricted as a result of either, the payment and performance in full of
all Obligations or, if earlier, the date the applicable Event of Default is
cured or waived. If any portion of the Fee shall be paid to WES&Sons by any
Debtor when such payment is not permitted hereunder, such sums shall be held in
trust by WES&Sons for the benefit of Agent for the benefit of the Banks and
shall forthwith be paid to Agent and may be applied by Agent against the
Obligations in accordance with the Credit Agreement. For purposes of this
Agreement, the term "Fees" means any and all amounts payable to WES&Sons in
accordance with the provisions of Sections 2.1 and 2.2 of this Agreement. For
purposes of this Agreement, the term "Debtor" means the Company and the
Obligated Parties (as defined in the Credit Agreement). Notwithstanding the
foregoing, nothing contained in this Section 5 is intended to or will impair, as
between the Company and WES&Sons, the obligation of the Company to pay to
WES&Sons the Fees as and when the same become due and payable in accordance with
the terms hereof.
SECTION 6. MISCELLANEOUS
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6.1 Notice. Any notice required or desired to be given hereunder
shall be in writing and shall be personally served or shall be deemed given
three (3) business days after deposit in the United States mail, registered or
certified, postage and fee prepaid, one (1)
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business day after being deposited with a reputable overnight delivery courier
(e.g., Federal Express) with shipping charges prepaid, or on the day sent by
telecopy, electronic or digital transmission method (if appropriate confirmation
is received) and addressed as follows:
If to the Company:
Xxxxxxxxxxxxxx.xxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to WES&Sons:
Xxxxxxx X. Xxxxx & Sons, L.L.C.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6.2 Independent Contractor. The relationship between the parties
hereto (including that of individuals performing the contemplated services)
which is created hereunder is that of an independent contractor. This Agreement
is not intended to create and shall not be construed as creating between the
parties hereto (or such individuals) the relationship of employee, principal and
agent, joint venture, partnership, or any other similar relationship, the
existence of which is hereby expressly denied.
6.3 Successors and Assigns. Subject to the Early Termination
provisions contained in Section 3, this Agreement shall be binding upon the
successors and assigns of the parties hereto, including but not limited to any
corporation or other entity into which the Company is merged, liquidated or
otherwise combined. Section 5 hereof shall inure to the benefit of and be
binding upon Agent and the Bank and their respective successors and assigns.
This Agreement shall not be assignable without the prior written consent of the
other party hereto, by either party by operation of law or otherwise; provided,
however, that WES&Sons shall have the right to assign this Agreement to those
permitted assignees of Simon under the Restated Operating Agreement.
6.4 Amendment. This Agreement shall not be amended or modified
except by a written instrument executed by the parties; provided that Section 5
hereof shall not be amended or modified without the written consent of Agent and
the Banks.
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6.5 Prior Agreement. This Agreement shall supersede any prior
management agreement, if any, entered into by WES&Sons with the Company or any
of its subsidiaries, and any such management agreement shall be null and void
and of no further force and effect.
6.6 Governing Law. This Agreement is made under and shall be
construed in accordance with the laws of the State of California, without regard
to the conflicts of law provisions thereof.
6.7 Headings. The headings or captions of the Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
6.8 Authorization. The Company represents and warrants that this
Agreement has been duly authorized by all necessary corporate action of the
Company and, upon execution by the parties, shall be a legal, valid and
enforceable obligation of the Company, enforceable in accordance with its terms.
6.9 Attorneys' Fees. In the event of any dispute among the parties
hereto regarding this Agreement, the prevailing party shall be entitled to
recover as an element of damages the reasonable costs actually incurred to
enforce this Agreement, including the reasonable fees and disbursements of
counsel.
6.10 Counterparts. This Agreement may be executed in one or more
counterparts, any of which may be executed and transmitted by facsimile, and
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
XXXXXXXXXXXXXX.XXX LLC,
a California limited liability company
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive Officer
XXXXXXX X. XXXXX & SONS, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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