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EXHIBIT 10.16
FORM OF MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (the "Agreement") dated as of October 7, 1999
is made by and between Crown Books Corporation (the "Company") and by its
subsidiary(ies); or collectively (the "Companies"), and Zolfo Xxxxxx Management,
LLC (the "Manager") a New Jersey limited liability company, and is made in
addition to the already existing retention of Zolfo Xxxxxx, LLC by Crown Books
Corporation and the Engagement Letter dated July 14, 1999.
RECITALS:
WHEREAS, the parties hereto desire to enter into this Agreement to set
forth the basis on which the Manager will perform management services for the
Company, all as set forth more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants set forth
herein, and intending to be legally bound hereby, the parties to this Agreement
hereby agree as follows:
1. Engagement. The Company hereby engages the Manager as an
independent contractor to the Company, and the Manager hereby accepts such
engagement, on the terms and conditions set forth in this Agreement. The Company
is hereby acquiring from the Manager the services of a Senior Member of Zolfo
Xxxxxx Management ("Senior Member") as set forth below. All compensation for the
services and actions of Senior Member under this Agreement will be paid to
Manager.
2. Duties.
(a) The Company represents to the Manager that the United
States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
has entered an order, dated October 7, 1999 (the "Confirmation Order") appended
hereto and incorporated herein by reference approving Senior Member as the
responsible officer of the Company. The Manager will assign Senior Member to
serve as Acting Chief Executive Officer and other staff to perform other
services required of the Manager hereunder.
(b) Pursuant to and except as limited by the terms of the
Confirmation Order, Senior Member shall be authorized to make decisions with
respect to all aspects of the management and operation of the Company's
business, including without limitation organization and human resources,
marketing and sales, logistics, finance and administration and such other areas
as he may identify, in such manner as he deems necessary or appropriate in his
sole discretion consistent with the business judgment rule and the provisions of
Delaware law and the United States Bankruptcy Code applicable to the obligations
of persons acting on behalf of corporations. Neither Senior Member nor other
staff (individually, a, "Representative" and collectively, the
"Representatives") shall have any authority to make decisions with respect to
executing transactions or otherwise committing the Company or its resources
other than in the ordinary course of business unless approved by the Bankruptcy
Court (if prior to the Effective
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Date), or otherwise approved by the board of directors of Reorganized Crown (if
after the Effective Date).
(c) The Manager shall cause Senior Member to devote
substantially all of his business time to the performance of services for the
Company hereunder on behalf of the Manager. The Manager shall not be obligated
to cause Senior Member to be available to perform services hereunder for any
specific minimum number of hours during any period, it being understood that
Senior Member shall be obligated to furnish such hours of service as he deems
necessary in his sole discretion to perform his duties on behalf of the Manager
hereunder.
(d) In undertaking to provide the services set forth herein,
the Manager does not guarantee or otherwise provide any assurances that it will
succeed in restoring the Company's operational and financial health and
stability and, except for the amount referenced in Section 4(b) hereof, the
Company's obligation to provide the compensation specified under Section 4
hereof shall not be conditioned upon any particular results being obtained by
the Manager.
(e) In view of the Company's present circumstances, the Company
acknowledges that Senior Member may be required to make decisions with respect
to extraordinary measures quickly and that the depth of his analyses of the
information on which his decisions will be based may be limited in some respects
due, to the availability of information, time constraints and other factors.
Moreover, each Representative shall be entitled, in performing his duties
hereunder on behalf of the Manager, to rely on information disclosed or supplied
to them without verification or warranty of accuracy or validity.
3. Term. The term of the Manager's engagement hereunder shall
commence on the date hereof and shall continue on a month to month basis until
terminated by either party at the end of any such mouth upon written notice to
the other party given at least ten days prior to the end of such month.
Notwithstanding the foregoing, the Manager's obligation to provide interim
management services pursuant to Section 2 hereof is conditioned upon until this
Agreement being approved by the Bankruptcy Court.
4. Compensation. The Manager's compensation hereunder shall consist
of the following:
(a) a monthly fee of $75,000 cash payable in immediately
available funds upon execution of this Agreement and on the first day of each
month thereafter throughout the term hereof commencing on October 1, 1999,
through March 31, 2000; and after which date such monthly fee will be $85,000;
(b) options for 100,000 shares of stock in the Reorganized
Crown at the lesser of $2.50/share or the mean average trading price over the
first 20 calendar days (the "Exercise Price"). If a permanent Chief Executive
Officer is not found and should ZCM still be retained as of January 1, 2000, ZCM
shall be entitled to receive an additional 5,000 share options, at the Exercise
Price in Reorganized Crown stock, payable on the first day of the month.
Thereafter, on a monthly basis, ZCM will be entitled to receive options for
shares in Reorganized Crown stock at the Exercise Price of $2.00 per share with
such share options increasing in
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increments of 2,500 shares per mouth (i.e., on February 1, 2000, ZCM will be
entitled to receive an additional 7,500 share options, on March 1, 2000 ZCM will
be entitled to receive an additional 10,000 share options, etc.) until
termination of the ZCM Management Agreement provided that from and after April,
2000, ZCM shall be entitled to 20,000 share options per month at the Exercise
Price; and
(c) reimbursement of the Manager's reasonable out-of-pocket
expenses including, but not limited to, costs of travel, reproduction, typing,
computer usage, legal counsel (including legal counsel retained to draft and
enforce this Agreement), any applicable state sales or excise tax and other
direct expenses.
The Company shall pay to the Manager the compensation set forth in Sections 4(a)
and 4(c) hereof based upon the submission of monthly invoices by the Manager
setting forth the number of hours each day expended by the Representatives on
behalf of the Company, a general description of the services provided and a
detailed listing of the expenses sought to be reimbursed. The Manager shall be
required to file a final fee application at the end of the Chapter 11 cases
involving the Company with respect to all amounts paid pursuant to this
Agreement prior to the Effective Date. The compensation provided for in this
Agreement shall constitute full payment for the services to be rendered by the
Manager to the Company hereunder.
5. Confidentiality.
(a) The Company(ies) shall treat any information received from
the Manager or a Representative as confidential and, except as specified in this
Section 5(a), will not publish, distribute or otherwise disclose in any manner
any information developed by or received from the Manager or a Representative
without the Manager's or such Representative's prior written approval. Such
approval shall not be required if either (i) the information sought is required
to be disclosed by an order binding on the Manager or a Representative and
issued by a court having competent jurisdiction over the Manager and such
Representative and such information is disclosed only pursuant to the terms of
such order or (ii) the information is otherwise publicly available other than
through disclosure by a party in breach of a confidentiality obligation with
respect thereto.
(b) The Manager and each Representative agrees to treat any
information received from the Company or its representatives with utmost
confidentiality, and except as provided in this letter, will not publish,
distribute or disclose in any manner any information developed by or received
from the Company or its representatives without the Company's prior approval.
Such approval shall not be unreasonably withheld. The Company's approval is not
needed if either the information sought is required to be disclosed by an order
binding on ZCM, issued by a court having competent jurisdiction over ZCM (unless
such order specifies that the information to be disclosed is to be placed under
seal), or such information is otherwise publicly available.
6. Representations and Warranties. As an inducement to the Manager to
enter into this Agreement, the Company represents and warrants to the Manager as
follows:
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(a) The Company is a corporation duly organized and validly
existing under the laws of the jurisdiction in which it was organized and has
all requisite corporate power to enter into this Agreement.
(b) Subject to receipt of the approval by the Bankruptcy Court
of the execution by the Company of this Agreement, neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
herein or therein nor compliance by the Company with any of the provisions
hereof or thereof will: (i) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to it or (ii) require the consent,
approval, permission or other authorization of, or qualification or filing with
or notice to, any court, arbitrator or other tribunal or any governmental,
administrative, regulatory or self-regulatory agency or any other third party.
(c) Subject to receipt of the approval by the Bankruptcy Court
of the execution by the Company of this Agreement, this Agreement has been duly
authorized, executed and delivered by the Debtor and constitutes the legal,
valid and binding agreement of the Company, enforceable in accordance with its
terms.
(d) No oral representation made or document furnished to the
Manager by any officer, employee or other representative of the Company contains
any untrue statement of a material fact or omits to state a fact necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to the Company that materially
and adversely affects or that may reasonably and foreseeably be expected to
materially or adversely affect the business, operations, affairs, conditions,
prospects or properties of the Company that has not been communicated to the
Manager prior to the date hereof.
7. Indemnification.
(a) The Company(ies) shall indemnify and hold harmless the
Manager and its principals, employees, representatives or agents (including
counsel) (collectively, the "Manager Indemnitees") from and against any and all
losses, claims, damages, liabilities, penalties, judgments, awards, costs, fees,
expenses and disbursements, including without limitation, the costs, fees,
expenses and disbursements, as and when incurred, of investigating, preparing or
defending any action, suit, proceeding or investigation (whether or not in
connection with proceedings or litigation in which any Manager Indemnitee is a
party) (any such amount being hereinafter sometimes referred to as an
"Indemnifiable Loss"), directly or indirectly caused by, relating to, based
upon, arising out of or in connection with this engagement of the Manager by the
Company(ies) or the performance by the Manager of any services rendered pursuant
to such engagement to the same extent as if Manager were an officer and director
of the Company in accordance with Crown's bylaws and Articles of Incorporation.
(b) If any Manager Indemnitee is required to testify at any
time after the expiration or termination of this Agreement at any administrative
or judicial proceeding relating to any services provided by the Manager
hereunder, then the Manager shall be entitled to be compensated by the Company
for the Manager's associated time charges at the regular hourly
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rates in effect at the time and to be reimbursed for reasonable out-of-pocket
expenses, including counsel fees.
(c) The Company has furnished to Manager a true, correct and
complete copy of the Directors, Officers and Corporate Liability Insurance
Policy No. 90000396 (the "Policy") issued to the Company by Lloyd's of London
(the "Insurer"). The Company represents that the Policy is in full force and
effect and that no event has occurred that constitutes or, with the passage of
time or notice would constitute, an event of default thereunder or that would
otherwise give the Insurer any right to cancel such Policy. Promptly and in any
event within two business days after the Bankruptcy Court shall have entered an
order approving this Agreement, the Company shall notify the Insurer of the
appointment of Senior Member as Responsible Officer of the Company. The Company
shall cause its insurance broker to send copies of all documentation and other
communications regarding the Policy, including without limitation any renewal or
cancellation thereof, to the attention of Senior Member. The Company shall
maintain directors and officers liability insurance coverage comparable as to
terms (including without limitation the provisions of clause 10 of the Policy or
any similar provision regarding extension of the discovery period thereunder)
and amounts as that provided under the Policy during the term of this Agreement,
with any such replacement coverage being obtained from an insurer with a rating
from a nationally recognized rating agency not lower than that of the Insurer.
Upon any cancellation or nonrenewal of the Policy by the Insurer, the Company
shall exercise its rights under clause 10 of the Policy to extend the claim
period for a one-year "discovery period" and shall exercise such rights and pay
the premium required thereunder within the 30-day period specified therein. The
Company shall use commercially reasonable efforts, in connection with the next
renewal of the Policy, to negotiate to extend the discovery period set forth in
clause 10 of the Policy from one to three years.
8. Independent Contractor. The parties intend that the Manager shall
render services hereunder as an independent contractor, and nothing herein shall
be construed to be inconsistent with this relationship or status. The Manager
shall not be entitled to any benefits paid by the Company to its employees. The
Manager shall be solely responsible for any tax consequences applicable to the
Manager by reason of this Agreement and the relationship established hereunder,
and the Company shall not be responsible for the payment of any federal, state
or local taxes or contributions imposed under any employment insurance, social
security, income tax or other tax law or regulation with respect to the
Manager's performance of management services hereunder. The parties agree that,
subject to the terms and provisions of this Agreement, the Manager may perform
any duties hereunder and set the Manager's own work schedule without day-to-day
supervision by the Company.
9. Offer of Employment. The Company(ies) agree(s) to promptly notify
ZCM if it extends (or solicits the possible interest in receiving) an offer of
employment to an employee or principal of ZCM and agrees that it will pay ZCM a
fee equal to 150% of the aggregate first year's annualized compensation,
including any guaranteed or target bonus, to be paid to ZCM's former principal
or employee that the Company hires at any time up to one year subsequent to the
date of the final invoice rendered by ZCM with respect to this Management
Agreement.
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10. Trial. The Company(ies) agree(s) that neither it nor any of
its assignees or successors shall (a) seek a jury trial in any lawsuit,
proceeding, counterclaim or any other action based upon, or arising out of or in
connection with the engagement of ZCM by the Company(ies) or any services
rendered pursuant to such engagement, or (b) seek to consolidate any such action
with any other action in which a jury trial cannot be or has not been waived.
The provisions of this paragraph have been fully discussed by the Company and
ZCM and these provisions shall be subject to no exceptions. Neither party has
agreed with or represented to the other that the provisions of this section will
not be fully enforced in all instances.
11. Jurisdiction. The Company(ies) hereby irrevocably and
unconditionally (a) submit(s) for itself and its property in any legal action or
proceeding relating to the engagement of ZCM by the Company or any services
rendered pursuant to such engagement, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the Courts of the United States of
America for the Southern District of New York, and appellate courts from any
thereof; (b) consent(s) that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same; (c) agree(s) that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Company at its
address set forth above or at such other address of which ZCM shall have been
notified pursuant thereto; (d) agree(s) that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and (e) waive(s), to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this subsection any special,
exemplary or punitive or consequential damages.
12. Survival of Agreement. Except as provided in this Agreement, the
obligations set forth under the above captioned Confidentiality,
Indemnification, Compensation, Offer of Employment, Trial, and Jurisdiction
sections shall survive the expiration, termination, or supersession of this
agreement.
13. Conflicts. ZCM confirms that none of the principals or staff
members of ZCM or of its affiliates, Zolfo Xxxxxx, LLC, and Zolfo Xxxxxx
Capital, LLC has any financial interest or business connection with the Company,
and ZCM is aware of no conflicts in connection with this agreement herein or the
United States Trustee or anyone employed in the Office of the United States
Trustee or holds or represents any interest adverse to any such party except
that ZCM is connected with the Company by virtue of this agreement and ZCM may
represent or have represented certain of the Company's creditors or other
parties-in-interest herein, or interests adverse to such creditors or other
parties in interest herein, in matters unrelated to these cases, other than the
fact that Zolfo Xxxxxx, LLC (an affiliate of ZCM) is currently engaged by Crown
Books Corporation as Special Financial Advisors and Bankruptcy Consultants. It
is anticipated that such retention will be concurrent with the retention of ZCM.
Xxxxxxxx Capital Management (an affiliate of which owns approximately 30% of
Crown's unsecured claims) has agreed to support fall payment of Zolfo Xxxxxx,
LLC's professional fees and expenses incurred in the Crown case and payment of a
bonus of options for 100,000 shares
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of stock in the reorganized Crown, such amounts will be in addition to the
compensation provisions outlined in Section 4 of the Management Agreement.
Additionally, Xxxxxx X. Xxxxxxx, Principal of Zolfo Xxxxxx Management, LLC and
Zolfo Xxxxxx, LLC, has agreed to serve on the Board of Directors of the
Reorganized Crown.
14. Amendments. Any amendment to this Agreement shall be made in
writing and signed by the parties hereto.
15. Enforceability. If any provision of this Agreement shall be
invalid or unenforceable, in whole or in part, then such provision shall be
deemed to be modified or restricted to the extent and in the manner necessary to
render the same valid and enforceable, or shall be deemed excised from this
Agreement, as the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law as if such provision had been
originally incorporated herein as so modified or restricted or as if such
provision had not been originally incorporated herein, as the case may be.
16. Construction. This Agreement shall be construed and interpreted
in accordance with the internal laws of the State of New York.
17. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by certified mail, postage
prepaid; by an overnight delivery service, charges prepaid; or by confirmed
telecopy; addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by the addressee to the
addressor:
If to the Company:
Crown Books Corporation
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
if for ZCM:
Zolfo Xxxxxx Management, LLC
0000 Xxxxx 00 Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change
shall be deemed to have been given until it is actually received by the party
sought to be charged with its contents.
18. Waivers. No claim or right arising out of a breach or default
under this Agreement shall be discharged in whole or in part by a waiver of that
claim or right unless the waiver is supported by consideration and is in writing
and executed by the aggrieved party hereto
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or his or its duly authorized agent. A waiver by any party hereto of a breach or
default by the other party hereto of any provision of this Agreement shall not
be deemed a waiver of future compliance therewith, and such provisions shall
remain in full force and effect.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of
the date first above written.
CROWN BOOKS CORPORATION
By:
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Name:
Title:
ZOLFO XXXXXX MANAGEMENT, LLC
By:
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Name:
Title:
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