AGREEMENT
This Agreement made and entered into this 18th day of October, 1998 by and
between BRC Holdings, Inc. a Delaware corporation (the "Company") and Xxxx
Xxxxxxx ("Xxxxxxx").
WITNESSETH:
WHEREAS, with the knowledge of the Board of Directors of the Company (the
"Board"), Xxxxxxx has from time to time in the past sought expressions of
interest from one or more third parties regarding acquisition by such parties of
all of the issued and outstanding equity securities of the Company; and
WHEREAS, Xxxxxxx has provided certain additional services to the Company in
connection with the activities contemplated in the foregoing resolution,
including making himself personally available for discussions with third parties
regarding the Company, its businesses, assets and affairs and coordinating
efforts of the Company's management in providing information to third parties;
and
WHEREAS, as a result of Xxxxxxx'x services, the Company expects to receive
a proposal from a third party relating to the acquisition by that third party of
all of the Company's issued and outstanding equity securities; and
WHEREAS, a disinterested majority of the Board, after full and fair
discussion of all matters relating thereto, has unanimously determined that
Xxxxxxx is entitled to receive, as compensation for his efforts in obtaining
proposals on behalf of certain consideration described below, under the
circumstances set forth.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES, the Company and Xxxxxxx
agree as follows:
1. As payment for services rendered to the Company in connection with
soliciting the interest of third parties in entering into a transaction with the
Company, including obtaining and sustaining the interest of certain third
parties in making such an acquisition and assisting in the negotiation of the
agreement relating thereto, the Company agrees to pay to Xxxxxxx a cash fee of
$1,300,000 as provided in paragraph 2 below.
2. The case fee referred to in paragraph 1 above shall be paid to Xxxxxxx
within two business days after the consummation of a Transaction that occurs
prior to December 31, 2000. For purposes of this agreement, a "Transaction"
shall be deemed to have been consummated upon the earliest of the following
events to occur: (a) the acquisition of at least a majority of the
outstanding common stock of the Company by any person or entity unaffiliated
with the Company as of the date hereof, (b) a merger, consolidation or other
business combination of the Company with by any person or entity unaffiliated
with the Company as of the date hereof or (c) the acquisition by any person or
entity unaffiliated with the Company as of the date hereof of not less than a
majority of the assets of the Company.
3. As Xxxxxxx has been acting on behalf of the Company, the Company
agrees to the indemnification and other obligations set forth in Schedule I
attached hereto, which schedule is an integral part hereof.
4. This agreement shall be binding upon and inure to the benefit of the
Company and Xxxxxxx and their respective successors and assigns.
IN WITNESS WHEREOF, this Agreement is entered into the day and year first
above written.
BRC HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: President and Chief Operating Officer
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
2.
SCHEDULE I
This Schedule I is a part of and is incorporated into that certain
agreement (together, the "Agreement"), dated October 18, 1998, by and between
BRC Holdings, Inc. (the "Company") and Xxxx Xxxxxxx ("Xxxxxxx").
The Company agrees to indemnify and hold harmless Xxxxxxx and his
affiliates, (each such entity or person an "Indemnified Person") from and
against any losses, claims, damages, judgements, assessments, costs and other
liabilities (collectively, "Liabilities"), and will reimburse each
Indemnified Person for all fees and expenses (including the reasonable fees
and expenses of counsel) (collectively, "Expenses") as they are incurred in
investigating, preparing, pursuing or defending any claim, action, proceeding
or investigation, whether or not in connection with pending or threatened
litigation or arbitration and whether or not any Indemnified Person is a
party (collectively, "Actions"), arising out of or in connection with advice
or services heretofore tendered or to be rendered by any Indemnified Person
in connection with this Agreement, the transactions contemplated hereby or
any Indemnified Person's actions or inactions in connection with any such
advice, services or transactions; provided that the Company will not be
responsible for any Liabilities or Expenses of any Indemnified Person that
are determined by a judgement of a court of competent jurisdiction which is
no longer subject to appeal or further review to have resulted solely from
such Indemnified Person's gross negligence or willful misconduct in
connection with any of the advice, actions, inactions or services referred to
above. The Company also agrees to reimburse each Indemnified Person for all
Expenses as they are incurred in connection with enforcing such Indemnified
Person's rights under this Agreement (including, without limitation, its
rights under this Schedule I).
Upon receipt by an Indemnified Person of actual notice of an Action against
such Indemnified Person with respect to which indemnity may be sought under
this Agreement, such Indemnified Person shall promptly notify the Company in
writing; provided that failure so to notify the Company shall not relieve the
Company from any liability which the Company may have on account of this
indemnity or otherwise, except to the extent the Company shall have been
materially prejudiced by such failure. The Company shall, if requested by
Xxxxxxx, assume the defense of any such Action including the employment of
counsel reasonably satisfactory to Xxxxxxx. Any Indemnified Person shall
have the right to employ separate counsel in any such Action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person, unless: (i) the Company has failed
promptly to assume the defense and employ counsel or (ii) the named parties
to any such Action (including any impleaded parties) include such Indemnified
Person and the Company, and such Indemnified Person shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the Company; provided
that the Company shall not in such event be responsible hereunder for the
fees and expenses of more than one firm of separate counsel in connection
with any Action in the same jurisdiction, in addition to any local counsel.
The Company shall not be liable for any settlement of any Action effected
without its written consent. In addition, the Company will not, without prior
written consent of Stoffel, settle, compromise or
consent to the entry of any judgement in or otherwise seek to terminate any
pending or threatened Action in respect of which indemnification or contribution
may be sought hereunder (whether or not any Indemnified Person is a party
thereto) unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified person from all Liabilities arising
out of such Action.
In the event that the foregoing indemnity is unavailable to an Indemnified
Person other than in accordance with this Agreement, the Company shall
contribute to the Liabilities and Expenses paid or payable by such
Indemnified Person in such proportion as is appropriate to reflect (i) the
relative benefits to the Company and its shareholders, on the one hand, and
to Xxxxxxx, on the other hand, of the matters contemplated by this Agreement
or (ii) if the allocation provided by the immediately preceding clause is not
permitted by the applicable law, not only such relative benefits but also the
relative fault of the Company, on the one hand, and Xxxxxxx, on the other
hand, in connection with the matters as to which such Liabilities and
Expenses relate, as well as any other relevant equitable considerations;
provided that in no event shall the Company contribute less than the amount
necessary to ensure that all Indemnified Persons, in the aggregate, are not
liable for any Liabilities and Expenses in excess of the amount of fees
actually received by Xxxxxxx pursuant to this Agreement. For purposes of
this paragraph, the relative benefits to the Company and its shareholders, on
the one hand, and to Xxxxxxx, on the other hand, of the matters contemplated
by this Agreement shall be deemed to be in the same proportion as (a) the
total value paid or contemplated to be paid or received or contemplated to be
received by the Company or the Company's shareholders, as the case may be, in
the transaction or transactions that are within the scope of this Agreement,
whether or not any such transaction is consummated, bears to (b) the fees
paid to Xxxxxxx under this Agreement.
The Company also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with advice or services rendered or to be rendered by any
Indemnified Person pursuant to this Agreement, the transactions contemplated
hereby or any Indemnified Person's actions or inactions in connection with any
such advice, services or transactions except for Liabilities (and related
Expenses) of the Company that are determined by a judgement of a court of
competent jurisdiction which is no longer subject to appeal or further review to
have resulted solely from such Indemnified Person's gross negligence or willful
misconduct in connection with any such advice, actions, inactions or services.
The reimbursement, indemnity and contribution obligations of the Company
set forth herein shall apply to any modification of this Agreement and shall
remain in full force and effect regardless of any termination of, or the
completion of any Indemnified Person's services under or in connection with,
this Agreement.
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