Waverly, Inc.
1997 Annual Form 10-K
Exhibit 10(C)
Agreement Between Waverly, Inc. and Xxxxx X. Xxxxxxx
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Waverly, Inc. ("Waverly") and Xxxxx X. Xxxxxxx (DJC") have discussed ways in
which DJC will assist Xxxxxxx in 1998. Such assistance shall include working
with senior management in the following areas: monthly review of 1998 results
and plans as well as longer range strategic plan for 1998-2000; merger,
acquisition, joint venture, financing, recapitalization and investment
opportunities involving Waverly ("Waverly acquisition and development
opportunities" or "Waverly A&D"); and active involvement in oversight of the
Waverly business through continued service as Chairman of the Executive
Committee. Waverly and DJC wish to continue the retainer relationship which has
been renewed annually since 1990.
Waverly shall retain DJC as a financial and business advisor at an annual
compensation rate of $50,000; retainer payment shall be made quarterly in
advance. Waverly and DJC will review quarterly the amount of time spent by DJC
on Waverly projects and mutually agree whether adjustment of the retainer amount
is appropriate for that quarter. Xxxxxxx shall reimburse all reasonable expenses
incurred by DJC in carrying out his duties under the retainer agreement.
Waverly shall, also, pay DJC for assistance with specific Waverly A&D projects.
Such additional payments (contingent or otherwise) will be determined by mutual
at the outset of each project and shall reflect the complexity and size of each
project and DJC's role.
Xxxxxxx shall have the right to determine whether it wants DJC to have an active
role in any Waverly A&D project. DJC and Waverly wish to ensure that Waverly
does not become obligated to pay double fees in any A&D transaction. The parties
shall designate Waverly A&D projects in which DJC shall participate by
memorandum agreement which shall, also, describe such additional compensation
arrangements as are mutually acceptable.
The retainer arrangement set forth herein shall have a term of one year from
January 1, 1998. Should DJC's future employment result in his not being
available to carry out his duties hereunder, either party may terminate the
retainer arrangement with retainer compensation prorated to date of termination
and with additional compensation paid where DJC has substantially completed work
on a Waverly A&D opportunity which is closed subsequent to termination.
Notwithstanding any other provision of this Agreement, Waverly and DJC agree
that retainer payments for services performed in 1998 pursuant to this Agreement
shall be deducted from payment of the $400,000 contingent fee provided for in
the November 4, 1997 letter agreement attached hereto as Exhibit A.
This amended agreement represents the renewal provided for in the November 1990
agreement with certain modifications which are acceptable to both parties.
/s/ Xxxxx X. Xxxxxxx December 12, 1997
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Xxxxx X. Xxxxxxx Date
/s/ Xxxxxxx X. Xxxxxxx, Xx. December 12, 1997
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Xxxxxxx X. Xxxxxxx, Xx. Date
EXHIBIT A
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November 4, 1997
Xxxxx X. Xxxxxxx
President
Wand Partners, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Dear Xxxxx:
As you know, in connection with your service as a director of Waverly,
Inc. ("Waverly" or the "Company"), you and Waverly have entered into the
agreement attached as Exhibit A. Pursuant to that Agreement and further to your
service as a director of Waverly, Waverly hereby confirms that is has requested
you to undertake an active role on behalf of the Company in advising and
assisting in the possible sale of Waverly, including by acting as a liaison
between the Company and Xxxxxx Xxxxxxx & Co. Incorporated. In this connection,
Xxxxxxx has agreed to pay you a contingent fee of $400,000 if (a) control of
more than 55% of the Company's common stock changes hands or (b) the Company
sells a substantial amount of its assets. In addition, Xxxxxxx will reimburse
reasonable out-of-pocket expenses. Any contingent fee will be in addition to the
retainer payments provided for in Exhibit A.
As you are aware as director of Waverly you are entitled under certain
circumstances to indemnification from the Company. Without limiting such rights,
this will confirm that if those rights do not fully indemnify you from loss in
connection with your advisory services as described above, in consideration of
your agreement to act on Xxxxxxx's behalf in connection with your engagement as
described above (the "Engagement"), we agree to indemnify and hold you harmless
from and against any losses, claims, damages or liabilities related to, arising
out of or in connection with the Engagement and will reimburse you for all
expenses (including fees and expenses of counsel) as they are incurred in
connection with investigating, preparing, pursuing or defending any action,
claim, suit, investigation or proceeding related to, arising out of or in
connection with the Engagement, Whether or not pending or threatened and whether
or not you are a party. Waverly will not, however, be responsible for any
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from your bad faith or gross
negligence. The Company also agrees that you shall have no liability (whether
direct or indirect, in contract or tort or otherwise) to us for or in connection
with the Engagement except for any such liability for losses, claims, damages or
liabilities incurred by us that are finally judicially determined to have
resulted from your bad faith or gross negligence.
We will not, without your prior written consent, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any
action, claims, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not you are a party thereto) unless such
settlement, compromise, consent or termination includes a release of you from
any liabilities arising out of such action, claim, suit or proceeding. In
seeking indemnification, reimbursement or contribution under this agreement you
will not, without our prior written consent, settle, compromise, consent to the
entry of any judgment in or otherwise seek to terminate any action, claims, suit
investigation or proceeding referred to in the preceding paragraph.
If the indemnification provided for in the first paragraph of this
agreement is judicially determined to be unavailable (other than in accordance
with the terms hereof) to you in respect of any losses, claims, damages or
liabilities referred to herein, then, in lieu of indemnifying you, we shall
contribute to the amount paid or payable by you as a result of such losses,
claims, damages or liabilities (and expenses relating thereto) (i) in such
proportion as is appropriate to reflect the relative benefits to you, on the one
hand, and us, on the other hand, of the Engagement or (ii) if the allocation
provided by clause (i) above is not available, in such proportion as is
appropriate to reflect not only the relative benefits referred to in such clause
(i) but also the relative fault of each of you and us, as well as any other
relevant equitable considerations; provided, however, in no event shall your
aggregate contribution to the amount paid or payable exceed the aggregate amount
of fees actually received by you under the terms of this agreement as described
above. For the purposes of this agreement, the relative benefits to us and you
of the Engagement 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 us or our stockholders, as the case may be, in the transaction or
transactions that are the subject of the Engagement, whether or not any such
transaction is consummated, bears to (b) the fees paid or to be paid to you as
described above.
The provisions of this agreement shall apply to the Engagement and any
modification thereof and shall remain in full force and effect regardless of any
termination by you or us or the completion of your services.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts executed in and to be
performed in that state.
Very truly yours,
WAVERLY, INC.
By: /s/Xxxxxx X. Xxxxxx Xx.
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Xxxxxx X. Xxxxxx, Xx.
Accepted:
By: /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Date: November 14, 1997
AGREEMENT
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By Mutual consent of Waverly, Inc. and Xxxxx X. Xxxxxxx the Agreement
between Waverly, Inc. and Xxxxx X. Xxxxxxx dated December 12, 1997 (the
"Retainer Agreement") is hereby terminated and canceled effective at the
Effective Time (as defined in the Merger Agreement) of the Agreement and Plan of
Merger by and among MP Acquisition Corp., Wolters Kluwer U.S. Corporation and
Waverly Inc. dated as of February 10, 1998 (the "Merger Agreement").
In the event the Effective Time fails to occur for any reason, the
Retainer Agreement will continue in full force and effect.
Agreed to and accepted:
Xxxxx X. Xxxxxxx
By: /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Waverly, Inc.
By: /s/Xxxxxxx X. Xxxxxxx Xx.
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Xxxxxxx X. Xxxxxxx Xx.
