EXHIBIT 10.49
IRON AGE HOLDINGS CORPORATION
IRON AGE CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of the 3rd day of
September, 2002 (the "Effective Date") by and between Fenway Partners Resources,
Inc., a Delaware corporation ("FPR"), Iron Age Corporation, a Delaware
corporation (the "Company") and Iron Age Holdings Corporation, a Delaware
corporation (the "Parent").
WHEREAS, subject to the terms and conditions of this Agreement, the
Company and the Parent desire to retain FPR to provide certain consulting and
advisory services to the Company and the Parent, and FPR desires to provide such
services;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. SERVICES. FPR hereby agrees that, during the term of this Agreement,
it will provide the Company and the Parent with financial, managerial and
operational advice.
2. COMPENSATION.
a. Consulting Fee. During the term of this Agreement, the Company and the
Parent agree to pay a fee (the "Fee") in the aggregate amount of fifty thousand
dollars ($50,000) per year, prorated for any period less than a full year. The
Fee shall be paid quarterly, no later than 30 days following the close of the
preceding fiscal quarter. The Fee will be subject to review and adjustment from
time to time upon mutual agreement of the Company, the Parent and FPR.
b. Expenses. The Company and the Parent agree agrees to pay all
out-of-pocket expenses incurred by FPR directly in connection with the provision
of services hereunder; provided, however, that FPR shall properly account
therefor in accordance with the requirements for federal income tax
deductibility and the policies and procedures of the Company and the Parent.
Upon the timely submission of documentation for such expenses, reimbursements
shall be paid by the Company and the Parent quarterly, no later than 30 days
following the close of the preceding fiscal quarter. FPR expressly agrees that
expenses consisting of employee salaries, rent and other overhead expenses of
FPR are not subject to reimbursement under this Section 2(b) and shall be borne
exclusively by FPR.
3. TERM AND TERMINATION.
a. Term. The term of this Agreement shall be for the period commencing on
the Effective Date and expiring on the date on which termination is effective
pursuant to the provisions of Section 3(b) (the "Termination Date"). For all
purposes of this Agreement, references to the "term hereof" and "the term of
this Agreement" shall mean the period commencing on the Effective Date and
ending on the Termination Date.
b. Early Termination. This Agreement may be terminated as follows:
(i) FPR may terminate this Agreement with 60 days prior written
notice; provided, however, that the boards of directors of the Company and the
Parent may elect to waive the period of notice, or any portion thereof, provided
that the Company and the Parent shall continue to pay the Fee through the notice
period or portion thereof so waived;
(ii) the Company or the Parent may terminate this Agreement upon
notice to FPR; and
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(iii) this Agreement shall terminate automatically upon the earliest
date upon which Fenway Partners, Inc. ("Fenway") and its Affiliates shall cease
to retain, directly or indirectly, the power to elect or cause the election of a
majority of the board of directors of the Company and of the Parent.
c. Effect of Termination.
(i) Any and all accrued and unpaid obligations of the Company and of
the Parent owed under Section 2 shall survive any termination of this Agreement.
(ii) Effective as of the termination of this Agreement, the Agents
of FPR shall be removed from all offices and positions held with the Company,
the Parent or any of its Affiliates unless determined otherwise by Fenway.
4. DEFINITIONS.
a. The following capitalized terms used in this Agreement shall have the
meanings set forth below.
"Affiliates" shall mean with respect to any Person, all other Persons and
entities directly or indirectly controlling, controlled by or under common
control with such Person, where control may be by management authority, equity
interest or otherwise.
"Agents" shall mean with respect to any Person, the partners, members,
managers, shareholders, Affiliates, directors, officers, fiduciaries, employees
or agents of such Person.
"Person" shall mean an individual, partnership, corporation, association,
trust, joint venture, limited liability company, unincorporated organization or
entity, or any government, governmental department or agency or political
subdivision thereof.
b. Certain terms used in this Agreement have the meanings given them in
the following Section or Sections:
Term Section
---- -------
Agreement Preamble
FPR Preamble
Company Preamble
Effective Date Preamble
Fee Section 2(a)
Fenway Section 3(b)(iii)
Parent Preamble
Termination Date Section 3(a)
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5. ASSIGNMENT, ETC. No party shall have the right to assign this
Agreement without the prior written consent of the other two parties.
6. AMENDMENTS AND WAIVERS. No amendment or waiver of any term, provision or
condition of this Agreement shall be effective, unless mutually agreed upon by
each of the Company, the Parent and FPR. No waiver on any one occasion shall
extend to or effect or be construed as a waiver of any right or remedy on any
future occasion. No course of dealing of any Person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this Agreement
or a waiver of any right or remedy of any party hereto.
7. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of New York without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
8. MERGER/ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes any prior
communication, agreement or understanding (written or oral) with respect
thereto.
9. NOTICE. All notices, demands, and communications of any kind which any party
may require or desire to serve upon any other party under this Agreement shall
be in writing and shall be served upon such other party and such other party's
copied Persons as specified below by personal delivery to the address set forth
for it below or to such other address as such party shall have specified by
notice to each other party or by mailing a copy thereof by certified or
registered mail, or by Federal Express or any other reputable overnight courier
service, postage prepaid, with return receipt requested, addressed to such party
and copied Persons at such addresses. In the case of service by personal
delivery, it shall be deemed complete on the first business day after the date
of actual delivery to such address. In case of service by mail or by overnight
courier, it shall be deemed complete, whether or not received, on the third day
after the date of mailing as shown by the registered or certified mail receipt
or courier service receipt. Notwithstanding the foregoing, notice to any party
or copied Person of change of address shall be deemed complete only upon actual
receipt by an officer or agent of such party or copied Person.
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If to FPR, to it at:
Fenway Partners Resources, Inc.
c/o Fenway Partners, Inc.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
If to the Company or to the Parent, to it at:
Iron Age Corporation
Iron Age Holdings Corporation
Xxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
With a copy to:
c/o Fenway Partners, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
With an additional copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
10. SEVERABILITY. If in any judicial or arbitral proceedings a court or
arbitrator shall refuse to enforce any provision of this Agreement, then such
unenforceable provision shall be deemed eliminated from this Agreement for the
purpose of such proceedings to the extent necessary to permit the remaining
provisions to be enforced. To the full extent, however, that the provisions of
any applicable law may be waived, they are hereby waived to the end that this
Agreement be deemed to be valid and binding agreement enforceable in accordance
with its terms, and in the event that any provision hereof shall be found to be
invalid or unenforceable, such provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent consistent with and possible
under applicable law.
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11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by each of the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
FPR: FENWAY PARTNERS RESOURCES, INC.
By_______________________________
Xxxx Xxxxxxxx
President
THE COMPANY: IRON AGE CORPORATION
By_______________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer and President
THE PARENT: IRON AGE HOLDINGS CORPORATION
By_______________________________
Xxxxxxx X. Xxxxx
President
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