EXHIBIT 10.20
MANAGEMENT AGREEMENT
This Management Agreement (this "AGREEMENT") is entered into as of the 19th
day of December, 2003, by and between Xxxxxxx Company, a Delaware corporation
(the "COMPANY"), and THL Managers V, LLC, a Delaware limited liability company
(the "SPONSOR").
WHEREAS, certain affiliates of Xxxxxx X. Xxx Partners, L.P. ("THL")
have provided equity financing to the Company's indirect parent, THL Bedding
Holding Company, a Delaware corporation ("HOLDINGS"), pursuant to that certain
Contribution Agreement dated as of December 19, 2003, by and among Holdings and
the persons listed on the signatures pages thereto.
WHEREAS, Holdings' indirect subsidiary, THL Bedding Company ("THL
BEDDING") entered into that certain Stock Purchase Agreement by and among THL
Bedding, Xxxxxxx Holdings, Inc. and the sellers party thereto, dated as of
November 17, 2003, and THL Bedding entered into that certain ESOP Stock Sale
Agreement by and among THL Bedding, Xxxxxxx Holdings, Inc. and State Street Bank
and Trust Company, dated as of November 21, 2003, pursuant to which, as of the
date hereof, THL Bedding acquired all of the outstanding shares of Xxxxxxx
Holdings, Inc. (the "ACQUISITION").
WHEREAS, immediately following the Acquisition, THL Bedding merged with
and into Xxxxxxx Holdings, Inc. and Xxxxxxx Holdings, Inc. merged with and into
Xxxxxxx Company, with Xxxxxxx Company as the surviving entity.
WHEREAS, the Sponsor has staff specifically skilled in corporate
finance, strategic corporate planning, and other management skills and advisory
services.
WHEREAS, the Company will require the Sponsor's special skills and
management advisory services in connection with its business operations and
execution of its strategic plan.
WHEREAS, the Sponsor is willing to provide such skills and services to
the Company.
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. The Sponsor hereby agrees that if, during the term
of this Agreement (the "TERM"), the Company reasonably and specifically requests
that the Sponsor provide the services set forth below and the Sponsor agrees to
provide such services, the Sponsor or one of its affiliates will provide the
following services to the Company and its subsidiaries:
(a) advice in connection with the negotiation and consummation of
agreements, contracts, documents and instruments related to the Company's
finances or relationships with banks or other financial institutions; or
(b) advice with respect to the development and implementation of
strategies for improving the operating, marketing and financial performance of
the Company, and other senior management matters related to the business,
administration and policies of the Company.
The Sponsor shall have no obligation to the Company as to the method or
timing of services rendered hereunder, and the Company shall not have any right
to dictate or direct the details of the performance of services by the Sponsor
rendered hereunder.
The parties hereto expressly acknowledge that the services to be
performed hereunder by the Sponsor shall not include investment banking or other
financial advisory services rendered by Sponsor or its affiliates to the Company
in connection with any specific acquisition, divestiture, refinancing or
recapitalization by the Company or any of its subsidiaries for which the Sponsor
may be entitled to receive additional compensation by mutual agreement of the
Company or its subsidiary and the Sponsor. This Agreement shall in no way
prohibit the Sponsor or any of its affiliates or any of their respective
partners (both general and limited), members (both managing and otherwise),
officers, directors, employees, agents or representatives from engaging in other
activities, whether or not competitive with any business of the Company of any
of its affiliates.
2. Payment of Fees. In exchange for the Sponsor's arrangement of
the equity financing and agreement to provide the services set forth herein, the
Company hereby agrees to pay to the Sponsor (or its designee) the following
fees:
(a) a transaction fee in connection with the transactions
contemplated in the Stock Purchase Agreement payable at the Closing (as defined
in the Stock Purchase Agreement) of $20,000,000; and
(b) a management fee (the "FEE") equal to the greater of
(i) $1,500,000 per year or (ii) 1.0% of Consolidated EBITDA (as defined in the
Credit and Guaranty Agreement dated as of December 19, 2003 by and among the
Lenders from time to time party thereto, Xxxxxxx Sachs Credit Partners L.P., UBS
Securities LLC, Deutche Bank A.G., Cayman Islands Branch, the Company and
certain of the subsidiaries of the Company, as the same may be amended,
modified, renewed, refunded, replaced or refinanced from time to time) before
deducting the Fee payable pursuant to this Section 2(b) ("ADJUSTED EBITDA"),
commencing at the Closing. The Fee shall be payable semi-annually in advance
(based on the prior year's Adjusted EBITDA) on January 2nd and July 2nd of each
year, with an adjustment of the Fee for any fiscal year payable promptly
following the determination of Adjusted EBITDA for such fiscal year or on
termination of this Agreement. The first installment of the Fee shall be payable
at the Closing. The initial Fee shall be for the period through July 2, 2004 and
shall include a pro rata portion of the 2003 fiscal year based on the number of
days in the 2003 fiscal year following the Closing. All references to "per
annum" or "annual" herein refer to the fiscal year of the Company.
Each payment made pursuant to this Section 2 shall be paid by wire
transfer of immediately available funds to the accounts specified on Exhibit A
attached hereto, or to such other account(s) as each Sponsor may specify in
writing to the Company.
3. Term. This Agreement shall be effective as of the date hereof
and shall continue in full force and effect, unless and until (a) terminated by
the Sponsor, (b) terminated automatically on the date which the Sponsor and its
affiliates no longer beneficially owns at least twenty percent
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(20%) of the equity securities of Holdings, or (c) terminated by the Sponsor
upon the consummation of any public offering of the equity securities of the
Company or Holdings. Upon any termination of this Agreement, each of (A) the
obligations of the Company under Section 4 below, (B) any and all owed and
unpaid obligations of the Company under Section 2 above and (C) the provisions
of Section 7 shall survive any termination of this Agreement to the maximum
extent permitted under applicable law. In the event that the Sponsor terminates
this Agreement in accordance with clause (c) above of this Section, the Company
agrees to pay the Sponsor a cash lump-sum termination fee equal to the net
present value of the fees that would have been payable to such Sponsor (but for
the termination hereof) pursuant to Section 2(b) hereof for a period of seven
(7) years from the date of such termination calculated using a discount rate
equal to the ten-year treasury rate on the date of such termination. Such
termination fee shall be payable by wire transfer of immediately available funds
within ten (10) days after the date of termination to the account specified on
Exhibit A attached hereto, or to such other account(s) as the Sponsor may
specify in writing to the Company. As used herein, the term "PERSON" shall be
construed in the broadest sense and means and includes a natural person, a
partnership, a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
any other entity and any federal, state, municipal, foreign or other government,
governmental department, commission, board, bureau, agency or instrumentality,
or any private or public court or tribunal.
4. Expenses; Indemnification.
(a) Expenses. In addition to the fees set forth in Section 2
hereof, the Company agrees to pay on demand all reasonable costs and expenses
incurred by the Sponsor and their affiliates or any of them in connection with
this Agreement and in connection with performing services hereunder including
but not limited to air travel charged at charter equivalent rates, legal,
consulting, out of pocket and other expenses, including but not limited to the
fees and disbursements of Weil, Gotshal & Xxxxxx LLP, counsel to the Sponsor,
and any other consultants or advisors retained by the Sponsor or its respective
counsel arising in connection therewith, including but not limited to the
preparation, negotiation and execution of this Agreement, the performance of
services hereunder (including, without limitation, fees and expenses of
independent professionals, research, transportation and per diem costs).
(b) Indemnity and Liability. The Company will indemnify and hold
harmless the Sponsor, its affiliates and their respective partners (both general
and limited), members (both managing and otherwise), officers, directors,
employees, agents and representatives (each such Person being an "INDEMNIFIED
PARTY") from and against any and all losses, claims, damages and liabilities,
whether joint or several, expenses of any nature (including reasonable
attorneys' fees and disbursements), judgments, fines, settlements and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
whether civil, criminal, administrative, arbitral or investigative, in which an
Indemnified Party was involved or may be involved, or threatened to be involved,
as a party or otherwise (the "LIABILITIES"), related to, arising out of or in
connection with the advisory and consulting services contemplated by this
Agreement or the engagement of the Sponsor pursuant to, and the performance by
the Sponsor of the services contemplated by, this Agreement, and any other
action taken by an Indemnified Party on behalf of the Company in connection with
this Agreement, whether or not pending or threatened, whether or not resulting
in any liability and whether or not such action, claim, suit, investigation or
proceeding is initiated or brought by the Company. The Company will reimburse
any Indemnified Party for all reasonable costs and expenses (including
reasonable attorneys' fees and expenses) as they are incurred in
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connection with investigating, preparing, pursuing, defending or assisting in
the defense of any action, claim, suit, investigation or proceeding for which
the Indemnified Party would be entitled to indemnification under the terms of
the previous sentence, or any action or proceeding arising therefrom, whether or
not such Indemnified Party is a party thereto, provided that, subject to the
following sentence, the Company shall be entitled to assume the defense thereof
at its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment. Any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense, and in any action, claim, suit,
investigation or proceeding in which both the Company and/or one or more of its
subsidiaries, on the one hand, and an Indemnified Party, on the other hand, is,
or is reasonably likely to become, a party, such Indemnified Party shall have
the right to employ separate counsel at the expense of the Company and to
control its own defense of such action, claim, suit, investigation or proceeding
if, in the reasonable opinion of counsel to such Indemnified Party, a conflict
or potential conflict exists between the Company, on the one hand, and such
Indemnified Party, on the other hand, that would make such separate
representation advisable. The Company agrees that it will not, without the prior
written consent of the applicable Indemnified Party, settle, compromise or
consent to the entry of any judgment in any pending or threatened claim, suit,
investigation, action or proceeding relating to the matters contemplated hereby
(if any Indemnified Party is a party thereto or has been threatened to be made a
party thereto) unless such settlement, compromise or consent includes an
unconditional release of the applicable Indemnified Party and each other
Indemnified Party from all liability arising or that may arise out of such
claim, suit, investigation, action or proceeding. Provided the Company is not in
breach of its indemnification obligations hereunder, no Indemnified Party shall
settle or compromise any claim subject to indemnification hereunder without the
consent of the Company. The Company will not be liable under the foregoing
indemnification provision with respect to any Indemnified Party, to the extent
that any loss, claim, damage, liability, cost or expense is determined by a
court, in a final judgment from which no further appeal may be taken, to have
resulted primarily from the gross negligence or willful misconduct by an
Indemnified Party. If an Indemnified Party is reimbursed hereunder for any
expenses, such reimbursement of expenses shall be refunded to the extent it is
finally judicially determined that the Liabilities in question resulted
primarily from the gross negligence or willful misconduct of such Indemnified
Party.
The Company agrees that if any indemnification sought by any
Indemnified Party pursuant to this Section 4 is unavailable for any reason or is
insufficient to hold the Indemnified Party harmless against any Liabilities
referred to herein, then the Company shall contribute to the Liabilities for
which such indemnification is held unavailable or insufficient in such
proportion as is appropriate to reflect the relative benefits received (or
anticipated to be received) by the Company, on the one hand, and the Indemnified
Party, on the other hand, in connection with the transactions which gave rise to
such Liabilities or, if such allocation is not permitted by applicable law, not
only such relative benefits but also the relative faults of the Company, on the
one hand, and the Indemnified Party, on the other hand, as well as any other
equitable considerations, subject to the limitation that in any event the
aggregate contribution by the Indemnified Parties to all Liabilities with
respect to which contribution is available hereunder shall not exceed the fees
actually received by the Sponsors in connection with the transaction which gave
rise to such Liabilities (excluding any amounts paid as reimbursement of
expenses).
5. Assignment, etc. Except as provided below, neither the Company
nor the Sponsor shall have the right to assign this Agreement. The Sponsor
acknowledges that its services under this Agreement are unique. Accordingly, any
purported assignment by the Sponsor shall be void.
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Notwithstanding the foregoing, the Sponsor may assign all or part of its rights
and obligations hereunder to any affiliate of such Sponsor which provides
services similar to those called for by this Agreement.
6. Amendments and Waivers. No amendment or waiver of any term,
provision or condition of this Agreement shall be effective, unless in writing
and executed by the Sponsor and the Company. 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. Miscellaneous.
(a) Choice of Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive laws of The Commonwealth
of Massachusetts 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.
(b) Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of or based upon this Agreement or the
subject matter hereof shall be brought and maintained exclusively in the federal
and state courts of The Commonwealth of Massachusetts. Each of the parties
hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of
the federal and state courts in The Commonwealth of Massachusetts for the
purpose of any action, suit or proceeding arising out of or based upon this
Agreement or the subject matter hereof and (ii) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any claim that it
is not subject personally to the jurisdiction of the above-named courts, that it
is immune from extraterritorial injunctive relief or other injunctive relief,
that its property is exempt or immune from attachment or execution, that any
such action, suit or proceeding may not be brought or maintained in one of the
above-named courts, that any such action, suit or proceeding brought or
maintained in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred to any court other than one of the
above-named courts, should be stayed by virtue of the pendency of any other
action, suit or proceeding in any court other than one of the above-named
courts, or that this Agreement or the subject matter hereof may not be enforced
in or by any of the above-named courts. Each of the parties hereto hereby
consents to service of process in any such suit, action or proceeding in any
manner permitted by the laws of The Commonwealth of Massachusetts, agrees that
service of process by registered or certified mail, return receipt requested, at
the address specified in or pursuant to Section 10 is reasonably calculated to
give actual notice and waives and agrees not to assert by way of motion, as a
defense or otherwise, in any such action, suit or proceeding any claim that
service of process made in accordance with Section 10 does not constitute good
and sufficient service of process. The provisions of this Section 7(b) shall not
restrict the ability of any party to enforce in any court any judgment obtained
in a federal or state court of The Commonwealth of Massachusetts.
(c) Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES,
AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT, OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
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RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT HEREOF, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR
OTHERWISE. Each of the parties hereto acknowledges that it has been informed by
each other party that the provisions of this Section 7(c) constitute a material
inducement upon which such party is relying and will rely in entering into this
Agreement and the transactions contemplated hereby. Any of the parties hereto
may file an original counterpart or a copy of this Agreement with any court as
written evidence of the consent of each of the parties hereto to the waiver of
its right to trial by jury.
8. Independent Contractor. The parties agree and understand that
the Sponsor is and shall act as an independent contractor of the Company in the
performance of its duties hereunder. The Sponsor is not, and in the performance
of its duties hereunder will not hold itself out as, an employee, agent or
partner of the Company.
9. Merger/Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any prior communication or agreement with respect thereto.
10. 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.
If to the Company, to it at:
Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer and General Counsel
Telecopier: 000-000-0000
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If to Sponsor, to it at:
THL Managers V, LLC
c/o Xxxxxx X. Xxx Partners, L.P.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxx Xxxxxxxx
Mr. Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
11. 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 a 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.
12. 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.
13. Headings. All descriptive headings in this Agreement are
inserted for convenience only and shall be disregarded in construing or applying
any provision of this Agreement.
14. Prevailing Party. If any legal action or other proceedings is
brought for a breach of this Agreement or any of the warranties herein, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
other costs incurred in bringing such action or proceeding, in addition to any
other relief to which such party may be entitled.
* * * * *
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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.
XXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
and CFO
THL MANAGERS V, LLC
By: Xxxxxx X. Xxx Partners, L.P., its
Managing Member
By: THL Equity Advisors V, L.P., its
General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Management Agreement
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EXHIBIT A
Wire Instructions
THL Managers V, LLC
FleetBoston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX
ABA #000000000
Account Name: THL Managers V, LLC
Account #270-07242
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