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EXHIBIT 10(a)
XXXXXX INDUSTRIES
MANAGEMENT AGREEMENT
FOR FRUIT OF THE LOOM, INC.
This Management Agreement (the "Agreement") is made as of January 1, 1995
by and among Xxxxxx Industries, Inc., a Delaware corporation ("FII"), and Fruit
of the Loom, Inc., a Delaware corporation ("FOL") and each of its subsidiaries
(FOL and its subsidiaries are referred to herein, individually and
collectively, as the "Company").
R E C I T A L S
WHEREAS, the Company desires to retain FII to provide the Company with
legal, financial, accounting and other management and advisory services for the
period January 1, 1995 through December 31, 1995 (the "Term of this
Agreement"); and
WHEREAS, FII has provided such services in the past and has agreed to
provide such services during the Term of this Agreement; and
WHEREAS, FII and the Company desire to enter into a written agreement
evidencing the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. MANAGEMENT SERVICES
1.1 The Company hereby retains FII to provide the Company with such
general management services ("Management Services") as the Company may request,
and FII agrees to provide the Management Services during the Term of this
Agreement. The Management Services shall include the following:
(1) Financial advice and services, including, without limitation,
assistance with respect to matters such as cash management, treasury and
financial controls;
(2) Legal advice and services;
(3) Advice and services concerning foreign and domestic taxes,
including, without limitation, assistance in preparation of tax returns;
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(4) Auditing, accounting, and bookkeeping advice and services,
including, without limitation, assistance in preparation of financial
statements and disclosure documents related to reporting requirements
under state and federal securities laws;
(5) Corporate planning and corporate development advice and services;
(6) Human resources and personnel advice and services, including,
without limitation, administration of pension and other employee benefit
plans and compliance with state and federal labor laws;
(7) Public relations and press relations advice and services; and
(8) Such other advice and services necessitated by the ordinary
course of the Company's business, as the Company may reasonably request
from time to time.
Notwithstanding the foregoing, "Management Services" do not include any of the
services described in Articles 2, 3 or 4 hereof.
1.2 (a) In consideration of FII's provision of Management Services, the
Company agrees to pay FII a fee (the "Management Fee") in an amount equal to
the Cost of Management Services (as defined below) provided, however, that in
no event shall the Company be responsible for more than $8.6 million plus the
cost of benefits granted to FII employees under the 1995 Fruit of the Loom,
Inc. Executive Incentive Compensation Plan (which includes short-term bonus
payments, long-term bonus payments and supplemental executive retirement
program benefits) less FII Affiliate Management Fees (as defined below). For
purposes of this Agreement, the "Cost of Management Services" shall mean the
costs necessarily incurred by FII during 1995 in the proper performance of (i)
the Management Services and (ii) other management services performed for the
FII Affiliates (as hereinafter defined) (collectively, the "Services"). The
term "Cost of Management Services" shall include the following expenses
necessarily incurred by FII in connection with the performance of the Services:
(i) salaries, benefits and other compensation of FII's
officers (other than Xxxxxxx Xxxxxx) and other FII
employees; provided, however, that payments related
to the 1995 Fruit of the Loom, Inc. Executive
Incentive Compensation Plan to such FII officers and
employees which relate to services provided in 1995
but which are not paid until 1996
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shall be included within the Cost of Management
Services;
(ii) reasonable out-of-pocket transportation and traveling
expenses and long distance phone calls, facsimile and
messenger charges;
(iii) costs of materials, supplies and capital expenditures
incurred in the normal course of FII's business;
(iv) overhead or general expenses, including rental
charges;
(v) costs of outside services including those described
in Section 1.2(c) below; and
(vi) other costs incurred in the performance of Management
Services.
For purposes of this Agreement, the term "Cost of Management Services"
shall not include:
(i) salary, bonus and other compensation of Xxxxxxx
Xxxxxx;
(ii) transportation, traveling, entertainment and any
other expenses of Xxxxxxx Xxxxxx, other than (A) such
expenses incurred on behalf of FII Affiliates in the
ordinary course of their respective businesses and
(B) costs of providing office space, administrative
services and other customary services to Xxxxxxx
Xxxxxx;
(iii) interest payments on borrowed money;
(iv) costs due to the gross negligence or willful
misconduct of FII or any of its officers, employees
or agents;
(v) costs of any item not specifically and expressly
included in the items set forth in this Section
1.2(a); or
(vi) costs in excess of $14 million, as such amount may be
increased or decreased to reflect any adjustment to
the anticipated $3.1 million of benefits to be
distributed to FII employees under the 1995 Fruit of
the Loom, Inc. Executive Incentive Compensation
Plan.
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For purposes of this Agreement, the term "FII Affiliate Management
Fees" shall mean the management fees and expense reimbursements paid to FII by
the FII Affiliates (as hereinafter defined, other than the Company) for
management services performed during 1995.
(b) The Management Fee shall be payable as follows:
(i) One-twelfth of the estimated Management fee
($908,333) shall be payable on the first day of each
month during the Term of this Agreement (based upon
an estimated $10.9 million Management Fee for 1995);
and
(ii) within thirty days after the close of the 1995
calendar year, FII shall furnish to the Company a
statement (the "FII Statement") detailing the Cost of
Management Services. The FII Statement shall be
accompanied by a certificate signed by each of the
President and the Chief Financial Officer of FII
stating that the FII Statement is valid and correct
in accordance with the books and records of FII. The
Company and FII shall reconcile the amount of
payments made to FII pursuant to this Section 1.2(b)
with the amount of the Management Fee which is
payable based upon the Cost of Management Services
and FII Affiliate Management Fees. Upon such
reconciliation, FII or the Company, as the case may
be, shall provide such refunds or additional payments
as are then appropriate.
(c) FII shall keep full and detailed records of its costs
and expenses incurred during 1995. The Board of Directors of the Company shall
be afforded full access to all of FII's records, books, correspondence,
vouchers and similar data relating to its costs and expenses incurred during
1995. FII shall employ independent auditors and shall furnish the Company a
report in form satisfactory to the Company. If a disagreement occurs as to the
Cost of Management Services, the disagreement shall be submitted to Ernst &
Young whose decision shall be final and binding.
2. INVESTMENT BANKING SERVICES
2.1 In connection with the direct or indirect acquisition or
disposition by the Company of the assets or operations of any business or
entity, whether by purchase or sale of stock or assets, merger or
consolidation, or otherwise, FII agrees to provide appropriate investment
banking, financial, accounting, legal and other services for such transactions
("Investment Banking Services") as requested by the Company. Nothing in this
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Article 2 shall prohibit the Company from hiring any other third party advisers
to provide Investment Banking Services and this Agreement does not create an
exclusive right in favor of FII to perform such services.
2.2 In consideration of FII's provision of Investment Banking
Services, the Company shall pay a fee established by FII and determined by FII
to be reasonable in relation to (i) the size and complexity of the transaction,
and (ii) the fees customarily charged by other advisors for similar
Investment Banking Services; provided, such fee shall not exceed two percent
(2%) of the total consideration paid or received by the Company, as the case
may be, in the subject transaction. Fees for Investment Banking Services shall
be payable to FII upon the closing of the subject transaction.
2.3 If FII shall provide Investment Banking Services for a
transaction which is not consummated, FII shall establish a reasonable fee for
the services FII has provided, which may be based upon engagement or similar
fees other advisers in such or similar transactions received or would receive.
3. FINANCING SERVICES
3.1 In connection with the arrangement by the Company of public or
private debt financing (including letter of credit facilities), FII agrees to
provide financial, accounting, legal and other services for such transaction
("Financing Services") as requested by the Company. Nothing in this Article 3
shall prohibit the Company from hiring any other third party advisers to
provide Financing Services and this Agreement does not create an exclusive
right in favor of FII to perform such services.
3.2 In consideration of FII's provision of Financing Services, the
Company shall pay a fee established by FII and determined by FII to be
reasonable in relation to (i) the size and complexity of the transaction, and
(ii) the fees customarily charged by other advisors for similar Financing
Services; provided, such fee shall not exceed two percent (2%) of the aggregate
amount available for borrowing or use under the subject agreement or facility.
Fees for Financing Services shall be payable to FII upon the closing of the
subject agreement or facility.
3.3 If FII shall provide Financing Services for a financing which
is not consummated, FII shall establish a reasonable fee for the services FII
has provided, which may be based upon engagement or similar fees other advisers
in such or similar financing received or would receive.
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4. OTHER SERVICES
4.1 Fees for financial, accounting, legal and advisory services
rendered by FII to the Company outside the ordinary course of the Company's
business which do not come within the scope of Sections 2 or 3 hereof shall be
provided upon terms as agreed upon by the Company and FII in writing.
5. OTHER TERMS
5.1 FII Represents and warrants to the Company as follows:
(a) FII is a corporation duly organized and validly
existing under the laws of the State of Illinois with full corporate power and
authority to execute and deliver this Agreement. FII has the full legal right,
power and capacity, and all authority and approval required to execute and
deliver this Agreement and to perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by FII and constitutes a valid and legally binding agreement of FII,
enforceable against FII in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and subject as to enforceability to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(c) The execution and delivery by FII of this Agreement
and the performance of its obligations hereunder will not (i) require the
consent, waiver, order, registration, qualification, authorization or approval
of, from or with any governmental or regulatory authority, domestic or foreign,
or of any other individual, partnership, corporation, trust or other entity
(collectively, "Person"), (ii) conflict with or result in any breach or
violation of any of the terms or conditions or provisions of, or constitute
(or, with notice or lapse of time or both, constitute) a default under (1) the
Articles of Incorporation or By-laws of FII; (2) any federal, state, local or
foreign statute, regulation, order, judgment or decree of any court, arbitrator
or governmental or regulatory instrumentality applicable to FII or (3) any
instrument, contract or other agreement to which FII is a party or by or to
which FII is bound or subject.
(d) The budget previously presented to the Company by FII
is based on reasonable assumptions of management of FII as to the costs and
expenses to be incurred by FII during 1995.
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(e) FII is engaged in the business of providing
management services to the Company and "affiliates" (as such term is defined in
Section 15 of the Securities Act of 1933) of Xxxxxxx Xxxxxx (collectively, the
"FII Affiliates") and does not conduct any other business or provide services
to any other Person.
5.2 The Company represents and warrants to FII as follows:
(a) The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware, with full power and
authority to execute and deliver this Agreement. The Company has the full
legal right, power and capacity, and all authority and approval required to
execute and deliver this Agreement and to perform all its obligations
hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding agreement
of the Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors rights generally and subject as to enforceability to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) The execution and delivery by the Company of this
Agreement and the performance of its obligations hereunder will not (i) require
the consent, waiver, order, registration, qualification, authorization or
approval of, from or with any governmental or regulatory authority, domestic or
foreign, or of any other person, (ii) conflict with or result in any breach or
violation of the terms or conditions or provisions of, or constitute (or, with
notice or lapse of time or both, constitute) a default under (1) the Articles
of Incorporation or By-laws of the Company, (2) any federal, state, local or
foreign statue, regulation, order, judgment or decree of any court, arbitrator
or governmental or regulatory instrumentality applicable to the Company, or (3)
any instrument, contract or other agreement to which the Company is a party or
by or to which the Company is bound or subject.
6. ADDITIONAL AGREEMENTS
During the term of this Agreement, FII shall engage in the business of
providing management services to FII Affiliates and shall not conduct any other
business or provide services to any other Person.
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7. OTHER TERMS
7.1 This Agreement expires on December 31, 1995, except Section 1.2,
7.3 and 7.6 shall survive.
7.2 The personnel of FII who provide services to the Company
hereunder will be designated solely by FII and shall remain employees of FII.
It is understood that neither FII nor any of its employees shall be required to
devote their energies full time to the provision of services hereunder and that
FII may and intends to furnish similar services to other FII Affiliates.
7.3 Except as otherwise provided herein or required under applicable
law, the Company and FII agree to maintain as confidential and not to disclose
to any third party any and all information provided by one party to the other
or otherwise obtained by one party from the other in the performance of this
Agreement (other than information which is a matter of public knowledge or has
otherwise become publicly available).
7.4 FII acknowledges that it and its personnel may, during the course
of provision of services hereunder, gain possession or control of books,
records, instruments, data and other information pertaining to the Company
which may prove necessary or desirable to the Company in connection with its
business (collectively, "Information"). Accordingly, FII agrees to provide the
Company, upon the Company's written request, full and complete access
(including access to persons or firms possessing Information), and all such
Information the Company may reasonably require in the conduct of its business,
including Information sought for audit, accounting, litigation or tax purposes
or proceedings. The Company agrees to provide FII with full and complete
access to any and all Company records, data (both financial and operational)
and persons which FII may reasonably require to perform the Management Services
contemplated by this Agreement.
7.5 FII and its personnel shall have no liability to the Company on
account of any advice or services which are rendered to the Company hereunder
if such advice or services were rendered in good faith; provided, this
limitation shall not apply to advice or actions deemed to have been grossly
negligent in a final judgment by a court of competent jurisdiction from which
no appeal can be or has been taken.
7.6 The Company agrees to indemnify and hold harmless FII, the
directors, officers, agents, employees, legal representatives and affiliates of
FII, and each Person, if any, controlling FII or any of its affiliates within
the meaning of Section 15 of the Securities Act of 1933 (an "Indemnified
Party"), from and against any and all losses, claims, damages and liabilities,
joint or several, caused by, related to or arising out of FII acting for
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or providing services to the Company pursuant to this Agreement, and to
reimburse any Indemnified Party for all reasonable expenses (including
Attorneys' fees) incurred by the Indemnified Party in connection with the
investigation, preparation or defense of any such action or claim, whether or
not in connection with any pending or threatened litigation, to which such
Indemnified Party is subject; provided, however, that the Company shall not
have any obligation for any such losses, claims, damages, liabilities or
expenses that are found, in a final judgment by a court of competent
jurisdiction from which no appeal can be or has been taken, to have resulted
principally from the Indemnified Party's bad faith, gross negligence or willful
misconduct. The Indemnified Party agrees to notify the Company promptly of the
assertion of any claim or the commencement of any action or proceeding relating
to this indemnity, but the Indemnified Party's failure to so notify the Company
shall not relieve the Company from any obligation or liability which the
Company may have pursuant to this Agreement to the extent that the Company has
not been prejudiced in any material respect by such failure. The Indemnified
Party shall have the right to retain counsel of its own choice to represent it
and such counsel shall, to the fullest extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated by the
Company. The Company shall not be liable under this Agreement for any
settlement of any claim against the Indemnified Party made without the
Company's written consent, which consent will not be unreasonably withheld.
The foregoing rights are in addition to any rights that the Indemnified Party
may have at common law or otherwise.
7.7 This Agreement shall be governed by and construed under the laws
of the State of Illinois.
7.8 This Agreement may be executed in one or more counterparts, each
of which will be deemed an original and which together shall constitute one and
the same instrument.
7.9 This Agreement sets forth the entire understanding of the parties
with respect to FII's rendering of the services which are the subject hereof.
Neither this Agreement nor any provision hereof may be modified, waived,
terminated or amended other than by the express written agreement of FII and
the Company.
7.10 This Agreement may not be assigned by either party without the
consent of the other but shall be binding upon and inure to the benefits of the
parties and their respective successor and assigns upon any assignment so
permitted.
7.11 In the event that any provision of this Agreement shall be held
to be, in whole or in part, void or unenforceable, the remaining provisions of
this Agreement, and the remaining
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portion of any provision held void or unenforceable in part, shall continue in
full force and effect.
7.12 Except as otherwise specifically provided herein, notices
required hereunder shall be deemed given when delivered personally, or when
deposited with a bonded overnight courier or five (5) days after being
deposited as registered or certified United States mail, postage prepaid, in
each case to the address of the party for whom intended at the principal
executive offices of such party set forth below, or at such other address as
such party may hereafter specify by written notice to the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their proper officers as of the date first written above.
FRUIT OF THE LOOM, INC. XXXXXX INDUSTRIES, INC.
5000 Sears Tower 5000 Sears Tower
Chicago, Illinois 60606 Xxxxxxx, XX 00000
By: ________________________ By: _________________________
Vice President Vice President
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