Exhibit 10.29
JLC Learning Corporation
9920 Pacific Heights Blvd., Suite 500
San Diego, CA 92121
November 17, 1999
Ripplewood Holdings L.L.C.
One Rockefeller Plaza
32nd Floor
New York, New York 10020
ATTENTION: Timothy C. Collins
Dear Sirs:
JLC Learning Corporation, a Delaware corporation (the
"Company"), hereby agrees with you as follows:
1. The Company hereby retains Ripplewood Holdings L.L.C., a
Delaware limited liability company ("Ripplewood"), to provide management
consulting and financial advisory services commencing on the date hereof. Among
the specific services the Company has asked Ripplewood to perform are: (1)
assisting in the raising of additional debt and equity capital from time to time
for the Company; (2) identifying qualified individuals to serve as members of
the Board of Directors of the Company; (3) pursuing strategic alliances with
companies to help ensure the Company's growth and strength; (4) assisting the
Company in its long-term strategic planning generally; and (5) providing such
other management consulting and financial advisory services as the Company may
reasonably request.
2. In consideration of providing the foregoing services,
beginning in the first calendar quarter of 2001, the Company agrees to pay to
Ripplewood a fee of $37,500 per quarter, payable quarterly in arrears. The
Company also agrees to reimburse Ripplewood promptly for Ripplewood's reasonable
out-of-pocket costs and expenses incurred in connection with the performance of
Ripplewood's services hereunder.
3. (a) The Company agrees to indemnify, defend and hold
harmless Ripplewood and its affiliates and each of their respective directors,
stockholders, advisory directors, officers, members, employees and agents (each
of Ripplewood and such affiliates, directors, stockholders, advisory directors,
officers, members, employees, and agents being herein referred to as an
"Indemnitee") from and against all claims, obligations, liabilities, causes of
action, actions, suits, proceedings, judgments, decrees, losses, damages, fees,
costs and expenses (including without
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limitation interest, penalties and reasonable fees and disbursements of
attorneys, accountants and investment bankers) (collectively, "Obligations") in
any way resulting from, arising out of, based upon or relating to the
performance by Ripplewood of management consulting and financial advisory
services to the Company pursuant to this agreement, except to the extent any
such Obligation results from the gross negligence or wilful misconduct by
Ripplewood or such Indemnitee.
(b) If for any reason the indemnity provided for in Section
3(a) is unavailable or is insufficient to hold harmless any Indemnitee from any
of the Obligations covered by such indemnity, then the Company agrees to
contribute to the amount paid or payable by such Indemnitee as a result of such
Obligation in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and such Indemnitee, on the other, in connection
with the state of facts giving rise to such Obligation and if required by
applicable law, any other relevant equitable considerations.
(c) For purposes of Section 3(b), the relative fault of the
Company, on the one hand, and of the Indemnitee, on the other, shall be
determined by reference to, among other things, their respective relative
intent, knowledge, access to information and opportunity to correct the state of
facts giving rise to such Obligation. The parties hereto acknowledge and agree
that it would not be just and equitable if contributions pursuant to Section
3(b) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in such
Section.
(d) Whenever any Indemnitee shall have received a notice of
any claim or the commencement of any action against such Indemnitee involving
any Obligation with respect to which such Indemnitee may be entitled to be
defended and indemnified by the Company under this agreement (a "Claim"),
Ripplewood (acting on behalf of itself or any such Indemnitee other than itself)
shall notify the Company in writing of the Claim (the "Notice of Claim") with
reasonable promptness after Ripplewood has been notified of such Claim by such
Indemnitee or a third party. The failure of Ripplewood to give such Notice of
Claim shall not relieve the Company of its indemnification obligations under
this agreement except to the extent that the Company is materially prejudiced as
a result of the failure to give such Notice of Claim in a timely manner. The
Company shall, at its expense, undertake the defense of such Claim with
attorneys selected by it; PROVIDED that such counsel is
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reasonably satisfactory to Ripplewood. Ripplewood may participate in such
defense and employ its own counsel, but the fees and expenses of such counsel
shall be at the expense of Ripplewood; PROVIDED that the fees and expenses of
counsel will be at the expense of the Company if (i) the employment of counsel
by Ripplewood has been authorized by the Company, (ii) Ripplewood has reasonably
concluded (based on advice of counsel to Ripplewood) that there may be legal
defenses available to it or any other Indemnitee that are different from or in
addition to those available to the Company or (iii) Ripplewood has been advised
by its counsel that there may be a conflict of interest between the Company and
Ripplewood or any other Indemnitee in the conduct of the defense, or certain
aspects of the defense, of such Claim (in which case the Company shall not have
the right to direct the defense of such action with respect to those matters or
aspects of the defense on which a conflict exists or may exist on behalf of
Ripplewood or any other Indemnitee). It is understood that the Company shall
not, in connection with any proceeding in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm of attorneys at any one
time for Ripplewood. In the event that the Company fails to undertake the
defense of a Claim within a reasonable time after Ripplewood has given the
Notice of Claim, Ripplewood may, at the expense of the Company and after giving
notice to the Company of such action, undertake the defense of the Claim and
compromise or settle the Claim, all for the account of and at the risk of the
Company. In the case of a Claim against an Indemnitee other than Ripplewood, in
the event that neither the Company nor Ripplewood undertakes the defense of such
Claim within a reasonable time as provided above, such Indemnitee may, at the
expense of the Company and after giving notice to the Company and Ripplewood of
such action, undertake the defense of such Claim and compromise or settle such
Claim, all for the account of and at the risk of the Company. In the defense of
any Claim, the Company shall not, except with the consent of Ripplewood, consent
to the entry of any judgment or enter into any settlement unless such judgment
or settlement obligates the Company to pay the full amount of the liability in
connection with such Claim, releases Ripplewood and each other Indemnitee
completely in connection with such Claim and would not otherwise adversely
affect Ripplewood or each other Indemnitee. Ripplewood and each other Indemnitee
seeking indemnification hereunder shall cooperate with the Company, so long as
the Company is conducting the defense of the Claim, in the preparation for and
the prosecution of the defense of such Claim. Such cooperation shall include the
retention and (upon the Company's reasonable request) the provision to the
Company's of records and information that are reasonably relevant to
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such Claim and making employees of Ripplewood or such Indemnitee, as the case
may be, available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. The cost of any
such cooperation by Ripplewood or any other Indemnitee, to the extent such costs
have been pre-approved by the Company, shall be paid by the Company.
(e) Each Indemnitee shall notify the Company in writing of the
amount of any Claim actually paid by such Indemnitee (the "Notice of Payment").
The amount of any Claim actually paid by such Indemnitee shall bear simple
interest at the rate equal to the prime rate most recently set forth in The Wall
Street Journal as of the date of such payment from the date the Company receives
the Notice of Payment to the date on which the Company shall repay the amount of
such Claim plus interest to such Indemnitee.
(f) The rights of each Indemnitee to be indemnified under any
other agreement, document, certificate or instrument or applicable law are
independent of and in addition to any rights of such Indemnitee to be
indemnified under this agreement. The rights of each Indemnitee and the
obligations of the Company hereunder shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnitee. The
Company shall implement and maintain in full force and effect any and all
provisions in its certificate of incorporation and by-laws that may be necessary
or appropriate to enable it to carry out its obligations hereunder to the
fullest extent permitted by the Delaware General Corporation Law.
4. (a) This agreement may be terminated by Ripplewood upon 5
days' prior written notice to the Company.
(b) The provisions of this agreement, except for the
provisions of Section 1 and Section 2, shall survive any termination of this
agreement.
(c) Upon any consolidation or merger, or any conveyance,
transfer or lease of all or substantially all of the assets of the Company, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, the Company under this agreement with the same effect as
if such successor corporation had been a party thereto. No such consolidation,
merger or conveyance, transfer or lease of all or substantially all of the
assets of the Company shall have the effect of terminating this agreement or of
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releasing the Company or any such successor corporation from
its obligations hereunder.
(d) Upon any termination of this agreement, any accrued and
unpaid installment of the fee or portion thereof payable pursuant to Section 2
(pro rated, with respect to the quarter in which such termination occurs, for
the portion of such quarter that precedes such termination), and any unpaid and
unreimbursed expenses that shall have been incurred prior to such termination
(whether or not such expenses shall then have become payable), shall be
immediately paid or reimbursed, as the case may be, by the Company. In the event
of the liquidation of the Company, all amounts due Ripplewood hereunder shall be
paid to Ripplewood before any liquidating distributions or similar payments are
made to stockholders of the Company.
5. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand or sent
by facsimile or sent, postage prepaid, by registered, certified or express mail
or reputable overnight courier service and shall be deemed given when so
delivered by hand or facsimile, or if mailed, three days after mailing (one
business day in the case of overnight courier service), as follows:
(i) if to the Company, to it at:
JLC Learning Corporation
9920 Pacific Heights Blvd., Suite 500
San Diego, CA 92121
Attention:
Facsimile: (619) 646-6444
(ii) if to Ripplewood, to it at:
One Rockefeller Plaza
32nd Floor
New York, New York 10020
Attention: Timothy C. Collins
Charles L. Laurey
Telefax: 212-582-4110
With a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention: Peter S. Wilson, Esq.
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Telephone: (212) 474-1767
Telefax: (212) 765-0978
or to such other address or such other person as the Company or Ripplewood, as
the case may be, shall have designated by notice to the other party hereto.
6. This agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and permitted assigns, and each
other Indemnitee, but neither this agreement nor any right, interest or
obligation hereunder shall be assigned by the Company without the prior written
consent of Ripplewood. This agreement is not intended to confer any right or
remedy hereunder upon any person other than each of the parties hereto and their
respective successors and permitted assigns and each other Indemnitee. This
agreement may be amended, modified or supplemented only by a written instrument
executed by all of the parties hereto. Any waiver of any term or provision
hereof must be in writing and signed by the party entitled to the benefits of
such term or provision, and no waiver of a failure to observe any term or
provision hereof shall operate as a waiver of any subsequent failure to observe
any term or provision hereof unless such waiver expressly so provides. This
agreement may be executed in several counterparts, each of which shall be deemed
an original, and all of which shall constitute one and the same instrument. This
agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware applicable to agreements made and to be performed
entirely within such State, without regard to the conflicts of law principles of
such State.
7. The management agreement between the Company and Ripplewood
dated July 13, 1999 is hereby terminated and no longer in effect.
If you are in agreement with the foregoing, kindly so indicate
by signing a counterpart of this letter whereupon it shall become a binding
agreement between us.
Very truly yours,
JLC LEARNING CORPORATION,
by /s/Charles Laurey
---------------------------------
Name: Charles Laurey
Title: Secretary
Agreed and Accepted
as of November 17, 1999
RIPPLEWOOD HOLDINGS L.L.C.,
by /s/Robert Lynch
---------------------------------
Name: Robert Lynch
Title: Treasuer