EXHIBIT 10.24
March 27, 2000
VIA HAND DELIVERY
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Mr. Mark Vidovich, Chairman
Mr. James Freeman, Jr., CEO
Day Runner
2750 W. Moore Avenue
Fullerton, CA 92833
RE: DAY RUNNER (THE "COMPANY")
Dear Mark and Jim:
This letter agreement sets forth the services to be provided by
Crossroads, LLC ("Crossroads") to the Company and the terms and conditions
under which such services will be performed (the "Engagement"), and supercedes
any prior agreements or understandings, whether written or oral. All
references in this letter agreement to Crossroads shall include officers,
executives, owners, members, agents, and employees of Crossroads, and joint
venture or strategic alliance partners, and independent contractors retained
by Crossroads, if any.
1. SCOPE OF SERVICES AND FEES.
(a) Crossroads will initially provide consulting services to the
Company in five (5) operational and strategic areas as
described in a letter to Day Runner dated March 21, 2000, and
more fully described in Crossroads' correspondence to Day
Runner dated March 9, 2000. The operational and strategic
consulting areas, presented in the Company's priority order,
are:
(1) FINANCIAL ADVISORY SERVICES. Assist Day Runner to
formulate restructuring strategies for its existing bank
group, and provide advisory services related to its existing
creditor relationships. Anticipated staffing: John Ausura and
Mark Barbeau, Principals, and others as needed.
(2) LITTLE ROCK, AK OPERATIONS. Analyze Little Rock, AK
operations and provide recommendations in writing for
improvements. Anticipated staffing: Miles Stover and John
Ausura, Principals.
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(3) STRATEGIC AUDIT. Perform assessment of management's
current thinking regarding the critical path for the Company's
strategic agenda, and analyze alternatives. Anticipated
staffing: John Ausura, Principal, Allen Jacobs and Tom
McCrary.
(4) FREIGHT MANAGEMENT. Analyze existing freight
management system through an examination of transportation
methods and pricing for interplant transfers, e-commerce,
inbound purchases and customer deliveries. Anticipated
Staffing: Larry Field, Director, and John Ausura, Principal.
(5) SUPPLY CHAIN OPPORTUNITIES. Evaluate Day Runner's
Asia -- United States planning and procurement processes,
based upon refinement of the project scope in conjunction
with Day Runner management. Anticipated Staffing: Mike
Anthony, Principal; and/or Kevin Lee, Steve Contardi, Managing
Directors; Pat Jones, Director.
(b) For projects in which services will be invoiced on an hourly
basis, Crossroads shall provide to the Company the services of
professionals ("Professionals"), as determined by Crossroads
and the Company, to assist the Company in resolving its
present issues on the following terms:
John Ausura, Principal
and Engagement Manager $325 per hour
Other Principals $290 - 395 per hour
Director(s) $195 - 285 per hour
Consultant(s) $150 - 190 per hour
Administrative Personnel $75 per hour
(c) The Company shall pay Crossroads a fixed fee of $17,500 for
the time spent by Miles Stover for the analysis of the Little
Rock, Arkansas operations. The fixed fee shall be payable
within 10 days of the project's completion. The Company shall
pay expenses associated with the study as described below in
paragraph (g).
(d) The Company shall pay Crossroads a fixed fee of $65,000 for
the time spent by Allen Jacobs and Tom McCrary for the
Evaluation of the Company's Strategic Direction. The fixed fee
shall be paid in two payments: 50% upon commencement of the
analysis, and 50% 30 days after the commencement of the
analysis or upon delivery of the report, whichever is later.
The Company shall pay expenses associated with the study as
described below in paragraph (g).
(e) Crossroads shall perform an initial three-week study of Day
Runner's freight management systems and practices. The hourly
rates shall be waived for the study; the Company shall pay
expenses associated with the study as described below in
paragraph (g). Crossroads shall provide its findings at the
conclusion of the study. The Company and Crossroads shall
mutually agree on an implementation plan and compensation.
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(f) The Company shall pay $40,000 as a retainer due upon signing
this letter agreement. The retainer shall be paid by check.
The retainer is not to be applied or credited to amounts due
from the Company, but will be returned to the Company once all
amounts due hereunder are paid in full.
(g) The Company shall pay all expenses incurred by Crossroads for
services related to the Company (E.G., actual out of pocket
expenses such as communications, travel, meals, and living
expenses incurred in connection with the Engagement). These
fees will be paid upon weekly submission of an invoice by
Crossroads.
Failure of the Company to promptly pay amounts due for services
rendered or for reimbursement of expenses shall constitute justification for
Crossroads to terminate this letter agreement upon three days' written notice.
2. TERM OF ENGAGEMENT. The term of the Engagement shall commence as of March
27, 2000 and shall end upon mutual agreement.
The Company may terminate this letter agreement upon five days' advance
written notice, with payment due to Crossroads for services rendered and
expenses incurred through the termination. Crossroads may withdraw at any time
with the Company's consent or for good cause without the Company's consent.
Good cause includes the Company's breach of this agreement (including the
Company's failure to pay any statement or indemnity obligation when due), the
Company's failure or refusal to cooperate with Crossroads, or any fact or
circumstance that would render Crossroads' continuing representation unlawful
or unethical.
3. DISCLOSURES. As we have discussed, Crossroads has represented, and will in
the future represent, many different clients with various business interests
in numerous industries. These clients are often referred to Crossroads by
intermediaries such as lawyers, investment bankers, lenders and accountants.
("Referral Sources"). In undertaking the Engagement on behalf of the Company,
Crossroads' objective is to provide services for the Company to the best of
its ability, but without precluding Crossroads from representation of other
clients or in accepting referrals from or making referrals to Referral
Sources. Since Crossroads wants the Company to be comfortable with the
retention of Crossroads in light of other client and Referral Sources
relationships, Crossroads makes the following disclosures, based on a list
provided by the Company by March 28, 2000 of parties with an interest in the
Engagement:
- Crossroads is presently advising a group of bondholders in
an unrelated matter, of which Kaim Non-Traditional, LP is a member.
The Company agrees to update in writing disclosure information from
time to time if and when additional parties with an interest in or a
relationship with the Company are identified.
As a specific condition to Crossroads' undertaking the Engagement,
the Company acknowledges the potential conflicts of interest inherent in the
above disclosures and waives any breach of fiduciary duty or similar claim
related to such disclosures.
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THE ADDITIONAL TERMS AND CONDITIONS ATTACHED TO THIS LETTER AGREEMENT ARE
HEREBY MADE PART OF THIS LETTER AGREEMENT AS THOUGH FULLY SET FORTH HEREIN.
If this letter agreement is not executed within 2 days from its issue date,
Crossroads reserves the right to amend the terms after such date. If you
agree to the terms and conditions set forth above, please indicate your
acceptance and approval by signing this letter in the space provided below
and on the duplicate copy attached.
Crossroads looks forward to serving you in this important matter.
Very truly yours,
CROSSROADS, LLC
By: /s/
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John F. Ausura
Principal
AGREED AND ACCEPTED:
By: /s/
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Mark Vidovich, Chairman
Date:
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ADDITIONAL TERMS AND CONDITIONS
AMOUNTS NOT PAID. All amounts not paid when due will bear interest at
an annual rate of 12% or the maximum rate allowed by law, whichever is greater.
AGREEMENT NOT TO EMPLOY. Crossroads' business is in part centered on
its ability to identify and secure the services of talented personnel for its
client companies. Absent an agreement with Crossroads providing it fair
compensation, Crossroads would suffer serious economic harm were its client
companies to hire directly or through other companies Crossroads' employees or
independent contractors. The Company, its board members, officers and
affiliates agree that during the term of this letter agreement and for twelve
months thereafter they shall not, directly or indirectly, solicit, offer
employment to or hire any employee or independent contractor of Crossroads or
its affiliates. If the Company and Crossroads agree that the Company may hire
Officer or any other Crossroads' employee or independent contractor,
notwithstanding the prohibition in the immediately preceding sentence, and
such hiring occurs within twelve months after the termination of this letter
agreement, the Company shall pay Crossroads one-half of the intended first
year's compensation payable to the Officer or other Crossroads employee or
independent contractor, but not less than $750,000 per person hired. Any such
payment shall be made on the date Officer or other Crossroads' employee or
independent contractor begins work for the Company.
WARRANTIES AND INDEMNIFICATION. Crossroads neither expresses nor
implies any warranties of its work nor predicts results of the Engagement.
Crossroads has not offered any assurances that the efforts to resolve the
financial, structural or management issues facing the Company can or will be
successful.
Crossroads shall not be subject to any liability to the Company for
any act or omission relating to, in connection with or arising out of services
rendered hereunder, unless Crossroads' acts or omissions constitute willful
malfeasance, gross negligence or the reckless disregard of Crossroads'
obligations or duties hereunder. In furtherance of the foregoing, the Company
agrees and covenants that it will not initiate any legal or administrative
proceedings whatsoever against Crossroads relating to, in connection with or
arising from the services rendered hereunder seeking more than the amount of
the fees actually paid to Crossroads for the Engagement.
The Company releases, indemnifies and holds Crossroads harmless from
and against any losses, claims, damages or liabilities ("Losses") to which
Crossroads may become subject and shall promptly reimburse Crossroads for any
legal or other expenses (including the cost of any investigations and the
hiring of any accountant or other experts) reasonably incurred by Crossroads
relating to, in connection with or arising from the services rendered
hereunder, whether or not resulting in any liability, unless such Losses
resulted from Crossroads' willful malfeasance, gross negligence or the
reckless disregard of its obligations or duties hereunder.
LEGAL PROCEEDINGS. If after the termination of the Engagement
Crossroads is requested and agrees or is required to participate in any manner
in legal or administrative proceedings regarding the Company, compensation
shall be paid to Crossroads for its time at the hourly rate of $475. For
individuals no longer employed by Crossroads, at the time of such
participation, payment shall be made to such individuals directly or to their
employers, as applicable.
ACCURACY OF INFORMATION. The Company will use reasonable efforts to
assure that all information, financial or otherwise, provided by or on behalf
of the Company with respect to the Engagement (the "Information") to
Crossroads will, as of its respective dates, be accurate and complete in all
its material respects. The Company understands that Crossroads will not be
responsible for independently verifying the accuracy of the Information. The
Company assumes full responsibility for inaccuracies in any Information
provided by or on behalf of the Company to Crossroads or any third party. The
Company will reasonably cooperate with Crossroads in all phases of Crossroads'
services under the Engagement. Specifically, without limiting the generality
of the foregoing, if at any time during the Engagement, the Company discovers
that any of the Information is inaccurate in any material respect it will
immediately notify Crossroads.
WORK OUTPUT. Crossroads' work product assembled or prepared by
Crossroads during the Engagement specifically and for the benefit of the
Company ("Work Product") shall be the sole property of the Company. Crossroads
shall deliver to the Company upon conclusion of the Engagement originals of
the Work Product. Crossroads shall retain copies of the Work Product pursuant
to its document retention policy as in effect from time to time. Crossroads'
proprietary methodology and know-how will be and remain the exclusive property
of Crossroads.
FUTURE ENGAGEMENTS. Crossroads has offices throughout the United
States. Crossroads is or expects to be engaged by other clients from time to
time and cannot assure that, following the Engagement, an engagement will not
be accepted elsewhere for an interested party.
INDEPENDENT CONTRACTOR. The Company acknowledges that Crossroads is
being retained as an independent contractor to the Company and no employment
relationship, partnership, joint venture or other association shall be deemed
created by this letter agreement.
CONFIDENTIALITY. During the term of the Engagement and for a period
of six months thereafter, Crossroads shall keep secret and retain in strictest
confidence, any and all confidential information relating to the Company or of
which Crossroads shall obtain knowledge by reason of the Engagement,
including, without limitation, trade secrets, customer lists, financial plans
or projections, pricing policies, marketing plans or strategies, business
acquisition or divestiture plans, new personnel acquisition plans, technical
processes and other research projects. Crossroads shall not, except in
connection with the performance of its duties hereunder, disclose any such
information to anyone outside the Company, other than to Crossroads' counsel,
as required by applicable law (provided prior written notice thereof is given
by Crossroads to the Company) or with the Company's prior written consent,
which shall not be unreasonably withheld or delayed. The obligations of
Crossroads in this paragraph shall not apply to information which is (i) known
generally to the public; (ii) known to Crossroads prior to the date of this
letter agreement; (ii) lawfully disclosed to Crossroads by a third party; or
(iii) generally known in the industry in which the Company is engaged.
The Company shall not, except as required in the conduct of its
business, disclose any Work Product to any third party other than the
Company's lenders, attorneys and advisors or as otherwise required by law,
without the prior written consent of Crossroads, which consent shall not be
unreasonably withheld or delayed.
ENGAGEMENT OF LEGAL COUNSEL. Crossroads will have the right to retain
independent legal counsel to obtain advice with respect to its services under
the Engagement. The Company will reimburse Crossroads upon demand for the
reasonable fees and expenses of such independent legal counsel incurred as an
expense by Crossroads on behalf of the Company up to $20,000 per year.
AGREEMENT TO MEDIATE/ARBITRATE. The parties agree to mediate any
dispute or claim arising between them out of the Engagement or any resulting
transaction before resorting to arbitration or court action. Mediation is a
process by which parties attempt to resolve a dispute or claim by submitting
it to an impartial, neutral mediator, who is authorized to facilitate the
resolution of the dispute, but who is not empowered to impose a settlement on
the parties. Mediation fees, if any, shall be divided equally among the
parties involved. Evidence of anything said, any admission made, and any
documents prepared, in the course of the mediation, shall not be admissible in
evidence, or subject to discovery in any arbitration or court action. If any
party commences an arbitration or court action based on a dispute or claim to
which this paragraph applies without first attempting to resolve the matter
through mediation, then in the discretion of the arbitrator(s) or judge, that
party shall not be entitled to recover attorneys' fees, even if they would
otherwise be available to that party in any such arbitration or court action.
The parties agree that any dispute or claim in law or equity arising out of or
in connection with the Engagement, which is not settled through mediation,
shall be decided by neutral, binding arbitration and not by court action,
except as provided by law for judicial review of arbitration proceedings. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association (AAA) and shall be conducted in Orange County,
California. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The parties shall have no
right to discovery. Each party in any arbitration shall be responsible for its
own attorneys' fees and costs.
NOTICES. The Company agrees that Crossroads shall have the right to
use the Company's name and logo in a description of the services provided by
Crossroads under the letter agreement.
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ENTIRE AGREEMENT; AMENDMENT AND WAIVER; APPLICABLE LAW; HEADINGS. The letter
agreement contains the entire understanding between the parties with respect
to its subject matter. The letter agreement may not be amended, modified,
supplemented or waived, except by a written instrument signed by the parties.
No waiver of any provision of the letter agreement shall be deemed or shall
constitute a waiver of any other provision, nor shall such waiver constitute a
continuing waiver. The letter agreement shall be governed in accordance with
the laws of the State of California, without giving effect to the principles
of conflicts of laws. The paragraph headings in the letter agreement and the
Additional Terms and Conditions are for informational purposes.
May 15, 2000
Mr. Mark Vidovich, Chairman
Day Runner, Inc.
2750 W. Moore Avenue
Fullerton, CA 92833
RE: AMENDMENT #2 TO CROSSROADS LETTER AGREEMENT
DATED MARCH 27, 2000
Dear Mark:
Referenceis made to the letter agreement dated March 27, 2000 and
subsequently amended (the "Letter Agreement") between Day
Runner, Inc. ("Client") and Crossroads, LLC ("Crossroads").
All references in this letter agreement to Crossroads shall
include officers, executives, owners, members, agents, and
employees of Crossroads, and independent contractors retained
by Crossroads, if any.
The provisions of the Amendment #1 shall remain in effect and shall
not be affected by this Amendment #2, with the exception of Paragraph 6
(Disclosures), below. Paragraphs 1 through 5 of this Amendment #2 specifically
modify the Financial Advisory Services portion of the services as set forth in
Paragraph 1.(a)(1), in the Letter Agreement as follows:
1. SCOPE OF SERVICES AND FEES.
a. Crossroads has completed the Financial Advisory Services
portion as designated in the Letter Agreement. Effective May 15, 2000
("Commencement Date") and terminating on June 30, 2001 ("Term"),
Crossroads will provide interim management services to the Company at a
fixed monthly fee of $110,000 ("Monthly Fee"). Crossroads represents to
Company that the proposed Monthly Fee represents a significant discount
and savings for the Company versus the hourly rate. The Monthly Fee
shall include the services of two Crossroads professionals:
(1) John Ausura, Principal or a suitable replacement as
determined by Crossroads and acceptable to the Company's Board of
Directors ("Board") will serve as the Company's Chief Executive Officer
("CEO"). CEO will report to the Board and shall have the full authority
for the day-to-day operations of the Company, including the
implementation of the proposals to be made to the Bank Group on or
about May 17, 2000. The Company, Crossroads and CEO acknowledge and
agree that the CEO is not and shall not be deemed to be an employee of
the Company for any purpose or at any time, and shall not be eligible
to participate in any of the Company's employee benefit plans, programs
or arrangements available to the Company's employees, including but not
limited to, the Company's Officer Severance Plan. The CEO shall not,
without Board approval: (a) remove from office or affect the duties or
compensation of the Company's Chairman, Mark Vidovich, (b) sell or
otherwise dispose of any material part of the business or material
assets of the Company or any direct or indirect subsidiary of the
Company or (c) terminate any of the Company's outside accountants and
lawyers. If any of the above cease to work with the Company or are
terminated by the Board, the CEO shall have the authority to hire a
replacement subject to Board approval. The Company, Crossroads and CEO
recognize that the number of hours devoted to the Engagement by CEO
will fluctuate based upon the activities in progress.
(2) Ken Leddon, Director will provide financial and
operational assistance.
b. The following Crossroads professionals or a suitable
replacement ("Professionals"), as determined by Crossroads and the
Company, shall provide services at the following hourly rates:
Mark Barbeau, Principal $300
Jamie Chronister $195
c. Further, related direct out-of-pocket expenses shall be
separate and apart from the Monthly Fee and shall be due monthly upon a
presentation of properly documented invoices.
d. In addition to the Monthly Fee described above, Crossroads
will be eligible for Success Fees as detailed in paragraph 3. below.
e. Upon termination of the Letter Agreement, the Company shall
have the option to renew the Term at the existing fixed monthly fee for
an additional twelve months, or for any portion thereof, terminating on
or before June 30, 2002.
2. COMPANY'S DIRECTORS AND OFFICERS INSURANCE LIABILITY POLICY. CEO
shall be covered by the Company's Directors and Officers insurance liability
policy (the "D&O Policy"). CEO shall be added as an additional named insured
party under the D&O Policy. The Company agrees to use its best efforts to
purchase a "tail policy" to the D&O Policy covering a period of time of not
less than one year after the conclusion of the Engagement. The Company will
deliver to Crossroads within 30 days of the commencement of the Engagement a
Certificate of Insurance evidencing such coverage.
3. SUCCESS FEES. If the Company achieves the earnings before interest,
taxes, depreciation and amortization ("EBITDA"), attached hereto as Exhibit A
and incorporated herein by reference, for the Company and its subsidiaries
exclusive of Filofax as noted below, for the 12 months ending June 30, 2001,
Crossroads will receive a success fee per the Exhibit. The EBITDA shall be
defined as (1) income from operations, plus (2) depreciation and amortization,
in each case using the assumptions underlying the sales, cost of goods sold
and operating expense projections set forth on page 25 of the Bank Group
Presentation materials to be presented to the Bank Group on May 17, 2000,
exclusive of Filofax, Inc. and Filofax Group Limited and their direct or
indirect subsidiaries and Success Fees payable to Crossroads. If any operation
is discontinued or any facility (such as DR Canada or Mexico) is shut down and
the impact of such action is not reflected in such projections, the parties
hereto will in good faith negotiate a new Exhibit A to reflect the impact of
such action.
If Crossroads withdraws from this Engagement or otherwise ceases to be
obligated to perform under the Letter Agreement, as amended hereby, prior to
June 30, 2001 (a "Workout Termination Event"), and if Crossroads would have
been entitled to a Success Fee had the Workout Termination Event not occurred,
then Crossroads will be entitled to receive a prorated Success Fee in an
amount equal to the product obtained by multiplying (x) the full amount of the
Success Fee to which Crossroads would have been entitled had no Workout
Termination Event occurred by (y) the fraction whose numerator is the number
of days elapsed during the period beginning on the Commencement Date and
ending on the date of the Workout Termination Event and whose denominator is
the number of days in the period beginning on the Commencement Date and ending
on June 30, 2001.
4. TERMS/CONFLICTS. This Amendment incorporates by reference all of the
terms and conditions contained in the Letter Agreement, which shall remain
unchanged and in full force and effect, as amended by this Amendment. In the
event of any conflict between the terms of the Letter Agreement and the terms
of this Amendment, the terms of this Amendment will be deemed to have
superseded those of the Letter Agreement and exclusively will govern the
matter in question.
5. SURVIVAL. The provisions of Paragraphs 2 and 3 above, shall survive
expiration of, or other termination of the Agreement, regardless of the cause
of such termination.
6. DISCLOSURES. Crossroads makes the following additional disclosure:
Crossroads has worked and may work on engagements in which Bank One and its
affiliates are part of the Client's lender group.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
If you agree to the terms and conditions set forth above, please
indicate your acceptance and approval by signing this letter in the space
provided below and on the duplicate copy attached.
Very truly yours,
CROSSROADS, LLC
By: /s/
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John Ausura
Principal
AGREED AND ACCEPTED:
DAY RUNNER, INC.
By: /s/ Date:
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Mark Vidovich
Chairman
EXHIBIT A
TO
AMENDMENT #2
SUCCESS FEES
These fees shall cover the Company's fiscal year ending June 30, 2001. If
Fiscal Year 2001 EBITDA (as defined in Paragraph 3 of this Amendment) meets or
exceeds $1,919,000, Crossroads shall receive a Success Fee of $300,000 plus
thirty percent (30%) of the amount by which Fiscal Year 2001 EBITDA exceeds
$1,919,000, with a cap on Success Fees of $1,5000 (SEE ILLUSTRATION ON THIS
PAGE.)
Company shall have the option of paying the fees over a six-month period
instead of a lump sum payment.
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SUCCESS FEES:
($000)
FY 01 EBITDA 1,919 2,419 2,919 3,419 3,919 4,419 4,919 5,419 5,919
Success Fee 300 450 600 750 900 1,050 1,200 1,350 1,500
$1,500,000 cap takes effect at EBITDA over $5,919,000
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