Exhibit No. 10(C)
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT (the "Agreement") made and entered into as of
the 23rd day of December, 2002 (the "Effective Date"), by and between Village
Transport Corporation, a Delaware corporation having an office at 6300 Wilson
Mills Road, Mayfield Village, Ohio 44143 ("Village"), and ACME Operating
Corporation, an Ohio corporation having an office at 6300 Wilson Mills Road,
Mayfield Village, Ohio 44143 ("ACME").
WITNESSETH:
WHEREAS, Village employs Kimberly Sabo ("Sabo"), who acts as an executive
assistant for Peter B. Lewis; and
WHEREAS, ACME is owned in its entirety, directly or indirectly, by Mr.
Lewis; and
WHEREAS, on and after the Effective Date, ACME will be responsible on
behalf of Mr. Lewis for, and will reimburse Village for, all salary and related
costs incurred in respect of Sabo, by Village, Progressive Casualty Insurance
Company and/or its affiliates (collectively, "Progressive").
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the parties hereto hereby agree as
follows:
1. The parties agree that from and after the Effective Date, Village
will continue to employ Sabo until such time as either ACME or Mr. Lewis informs
Village in writing that such employment should be terminated. ACME shall at all
times on and after the Effective Date have the right to set Sabo's salary, bonus
(if any), and other terms and conditions of her employment, subject to Village's
prior approval, which shall not be unreasonably withheld. ACME agrees to provide
Village with all information which Village may need to discharge its obligations
under this Agreement. At such time as either ACME or Mr. Lewis requests in
writing that Village terminate Sabo's employment, Village shall be authorized to
terminate such employment without further inquiry, and ACME shall thereafter
indemnify, defend and hold Village and Progressive harmless from and against any
and all damages, claims, causes of action, liabilities, costs or expenses,
including without limitation reasonable attorneys fees, incurred by either
Village or Progressive as a result of, in connection with, or arising out of
such termination.
2. Village agrees, subject in each case to ACME's reimbursement
obligation set forth herein, to pay to Sabo the salary and bonus (if any) as
directed by ACME from time to time in writing, perform and pay tax withholding
obligations incurred as a result thereof, make available to Sabo employee
benefits on terms and conditions substantially similar to those generally
provided to Progressive's employees, provide (or cause Progressive to provide)
Sabo with necessary or appropriate training, office space as reasonably
requested by ACME, computer hardware and software costs, office supplies and
equipment, telephone lines and services, postage, overnight and local courier
services and other typical office services made available for Progressive's
employees, as may be reasonably requested by ACME from time to time.
3. ACME shall cause Sabo to accurately keep track of the office supplies
and equipment, postage, overnight and local courier services and other office
services using Progressive's internal cost allocation procedures and the cost
center code provided by Progressive. Progressive shall at all times have the
right to audit such tracking by Sabo.
4. ACME agrees to reimburse Village for all costs incurred by Village
and/or Progressive in connection with Sabo's salary, bonus (if any) or employee
benefits, or in connection with Sabo's use of training services, office space
(including, without limitation, allocated rent and utility charges), computer
hardware or software, or office equipment or other supplies, telephone charges,
postage, overnight and local courier and other office services provide by
Village or Progressive hereunder (the "Reimbursement Obligation"). The parties
agree that for the period commencing on the Effective Date and ending on
December 31, 2003, the Reimbursement Obligation is estimated to be $68,800,
which ACME shall pay to Village in twelve (12) equal monthly installments of
$5,150, commencing in January, 2003 (the "Monthly Reimbursement Payment"). The
Monthly Reimbursement Payment (as adjusted, if applicable, as hereinafter
provided) shall be made by ACME on the first day of each calendar month during
the term of this Agreement. Village shall have the right, but not the
obligation, to adjust the Monthly Reimbursement Payment from time to time as may
be reasonably necessary to cause the total of the Monthly Reimbursement Payments
for any calendar year to approximate or exceed the expected aggregate
Reimbursement Obligation the for such calendar year, as reasonably estimated by
Village.
5. On or before April 30, 2004 and each year thereafter, Village shall
provide a statement to ACME setting forth ACME's actual Reimbursement Obligation
for the immediately preceding calendar year in reasonable detail. In the event
that the aggregate Monthly Reimbursement Payments made by ACME during such
preceding calendar year exceed ACME's actual Reimbursement Obligation as shown
on such statement, Village will provide ACME with a credit for such excess or
pay to ACME an amount equal to such excess, in Village's discretion. In the
event that the aggregate Monthly Reimbursement Payments made by ACME during such
preceding calendar year are less than ACME's actual Reimbursement Obligation as
shown on such statement, ACME will pay such difference to Village within 30 days
after receiving such statement. ACME shall have the right, upon reasonable prior
notice to Village, to review Village's and Progressive's books and records
supporting the actual Reimbursement Obligation as shown on such statement during
Village's and Progressive's normal working hours, upon reasonable prior notice.
The provisions of this paragraph shall survive the expiration or termination of
this Agreement.
6. ACME acknowledges that Village is agreeing to continue to employ Sabo
and perform the services required by this Agreement as an accommodation to ACME
and Mr. Lewis, and that neither Village nor Progressive are intended to incur
any liability to ACME, Sabo or any other party beyond the performance of the
obligations expressly required hereby. Accordingly, ACME agrees to indemnify,
defend and hold Village and Progressive harmless from and against any damages,
liabilities, claims, costs and expenses, including, without limitation,
reasonable attorneys fees, incurred by Village and/or Progressive as a result
of, in connection with, or arising out of, the performance of the obligations of
Village under this Agreement.
7. Upon the occurrence of an Event of Default (as hereinafter defined)
under this Agreement, Village will have the right (i) to cease all activities
hereunder; (ii) to bring an action or claim against ACME for all sums which may
be due and owing hereunder and to pursue all other remedies available to it at
law or in equity; and (iii) to terminate the employment of Sabo, and such
employment shall be deemed to be a termination at the written request of ACME as
provided in Section 1 hereof for all purposes hereunder. Such remedies shall be
cumulative and Village's decision to pursue one such remedy shall not prohibit
it from pursuing one or more other available remedies at the same time or
thereafter. For purposes hereof, the term "Event of Default" shall mean the
occurrence and continuation of any of the following events of default hereunder:
(a) The failure of ACME to pay when due the any amounts due and
owing hereunder, including, without limitation, any Monthly Reimbursement
Payment or any payment required by Section 5 hereof, or any portion thereof,
with a ten (10) day period of grace after written notice of nonpayment;
(b) The material breach by ACME of any other provision of this
Agreement, which material breach shall continue for thirty (30) days after
written notice to ACME;
(c) If ACME shall:
(1) admit in writing its inability to pay, or fail to pay,
its debts generally as they become due;
(2) file a petition in bankruptcy or a petition to take
advantage of any insolvency act or file an answer admitting or
failing to deny the material allegations of such petition:
(3) make an assignment for the benefit of its creditors;
(4) consent to the appointment of, or possession by, a
custodian for itself or for the whole or substantially all of its
property; or
(5) file a petition or answer seeking reorganization or
arrangement or other aid or relief under any bankruptcy or insolvency
laws or any other law for the relief of debtors or file an answer
admitting, or fail to deny, the material allegations of a petition
filed against it for any such relief.
(d) If a court of competent jurisdiction shall enter an order,
judgment or decree appointing, without the consent of ACME, a custodian for ACME
or the whole or substantially all of its property, or approving a petition filed
against it seeking liquidation, reorganization or arrangement of ACME under any
bankruptcy or insolvency laws or any other law for the relief of debtors, and
such order, judgment or decree shall not be vacated or set aside or stayed
within sixty (60) days from the date of entry thereof; or,
(e) If, under the provision of any law for the relief of debtors,
any court of competent jurisdiction or custodian shall assume custody or control
of ACME or of the whole or any substantial part of its property without the
consent of ACME, and such custody or control shall not be terminated or stayed
within sixty (60) days from the date of assumption of such custody or control.
8. This Agreement shall commence on the date of execution hereof and
shall terminate on the earlier of (i) thirty (30) days after the date Village
elects to terminate this Agreement as a result of ACME's default, or (ii) thirty
(30) days after either party elects, by written notice to the other party, to
terminate this Agreement, whether or not a default or Event of Default then
exists.
9. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their representatives, successors and permitted assigns.
This Agreement shall not be assignable by either party except upon the express
written consent of the other party.
10. This Agreement constitutes the entire understanding among the
parties with respect to the subject matter hereof, and any changes or
modifications hereto must be in writing and signed by authorized representatives
of both parties. The parties hereto further agree that the courts of the United
States and State of Ohio shall have jurisdiction over the parties with regard to
any disputes arising under this Agreement and that this Agreement shall be
interpreted and governed by the laws of the State of Ohio.
11. Any notice, request or other communication to either party by the
other hereunder shall be made in writing and shall be deemed given on the
earlier of the date (i) personally delivered with receipt acknowledged, or (ii)
telecopied at time of transmission or (iii) three (3) days after mailed by
certified mail, return receipt requested, postage prepaid and addressed to the
party at the address set forth in the first paragraph of this Agreement. The
address of a party to which notices or copies of notices are to be given may be
changed from time to time by such party by written notice to the other party.
12. This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, all of which together shall constitute one
and the same agreement.
13. In the event that any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable,
the remaining provisions of this Agreement shall be unimpaired and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
provision, which, being valid, legal and enforceable, comes closest to the
intention of the parties underlying the invalid, illegal or unenforceable
provision.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written. The persons signing below warrant
their signatures.
ACME Operating Corporation
By: /s/ Peter B. Lewis
------------------
Its: President
---------
Village Transport Corp.
By: /s/ Dane A. Shrallow
--------------------
Its: Vice President and Secretary
----------------------------