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EXHIBIT 10.2
FINANCIAL ADVISORY SERVICES AGREEMENT
THIS FINANCIAL ADVISORY SERVICES AGREEMENT (this "Agreement") dated February
10th, 2000, by and between WBT Holdings LLC and WBT Operating LLC (together,
the "Company") and WP Management Partners, L.L.C. ("WP").
WHEREAS, pursuant to that certain Purchase Agreement dated as of November
17, 1999, as amended (the "Purchase Agreement"), by and between ZD INC., a
Delaware corporation and WP Education Holdings LLC, a Delaware limited liability
company ("WP Education"), ZD INC. has agreed to sell, convey, assign, transfer
and deliver all of its right, title and interest in certain assets to WP
Education and WP Education has agreed to purchase and acquire such assets from
Seller, all as more fully described in the Purchase Agreement;
WHEREAS, pursuant to the terms of the Purchase Agreement, WP Education
proposes to assign to the Company, an Affiliate (as such term is defined in the
Purchase Agreement) of WP Education, the right to purchase from Seller those
certain assets, and the Company desires to accept such assignment from WP
Education;
WHEREAS, the Company has requested that WP make available to the Company
and its affiliates certain management and financial advisory services commencing
on the date hereof; and
WHEREAS, WP desires to provide such management and financial advisory
services to the Company and its affiliates commencing on the date hereof.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, it is agreed as follows:
1. Retention as Advisor. Subject to each of the terms, conditions and
provisions of this Agreement, the Company hereby retains WP and WP hereby
agrees to be retained by the Company, on an exclusive basis to perform those
functions set forth in Section 4 of this Agreement.
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2. Term.
2.1 Subject to the provisions for termination set forth herein,
this Agreement shall be in effect from the date hereof and for so long as funds
controlled by WP or any of its affiliates shall control, directly or indirectly,
interest of the Company, unless earlier terminated by the Company due to a
material breach by WP of its obligations hereunder, WP's gross negligence or
willful misconduct in the performance of its services for the Company hereunder.
2.2 WP, by thirty (30) days' prior written notice to the Company,
may terminate this Agreement at any time.
2.3 It is understood and agreed that (i) termination of this
Agreement shall not affect the Company's continuing obligation to indemnify WP
and certain Indemnified Persons as provided in paragraph 7 below, and its
continuing obligations and agreements under paragraph 6 hereof, (ii)
notwithstanding any such termination, WP shall be entitled to the full fees
paid (and then due and payable) to it as specified hereunder, and to the full
transaction fees, if any, agreed upon or provided for as contemplated by
paragraph 3 hereof relating to transactions consummated at any time prior to
the expiration of twelve months following such termination and (iii)
termination of this Agreement shall not affect the Company's obligation to
reimburse the expenses accruing prior to such termination to the extent
provided for herein.
3. Compensation.
3.1 As compensation to WP in respect of Monitoring Services (as
defined in Section 4) provided under this Agreement, the Company agrees to pay
to WP an annual fee (the "Monitoring Fee") in the amount of $500,000 per year.
Such fee shall be payable in equal quarterly installments, in advance, on the
last day of each calendar quarter with the first such payment commencing on the
date hereof in the amount of the full quarterly payment. As compensation to WP
in respect of Transaction Services (as defined in Section 4) provided under
this Agreement, the Company agrees to pay to WP a fee substantially consistent
with the fees for similar services customarily charged by major
nationally-recognized investment banks to third party clients on an
arm's-length basis; provided that any fees paid with respect to strategic
business combinations (including mergers, acquisitions, divestitures, joint
ventures or similar transactions) shall be based on a fee schedule whereby the
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Company shall pay WP a fee calculated as follows: (i) not less than 1.25% of
the aggregate consideration as long as the aggregate consideration is less than
or equal to $100 million; (ii) not less than 1.00% of the aggregate
consideration as long as the aggregate consideration is greater than $100
million, subject in each case to a minimum payment of $250,000.
3.2 WP shall also be entitled to be reimbursed by the Company for
all reasonable out-of-pocket costs and expenses incurred by WP, its affiliates
and any of their respective partners, employees or officers or any legal
counsel, accountants and other consultants retained by WP in connection with
the provision of services under this Agreement in connection with (a) providing
the Monitoring Services and Transaction Services under this Agreement, or (b)
serving as a member of the Board of Directors or as an officer of the Company,
including, without limitation, all travel and other out-of-pocket costs and
expenses. Reimbursement shall be provided promptly upon receipt by the Company
of invoices with respect to such costs and expenses.
4. Duties as Management Advisor. WP's duties as an advisor to
the Company under the provisions of this Agreement shall include providing
directly and/or through an affiliate (a) advisory services to assist management
in developing and implementing strategies related to the operating, marketing,
and financial performance of the Company (the "Monitoring Services") and (b)
services in obtaining and arranging equity, debt and lease financing and
advising in connection with strategic business combinations (including mergers,
acquisitions, divestitures and joint ventures) ("Transaction Services"). Such
Transaction Services shall be rendered upon the reasonable request of the
Company.
5. Decisions. In rendering its services to the Company hereunder, WP and
its affiliates are not assuming any responsibility for the Company's underlying
business decision to pursue any business strategy or to effect any transaction.
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6. Independent Contractor. Each of WP and its affiliates has been retained
under this Agreement as an independent contractor with no fiduciary or agency
relationship to the Company or to any other party. The advice (written or oral)
rendered by WP and its affiliates pursuant to this Agreement is intended solely
for the benefit and use of the Board of Managers or sole manager of the
Company, as the case may be, in considering the matters to which this Agreement
relates, and the Company agrees that such advice may not be relied upon by any
other person, used for any other purpose or reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose. The obligations of
WP to the Company are not exclusive, and WP and its affiliates may, in its, or
their, sole discretion, render the same or similar services to any other person
or entity. Nothing set forth in this Agreement shall be deemed to prohibit WP
or its affiliates from serving any other person or entity in any capacity WP
may deem appropriate or from conducting its business and affairs in any manner
it may elect, whether or not such activities might involve an actual or
potential conflict of interest with respect to the Company or any of its
affiliates.
7. Indemnification. The Company agrees to indemnify and hold WP and its
affiliates and their respective partners, members, officers, directors,
employees and agents and each of their respective successors and assigns
(collectively, "Indemnified Persons") harmless from damages, losses or expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred or paid directly or indirectly, by any Indemnified Person as a result
or arising out of any actions taken by any Indemnified Person in connection
with the performance of the Monitoring Services and Transaction Services under
this Agreement, except to the extent that such actions result solely from the
gross negligence or willful misconduct of any Indemnified Person. The Company
hereby further agrees to reimburse any Indemnified Person for all reasonable
fees and expenses (including attorneys fees) incurred in connection with
defending any such claim to which any Indemnified Person is a party, as such
fees and expenses are incurred by such Indemnified Persons. The Company shall
be liable for the reasonable fees and expenses of no more than one counsel (in
addition to local counsel) in connection with the defense of indemnifiable
damages hereunder, except that the Company shall be liable for the fees and
expenses of additional separate counsel to the extent the Indemnified Person
concludes reasonably based upon advice of counsel that (a) a conflict of
interest exists between the Indemnified Person and the Company or (b) the named
parties to such action include both the Company and the Indemnified Person and
there may be one or more legal defenses available to such Indemnified Person
which are not available to the
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Company, or available to the Company, but the assertion of which would be
adverse to the interests of the Company. The Company also agrees that no
Indemnified Person shall have any liability to it for or in connection with any
services provided under this Agreement or any transactions or conduct in
connection with any services provided under this Agreement or any transactions
or conduct in connection therewith except for losses, claims, damages,
liabilities or expenses incurred by the Company which are finally judicially
determined to have resulted primarily from the gross negligence or willful
misconduct of such Indemnified Person; provided, however, that in no event
shall the Indemnified Persons' aggregate liability to the Company exceed the
fees WP actually receives from the Company pursuant to this Agreement, unless
there is a final judicial determination of willful misconduct specified in this
sentence.
8. Miscellaneous.
8.1 Choice Of Law. This Agreement shall be deemed made in New York.
This Agreement and all controversies arising from or relating to performance
under this Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to such state's rules
concerning conflicts of laws. The Company hereby irrevocably consents to
personal jurisdiction in any court of the State of New York or any Federal
court sitting in the Southern District of New York for the purposes of any
suit, action or other proceeding arising out of this Agreement or any of the
agreements or transactions contemplated hereby, which is brought by or against
the Company, hereby waives any objection to venue with respect thereto, and
hereby agrees that all claims in respect to any such suit, action or proceeding
may be heard and determined in any such court. The Company hereby irrevocably
consents to the service of process of any of the aforementioned courts in any
such suit, action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Company at its address set forth
above, such service to become effective ten (10) days after such mailing. ANY
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF THIS
AGREEMENT NOR CONDUCT IN CONNECTION WITH THIS ENGAGEMENT IS HEREBY WAIVED.
8.2 Counterparts. This Agreement may be executed in counterparts,
each of which together shall be considered a single document.
8.3 Notices. Any notice, request, demand, waiver, consent, approval
or other communication which is required or permitted hereunder shall be in
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writing and shall be deemed given only if delivered personally to the address
set forth below (to the attention of the person identified below) or sent by
telefax, telegram or by registered or certified mail, postage prepaid, return
receipt requested as follows:
If to the Company:
WBT Holdings LLC and
WBT Operating LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to WP:
WP Management Partners, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the addressee may have specified in a notice duly
given to the sender and to counsel as provided herein. Any notice, request,
demand, waiver, consent, approval or other communication given (a) personally
shall be effective when delivered, (b) by mail or telegram shall be effective
when received and (c) by telecopy shall be effective when the appropriate
telecopy answer back or confirmation is received.
8.4 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof. It
supersedes any prior agreement or understanding among them, and it may not be
modified or amended in any manner other than by an instrument in writing signed
by both parties hereto, or their respective successors or assigns, or otherwise
as provided herein.
8.5 Successor and Assigns. This Agreement shall be binding upon
WP and the Company and their respective successors and assigns. This Agreement
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is not intended to confer any rights upon any shareholder, owner, partner of
the Company, or any other person not a party hereto other than the Indemnified
Persons referenced in the indemnification agreement referred to in Paragraph 7
above.
8.6 Force Majeure. If the performance by WP of any of its
services hereunder is prevented, restricted or interfered with in whole or in
part by reason of any event or cause whatsoever beyond the reasonable control
of WP, then in any such event, WP shall be excused from such performance to the
extent of such prevention, restriction or interference, and the amount payable
hereunder shall be reduced proportionately.
8.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
WBT OPERATING LLC
By: [SIG]
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Name:
Title:
WBT HOLDINGS LLC
By: [SIG]
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WP MANAGEMENT PARTNERS, L.L.C.
By: [SIG]
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Name:
Title:
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