[Letterhead of Swing-N-Slide]
September 2, 1997
Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx Xxxx Xxxxx
Xxx Xxx, Xxxxxxxx 00000
Re: Consulting Agreement
Dear Xxxxx:
This letter agreement (the "Agreement") is made as of the 2nd
day of September, 1997, by and between Swing-N-Slide Corp. ("Company") and
yourself ("Consultant") to detail the terms and conditions of your tenure
as interim Chief Executive Officer of the Company.
WHEREAS, Consultant is a member of the Board of Directors of
Company; and
WHEREAS, Consultant desires to be retained by Company and
Company desires to secure the services of Consultant on an interim
consulting basis.
NOW, THEREFORE, in consideration of the covenants and agreements
of the parties herein contained, the parties hereto agree as follows:
1. Engagement. Company xxxxxx agrees to retain and Consultant
agrees to serve as Chief Executive Officer of Company on an interim basis
and on the terms and conditions set forth herein. The Consultant shall
have such powers and shall perform such duties as are customarily incident
to such position, together with such limitations on authority and such
additional duties as shall be determined from time to time by the Board of
Directors of Company. The Consultant shall devote sufficient time and
efforts so as to fully and diligently perform such duties.
2. Consulting Fee. As compensation for Consultant's services as a
consultant hereunder, Company shall pay Consultant a gross monthly base
consulting fee of $20,000, payable monthly in arrears. In the event
Consultant's services are terminated before the end of a given month,
Consultant shall be paid a pro rata portion of the monthly consulting fee
based on the number of days worked during such month.
3. Stock Options. Consultant is hereby granted an option to
purchase up to 7,500 shares of common stock of Company pursuant to the
Company's 1996 Stock Option Plan, for each 30-day period in which
Consultant is a consultant of Company under the terms hereof. Each such
option to purchase shall vest, if at all, on the day after the 30-day
period expires during which Consultant has continually been a consultant
of Company under the terms hereof. In the event Consultant's term is
terminated pursuant to Paragraph 4(i) during the pendency of a 30-day
period, a pro rata number of options shall vest for the number of days
incurred prior to the termination. For example, if Consultant's services
are terminated pursuant to Paragraph 4(i) after 15 days of the 30-day
period, 3,750 shares shall vest on the termination date. The exercise
price of any option granted pursuant hereto shall be $4.75. Any option
granted pursuant to the terms hereof shall be exercisable, if at all, no
later than five (5) years following the termination of Consultant's
services hereunder.
4. Term. The term of Consultant's services hereunder shall
commence on the date hereof and shall continue until the earlier of (i)
the date on which the term of employment of a permanent chief executive
officer of Company begins, (ii) December 31, 1997, or (iii) such date as
the parties mutually agree.
5. Expenses. Consultant is authorized to incur reasonable expenses
on behalf of Company including, but not limited to, expenses for
entertainment and related travel. Consultant shall be reimbursed for
such reasonable expenses upon submitting substantiation of such expenses
to Company, subject to established reimbursement policies of Company in
effect from time to time.
6. Independent Consultant. Consultant shall not be deemed an
employee of Company, and shall perform such consulting services as an
independent consultant.
7. Miscellaneous.
(a) No provisions of this Agreement may not be amended unless
such amendment, modification or discharge is agreed to in writing signed
by the parties hereto.
(b) This Agreement constitutes the entire agreement of the
parties on the subject matter hereof and no agreements or representations,
oral or otherwise, expressed or implied, with respect to the subject
matter hereof have been made by either party which are not set forth
expressly in this Agreement.
(c) This Agreement shall be binding upon and inure to the
benefit of Company, its successors and assigns, and Consultant and his
heirs, personal and legal representatives.
(d) The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Wisconsin
applicable to contracts made and to be performed therein between residents
thereof.
If the foregoing agreement is acceptable, please acknowledge
your acceptance by signing below and returning one original to me.
SWING-N-SLIDE CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx
Chief Financial Officer
By: /s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx
Chairperson, Compensation
Committee of the Board of
Directors
Agreed and Accepted this
2nd day of September, 1997.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
