CONFORMED COPY
MANAGEMENT CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of
the 16th day of February, 1996, by and between Newco Inc., a Wisconsin
corporation ("Newco"), and Swing-N-Slide Corp., a Delaware corporation
("SNSC") (collectively, the "Corporation"); and Glencoe Investment
Corporation, a Delaware corporation, and Xxxxx Capital Management
Incorporated, a New York corporation, both principals of GreenGrass
Capital (collectively, the "Consultant").
W I T N E S S E T H :
WHEREAS, the Corporation is engaged in the business of
manufacturing and selling outdoor playground equipment; and
WHEREAS, the Consultant possesses expertise in financial and
management matters; and
WHEREAS, the Corporation desires to engage the Consultant to
provide certain consulting services described herein, and the Consultant
desires to provide such services, in accordance with the terms and subject
to the conditions set forth in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Engagement. The Corporation does hereby appoint and engage
the Consultant to provide the services described herein, and the
Corporation hereby agrees to provide such services, upon the terms and
subject to the conditions set forth in this Agreement.
2. Description of Services. During the term of this
Agreement, and any renewals or extensions hereof, the Consultant shall
provide the following services for and on behalf of the Corporation:
consult with respect to financial and management matters relating to the
ongoing business of the Corporation as and when needed; board of directors
and committee membership, attendance and participation (without standard
board compensation); management of external banking and financial affairs
of the Corporation in the ordinary course of business in conjunction with
senior executives of the Corporation; and, provide such other services as
may be reasonably requested by the Corporation relating to the ongoing
finances and management of the Corporation. The services covered under
this Agreement shall not include major extraordinary project tasks such as
substantial investment banking-type work that may be required in
connection with capital raising, mergers or acquisitions.
3. Term. Unless terminated as hereinafter provided, the term
of this Agreement shall commence on the date hereof and shall continue in
full force and effect for a period of one (1) year, and thereafter shall
be automatically renewed for successive one (1) year terms unless either
party shall notify the other at least sixty (60) days prior to the
expiration of the term, or any renewal or extension thereof, of its
intention not to renew this Agreement.
4. Consulting Fee. In consideration for the services the
Consultant shall provide the Corporation pursuant to this Agreement, the
Corporation shall pay to the Consultant a quarterly consulting fee of
Seventy-Five Thousand Dollars ($75,000.00), payable on or before the tenth
(10th) day of the month immediately following the end of each calendar
quarter.
5. Expenses. The Corporation shall pay, or promptly reimburse
upon request, the Consultant for all reasonable expenses paid or incurred
by the Consultant in connection with the performance of services
hereunder, upon presentation of expense statements, vouchers, or other
evidence of expense.
6. Independent Contractor. The Consultant shall act as an
independent contractor in the provision of services to the Corporation
pursuant to this Agreement. Neither the Consultant nor any of its
employees or agents are to be considered as employees of the Corporation
for any purpose, nor will they be entitled to any of the benefits the
Corporation may provide for its employees. Accordingly, the Consultant
shall be solely responsible for payment of all taxes arising out of its
activities, under this Agreement, including any and all applicable
federal, state, and local taxes.
7. Relationship of the Parties. It is expressly agreed by the
parties hereto that no agency relationship is, or shall be deemed to have
been, created by this Agreement, and except as expressly set forth in this
Agreement, no party shall by reason of this Agreement have the power or
authority to bind any other party contractually or otherwise.
8. Confidential Information. During the term of this
Agreement and at all times thereafter, the Consultant shall not take or
use, directly or indirectly, or otherwise disclose to anyone, any
Confidential Information (as hereinafter defined), except (i) as necessary
to carry out its obligations under this Agreement, (ii) as authorized in
writing by the Corporation, or (iii) as required by any court or
governmental agency. For purposes of this Section, "Confidential
Information" shall mean any and all ideas, innovations, conceptions,
inventions, developments, methods, techniques, specifications, equipment,
computer software and programs, notes, worksheets, customer and supplier
lists, data, financial information, and other information in any form that
concerns or relates to any aspect of the actual or contemplated business
of the Corporation.
9. Termination. Notwithstanding any provision contained
herein to the contrary, this Agreement may be terminated as follows:
(a) Upon written agreement of the parties;
(b) By the Corporation, by a majority vote of the
independent directors, after an annual review by the board
of directors of the services of the Consultant;
(c) By the Corporation, upon the bankruptcy or dissolution
of the Consultant; or
(d) By the nonbreaching party, in the event of a material
breach of this Agreement by the other party that shall
continue for a period of thirty (30) days after written
notice to such other party of such breach and election to
terminate.
10. Notices. All notices, requests, demands, and other
communications hereunder shall be deemed to have been duly given if
delivered by hand or mailed, return receipt requested, with postage
prepaid to the following addresses (or such other addresses with a copy to
such other persons as the parties shall designate in writing from time to
time):
(a) If to the Corporation, then to the following:
Swing-N-Slide Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxxxxx
Xxxxx & Lardner
000 Xxxx Xxxxxx Xxxxxx
P.O. Box 1497
Madison, WI 53701-1497
(b) If to the Consultant, then to the following:
Glencoe Investment Corporation
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
and
Xxxxx Capital Management Incorporated
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx X. Xxxx
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
11. Miscellaneous
(a) This Agreement shall represent the entire agreement of
the parties with respect to the subject matter contained herein, and shall
supersede any and all prior agreement, negotiations, understandings, or
representations with respect thereto. No amendment or modification of
this Agreement shall be binding unless in writing, signed by each of the
parties hereto.
(b) No party shall assign this Agreement or any rights
hereunder without the prior written consent of the other party hereto, and
any such attempt at assignment shall be null and void.
(c) No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party against which it is
sought to be enforced. No waiver of any provision of this Agreement may
at any time be deemed a waiver of any other provision of this Agreement at
such time, or a waiver of such or any other provisions at any other time.
(d) In the event any portion of this Agreement shall be
adjudicated invalid for any reason, the remainder of this Agreement shall
remain in full force and effect and shall be severed from the portion or
portions deemed invalid.
(e) This Agreement shall be binding upon, and shall insure
to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, and assigns.
(f) This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of Wisconsin, without
regard to conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first set forth above.
CORPORATION: CONSULTANT:
NEWCO, INC. GLENCOE INVESTMENT CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx, President Name: Xxxxx X. Xxxxx
Title: President and CEO
SWING-N-SLIDE CORP. XXXXX CAPITAL MANAGEMENT
INCORPORATED
By: /S/ Xxxxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxxx, President Names: Xxxxx X. Xxxxx, Xx.
Title: Executive Vice President
