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EXHIBIT 10.2.3
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") made as of the 28th day of
May, 1996 between FM PRECISION GOLF MANUFACTURING CORP., a Delaware corporation
(the "Company"), and XXXXXXXX, XXXXXXX & COMPANY, L.P., a Delaware limited
partnership ("BM&C").
WHEREAS, the Company wishes to engage BM&C to provide certain management
and investment banking services to the Company.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. General Services. Subject to the supervision of the board of
directors of the Company (the "Company Board"), and subject to any limitations
which the Company Board may from time to time place on the authority herein
granted to BM&C, BM&C shall perform advisory financial services consisting of
the following: investment of the Company's cash and client escrow funds; the
possible refinancing of indebtedness of the Company; trends and prospects for
interest rates as they may affect the aforementioned and other aspects of the
Company's operations; commercial and institutional financing relationships of
the Company including short-term loans; assistance to the Company in developing
cash flow projections, operating forecasts and capital improvement schedules and
projections; executive and other compensation; acquisitions, mergers and leases
or sales of assets; and advice and assistance with respect to such other
economic and financial matters as the Company may from time to time request (the
"General Services").
Section 2. Additional Services. In addition to the General Services, to
the extent requested and agreed to by the parties, BM&C shall perform additional
services consisting of the identification of potential acquisition and merger
opportunities and assistance in negotiations of potential acquisitions and
mergers (the "Additional Services"). BM&C shall be compensated for the
Additional Services for an additional fee to be negotiated by the parties
hereto.
Section 3. Personnel. BM&C shall make available to the Company, as needed,
Xxxxxxx X. Xxxxxxx, who shall, if elected, serve as an officer and director of
the Company without salary or other compensation except for reimbursement of
expenses and, if approved by the Company, board of directors fees.
Section 4. Fee. As compensation for all General Services to be performed
hereunder, the Company shall pay BM&C a fee of $50,000 per year (pro rated
through December 31, 1996) in equal monthly installments on the first day of
each month commencing June 1, 1996. In addition, the Company shall reimburse
BM&C for all expenses incurred by BM&C on behalf of the Company in the
performance of the General Services hereunder on presentation of appropriate
documentation thereof.
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Section 5. Parties in Interest. It is agreed between the parties hereto
that employees, officers, directors and shareholders of BM&C are or may be
become interested in the Company or its parent as employees, officers or
shareholders or otherwise, and that employees, officers or shareholders of the
Company are or may be or become similarly interested in BM&C.
Section 6. Non Exclusivity. The services of BM&C to the Company are not
exclusive and BM&C is free to render services to others and to engage in other
activities, provided that such other services and activities do not, during the
term of this Agreement, interfere in a material manner, with BM&C's ability to
meet all of its obligations with respect to rendering services hereunder. In the
absence of gross negligence, BM&C shall not be subject to liability to the
Company or to any shareholder of the Company for any act or omission in the
course of, or in connection with, the rendering of services hereunder.
Section 7. Term. This Agreement shall remain in full force and effect for
the period commencing on the date hereof and ending on May 31, 2003; provided
that commencing on June 30, 1997 and on each successive June 30, the date of
termination of this Agreement shall be extended an additional year (i.e., from
June 1, 2003 to May 31, 2004) if at least 30 days before such June 30 no party
hereto shall have delivered written notice to the other party of its intention
to terminate this Agreement. Upon termination, and upon receipt of all monies
due BM&C from the Company, BM&C shall forthwith deliver to the Company all
property and documents of the Company then in the custody or control of BM&C.
Section 8. Indemnity. The Company agrees to indemnify and hold harmless
BM&C, its officers, directors and shareholders from and against any and all
claims, liabilities, damages, losses, costs and expenses, including, without
limitation, reasonable counsel fees and expenses, resulting from the performance
or observance by BM&C of any of the covenants or other obligations which it is
to perform or observe in this Agreement; provided that no indemnity shall be
applicable in the event of the gross negligence of BM&C.
Section 9. Confidentiality. BM&C agrees that all information which BM&C
obtains with respect to the Company which the Company keeps confidential (the
"Confidential Information") will not be used by BM&C in any way detrimental to
the Company, will be kept confidential by BM&C and its representatives (which
term includes its agents, representatives, attorneys, accountants, directors,
officers, employees and financial advisors), shall not, except as BM&C may be
legally obligated, without the prior written consent of the Company, be
disclosed by BM&C or its representatives, in any manner whatsoever, in whole or
in part, and shall not be used by BM&C or its representatives other than for the
services BM&C is to perform for the Company. BM&C further agrees to transmit the
Confidential Information only to those of its representatives who need to know
such information for the purpose of performing services for the Company and who
shall (a) be advised by BM&C of this Agreement, and (b) agree with BM&C to be
bound by the provisions hereof. BM&C shall be responsible for any breach of this
Agreement by its representatives.
Section 10. Notices. Any notice or other document given pursuant to or
with respect to this Agreement shall be in writing (including telex, telecopy
or similar electronic mail) and
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shall be deemed given when the same is delivered personally, deposited in the
United Sates mail, postage prepaid, registered or certified mail, addressed to
the party at the following respective addresses, or sent to the telephone number
or telecopy number and address set for the below or such other address,
telephone number or telecopy number and address as the party may from time to
time designate by written notice to the other party hereto:
the Company: BM&C:
000 Xxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxxx Attn.: Xxxxxxx X. Xxxxxxx
Tel. No. (000) 000-0000, ext. 274 Tel. No. (000) 000-0000
Fax No. (000) 000-0000 Fax No. (000) 000-0000
Section 11. General Provision.
11.1. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware applicable to contracts to
be performed entirely within the State of Delaware.
11.2. Amendments. This Agreement may be amended only in writing
by the consent of each of the parties hereto, evidenced by all necessary and
proper authority.
11.3. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and no
party hereto shall be bound by any communications between them on the subject
matter hereof unless such communications are in writing and bear a date
contemporaneous with or subsequent to the date hereof.
11.4. Counterparts. This Agreement may be executed in
counterparts, each of which when executed by the parties hereto shall be
deemed an original and all of which together shall be deemed the same
Agreement.
This Agreement has been executed on and is effective as of the date first
above written.
XXXXXXXX, XXXXXXX & COMPANY FM PRECISION GOLF
MANUFACTURING CORP.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxxxxxx X. Xxxxxxxx, President
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