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EXHIBIT 10.18
CONSULTING SERVICES AGREEMENT
This CONSULTING SERVICES AGREEMENT (this "Agreement") is made
and entered into this 15th day of December, 2000 and is effective the 1st day of
January 2000 by and between MR & Associates, a Pennsylvania limited partnership
("M&R"), and S2 Golf Inc., a New Jersey corporation ("S2").
WHEREAS, S2 is engaged in the business of manufacturing and
selling men's and women's golf equipment through a nationwide dealer network;
and
WHEREAS, in connection with such business, S2 desires to
retain M&R to provide administrative and financial consulting assistance as may
be necessary to enable S2 to conduct its business (the "Consulting Assistance");
and
WHEREAS, S2 desires to contract with M&R, and M&R desires to
accept such engagement from S2, for the provision of the Consulting Assistance
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein and other good and valuable consideration, and
intending to be legally bound hereby, M&R and S2 agree as follows:
1. ADMINISTRATIVE AND OPERATING SERVICES.
(a) For the period of time extending from January 1, 2000
until December 31, 2001, and as shall be renewed on an annual basis unless
either party provides the other with at least thirty (30) days' written notice
prior to any such annual renewal that this Agreement will not be so renewed, M&R
hereby accepts such engagement to provide the Consulting Assistance, subject to
the prevailing conditions affecting S2's business and subject to the terms and
conditions of this Agreement. Such Consulting Assistance shall include, but not
necessarily be limited to, the following:
i) financial counseling, including negotiation and
placement of bank financings and refinancings;
(ii) making available certain legal services;
(iii) assisting in investment decisions:
(iv) assisting in procuring insurance coverages;
ii) assisting in employee benefit plan implementation;
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(vi) assistin g in finding, negotiating and
closing any and all acquisitions to be made
by S2; and
(vii) assisting in any sale or divestiture of a
substantial portion or all of S2.
(b) As compensation for its efforts under this
Agreement, S2 shall pay to M&R a consulting fee of (i) $60,000 (for
calendar year 2000 services rendered) on or before December 31, 2000
and (ii) $5,000 per month, payable in advance each month beginning
January 1, 2001.
2. INDEMNITY.
(a) S2 shall indemnify and hold M&R, its employees,
officers, directors, shareholders, agents and servants harmless from
any and all claims, suits, demands, losses and liability, except as may
arise from the gross negligence or willful act of M&R, its employees,
officers, directors, shareholders, agents or servants, whether based in
contract, tort (including strict liability), or otherwise, asserted by
any and all persons and organizations whatsoever, including S2
employees, arising from, related to, or as a consequence of any act or
omission by M&R or its employees or representatives in providing any
service hereunder.
(b) M&R shall indemnify and hold S2 harmless from any
and all claims, suits, demands, losses and liability, asserted by any
and all persons and organizations whatsoever arising from the gross
negligence or willful misconduct of M&R, its employees, officers,
directors, shareholders, agents or servants.
3. CONSEQUENTIAL AND OTHER DAMAGES. M&R shall not be
liable to S2 for any special, indirect, incidental or consequential
damages whatsoever which in any way arise out of, relate to, or are a
consequence of, M&R's or its employees' performance or nonperformance
under this Agreement.
4. RELATIONSHIP. M&R and S2 shall in no event be
construed as joint venturers or partners of each other as a consequence
of the relationship contemplated under this Agreement. Neither M&R nor
S2 shall have the power to bind or obligate the other.
5. ASSIGNMENT.
M&R may sell, assign or otherwise transfer its right,
title and interest in and under this Agreement, in whole or in part (i)
to any entity controlled, directly or indirectly, by Xxxxxxx X. Xxxxxx
or Xxxxxx X. Xxxx or both of them, or (ii) upon the prior written
consent of S2, which consent shall not be unreasonably withheld, to any
entity not controlled, directly or indirectly, by Xxxxxxx X. Xxxxxx or
Xxxxxx X. Xxxx or both of them. S2 may sell, assign or otherwise
transfer its right, title and interest in and under this Agreement, in
whole or in part, to any entity controlling, controlled by or under
common control with S2 or any entity that purchases all or
substantially all of S2's assets. Any assignment under this paragraph
shall be of no force and effect unless and until the
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assignee thereunder shall assume, in writing, any and all obligations
(or in the event of a partial assignment, such obligations as are
reasonably appropriate) of the assignor arising under this Agreement.
6. GENERAL MATTERS.
(a) CAPTIONS. The captions utilized in this Agreement
are for the purposes of identification only and shall not control or
affect the meaning or construction of any of the provisions hereof.
(b) INTEGRATION. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and will supersede all previous negotiations, representations,
commitments and writing.
(c) MODIFICATION AND WAIVER. This Agreement may not
be amended, released, discharged, rescinded or abandoned, except by a
written agreement duly executed by each of the parties hereto. The
failure of any party hereto at any time to enforce any of the
provisions of this Agreement will in no way constitute or be construed
as a waiver of such provision or of any other provision hereof, nor in
any way affect the validity of, or the right thereafter to enforce,
each and every provision of this Agreement.
(d) GOVERNING LAW. This Agreement and its validity,
construction, administration and all rights hereunder, will be governed
by the laws of the Commonwealth of Pennsylvania without regard to its
conflict of laws provisions. Any suit or proceeding arising out of,
relating to or mentioning this Agreement shall be commenced only in a
state or Federal court located in Pittsburgh, Pennsylvania, and each
party to this Agreement hereby consents to the jurisdiction and venue
of such court.
(e) SEVERABILITY. The invalidity or unenforceability
of any particular provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
(f) NOTICES. Wherever provision is made in this
Agreement for the giving, service or delivery of any notice, statement
or other instrument, such notice shall be in writing and shall be
deemed to have been duly given, served and delivered, if delivered by
hand or mailed by United States registered or certified mail, addressed
as follows:
S2 Golf Inc.
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
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MR & Associates
Xxxxx Xxxxxxx Xxxxxx
Xxxxx 00 Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Each party hereto may change its mailing address by giving to the
other, by hand delivery or United States registered or certified mail,
written notice of election to change such address and of such new
address.
(g) COUNTERPARTS. This Agreement may be executed
simultaneously in several counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, and intending to be legally bound
hereby, the Parties have executed this Agreement as of the date first
above written.
MR & ASSOCIATES
By: Xxxxxx Xxxx & Co., Incorporated,
a Pennsylvania corporation,
its sole general partner
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, President
S2 GOLF INC.
By: /S/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx, President
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