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EXHIBIT 10.16
MANAGEMENT CONSULTING AGREEMENT dated
as of July 2, 1997, between ADVANCED
ACCESSORY SYSTEMS CANADA INC./LES SYSTEMES
D'ACCESSOIRE ADVANCED CANADA INC., a
corporation existing under the laws of
Quebec (the "Company") and LES PLACEMENTS
XXXX XXXXXXX INC., a corporation existing
under the laws of Canada (the
"Consultant").
Reference is made to the Asset Purchase Agreement dated as of the date
hereof (as amended, the "Purchase Agreement"), among Xxxx Sports Corp., a
Delaware corporation ("Xxxx Sports"), Xxxx Sports Canada Inc., a corporation
existing under the laws of Quebec ("Xxxx Canada"), and the Company. Pursuant
to the Purchase Agreement, the Company has acquired substantially all of the
assets of the SportRack division of Xxxx Canada.
WHEREAS the Company desires to retain the Consultant to perform
management consulting services for the Company and the Consultant desires to
perform such management consulting services for the Company upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
SECTION 1. RETENTION OF CONSULTANT.
The Company hereby retains the Consultant as a consultant, and the
Consultant hereby accepts such retention by the Company, and hereby agrees to
perform such services for the Company in respect of its business, as directed
by the Board of Directors of the Company ("the Board").
SECTION 2. TERM.
The retention of the Consultant hereunder shall be for a period (the
"Initial Period") commencing on the date hereof (the "Commencement Date") and
ending on June 30, 2000 or such earlier date upon which the retention of the
Consultant shall terminate in accordance with the provisions hereof. Unless
terminated earlier in accordance with the provisions hereof, the retention of
the Consultant hereunder shall continue after the end of the Initial Period for
an additional two (2) year period upon thirty (30) days written notice to the
Company prior to the termination of the Initial Period from the Consultant and,
if the Consultant has so exercised its right to renew its retention for such
additional two (2) year period, for successive one (1) year periods unless the
Company or the Consultant shall give the other party written notice to
terminate such retention no later than thirty (30) days prior to the
commencement of any such one (1) year period. The period commencing on the
Commencement Date and ending on the date of termination of the Consultant's
retention hereunder shall be called the "Term", and the date on which the
Consultant's retention hereunder shall terminate shall be called the
"Termination Date".
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SECTION 3. DUTIES.
(a) The Consultant hereby acknowledges and agrees that it is an
essential condition of this Agreement that the Consultant make available
to the Company the services of an individual to be jointly designated in
writing by the Consultant and the Company (the "Designated Person") in
connection with the Consultant's performance of its services hereunder.
The Consultant shall make the Designated Person available to provide such
services throughout the Term and, subject to Section 3(b), on a full-time
basis.
(b) The Consultant covenants and agrees that it shall, and shall
cause the Designated Person to, faithfully and diligently serve the
Company during the Term and act in all respects as a good manager and
administrator of the affairs of the Company, and shall, and shall cause
the Designated Person to, use its/his best efforts to promote and advance
the interests of the Company and, in particular, to increase the profits
thereof. The Consultant shall cause the Designated Person to devote
substantially all of his business time, attention and ability to the
business of the Company and to be subject to and abide by the polices and
procedures generally applicable to employees of the Company and/or any of
its affiliates.
(c) During the Term, the Designated Person shall serve as the
President of the Company and shall advise the Company concerning such
matters that relate to the business and affairs of the Company and its
affiliates as the Company shall reasonably request, and shall perform
such duties as are consistent therewith as the Board shall designate.
SECTION 4. [INTENTIONALLY OMITTED]
SECTION 5. COMPENSATION.
(a) The Company (or, at the Company's option, any subsidiary or
affiliate thereof) shall pay to the Consultant an annual consulting fee
(the "Base Fee") during the Term of one hundred and seventy-six thousand
Canadian dollars (Cnd. $176,000), payable in equal monthly installments,
plus all applicable "GST" and "QST" (as such terms are defined in the
Purchase Agreement).
(b) During the Term, the Consultant shall be eligible to
participate in incentive compensation or bonus plans that the Board
shall implement for the Consultant, which will generally provide the
Consultant the opportunity to receive an annual cash bonus in the range
of up to fifty percent (50 %) of the Base Fee, subject to the achievement
by the Consultant of performance goals established by the Board in its
sole discretion.
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SECTION 6. BUSINESS EXPENSES: BENEFITS.
The Company (of, at the Company's option, any subsidiary or affiliate
thereof) shall reimburse the Consultant, in accordance with its practice from
time to time, for all reasonable and necessary documented expenses and other
disbursements incurred by the Designated Person for or on behalf of the Company
in the performance of the Consultant's duties hereunder.
SECTION 7. INVOLUNTARY TERMINATION.
(a) If the Designated Person is incapacitated or disabled in a
manner that would prevent him from performing the Consultant's duties
hereunder for a period of one hundred and eighty (180) consecutive days,
the Term and the retention of the Consultant under this Agreement shall
cease and the Company shall have no further obligation hereunder.
(b) If the Designated Person dies during the Term, the Term and the
Consultant's retention hereunder shall cease as of the date of the
Designated Person's death and the Company shall have no further
obligation hereunder.
SECTION 8. TERMINATION FOR CAUSE.
The Company may terminate the Term and the retention of the Consultant
hereunder at any time for Cause (as hereinafter defined) (such termination
being referred to herein as a "Termination For Cause") by giving the Consultant
written notice of such termination, effective immediately upon the giving of
such notice to the Consultant. As used in this Agreement, "Cause" means (a)
the Designated Person's (i) commission of an act (x) constituting a felony or
(y) involving fraud, theft or dishonesty which is not a felony and which
materially and adversely affects the Company or could reasonably be expected to
materially and adversely affect the Company, (ii) repeated failure to be
reasonably available to perform the Consultant's duties, which, if curable,
shall not have been cured within ten (10) business days of written notice
thereof from the Company, (iii) repeated failure to follow the lawful
directions of the Company, which, if curable, shall not have been cured within
ten (10) business days of written notice thereof from the Company, (iv)
material breach of any agreement with the Company (including the noncompete
provisions set forth in Section 14 hereof) which, if curable, shah not have
been cured within ten (10) business days of written notice thereof from the
Company, (v) the resignation from, or termination for any reason whatsoever by,
the Consultant or the Designated Person, or (b) the sale of all or
substantially all of the assets of the Consultant or the occurrence of a Change
of Control. As used herein, the term "Change of Control" shall mean the
Designated Person ceasing to own beneficially and of record fifty-one percent
(51%) of all classes of voting capital stock of the Consultant.
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SECTION 9. TERMINATION WITHOUT CAUSE.
The Company may terminate the Term and the retention of the Consultant
hereunder without Cause (such termination being hereinafter referred to as a
"Termination Without Cause") by giving the Consultant written notice of such
termination, which notice shall be effective on the date specified therein but
not earlier than the date on which such notice is given.
SECTION 10. EFFECT OF TERMINATION.
(a) Upon the termination of the Term and the retention of the
Consultant hereunder due to an Involuntary Termination or Termination for
Cause, neither the Consultant, the Designated Person nor his beneficiary
or estate shall have any, further rights or claims against the Company
under this Agreement, except to receive (i) the unpaid portion, if any,
of the Base Fee provided for in Section 5(a), computed on a pro rata
basis to the Termination Date (based on the actual number of days elapsed
over the actual number of days of the year in which such termination
occurs), (ii) any unpaid accrued benefits of the Designated Person due
hereunder, and (iii) reimbursement for any expenses for which the
Consultant or the Designated Person shall not have been reimbursed as
provided in Section 6.
(b) Upon the termination of the retention of the Consultant
hereunder due to a Termination Without Cause, neither the Consultant, the
Designated Person nor his beneficiary or estate shall have any further
rights or claims against the Company under this Agreement except the
right to receive (i) the amounts set forth in Section 10(a), (ii) the
prorated portion of any bonus earned by the Consultant in such year under
any Company incentive compensation or bonus plan in which the Consultant
participates, and (iii) the Base Fee through the date which is twelve
(12) months from the Termination Date, payable in such installments over
the applicable period as the Base Fee is generally paid to the
Consultant.
SECTION 11. INSURANCE.
The Company may, for its own benefit, in its sole discretion, maintain
"key-man" life and disability insurance policies covering the Designated
Person. The Designated Person will cooperate with the Company and provide such
information or other assistance as the Company may reasonably request in
connection with the Company's obtaining and maintaining such policies.
SECTION 12. DISCLOSURE OF INFORMATION.
The Consultant shall not, at any time during the Term or thereafter,
disclose to any person, firm, corporation or other business entity, except as
required by law, any non-public information (including, without limitation,
non-public information obtained prior to the date
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hereof) concerning the business, clients or affairs of the Company or any
subsidiary or affiliate thereof for any reason or purpose whatsoever (except as
incident to its performance of this Agreement), nor shall the Consultant make
use of any of such non-public information for its own purpose or for the
benefit of any person, firm, corporation or other business entity except the
Company or any subsidiary or affiliate thereof. Upon the termination of the
Term, the Consultant shall return to the Company all property of the Company or
any subsidiary or affiliate thereof then in its possession and all books,
records, computer tapes or discs and all other material containing non-public
information concerning the business, clients or affairs of the Company or any
subsidiary or affiliate thereof.
SECTION 13. RIGHT TO INVENTIONS.
The Consultant shall promptly disclose, grant and assign to the Company
for its sole use and benefit any and all marks, designs, logos, inventions,
improvements, technical information and suggestions relating in any way to the
Business (as defined in the Purchase Agreement) conducted by the Company, which
it may develop or which may be acquired by the Consultant during the Term
(whether or not during usual working hours), together with all trademarks,
patent applications, letters patent, copyrights and reissues thereof that may
at any time be granted for or upon any such xxxx, design, logo, invention,
improvement or technical information. In connection therewith:
(i) the Consultant shall, without charge, but at the expense
of the Company, promptly at all times hereafter execute and deliver
such applications, assignments, descriptions and other instruments as
may be necessary or proper in the opinion of the Company to vest title
to any such marks, designs, logos, inventions, improvements, technical
information, suggestions, trademarks, patent applications, patents,
copyrights or reissues thereof in the Company and to enable it to
obtain and maintain the entire right and title thereto throughout the
world;
(ii) the Consultant shall render to the Company at its expense
(including a reasonable payment for the time involved in case the
Consultant is no longer being retained by the Company based on the
appropriate pro rata portion of the Base Fee) all such assistance
as it may require in the prosecution of applications for said
trademarks, patents, copyrights or reissues thereof, in the
prosecution or defense of interferences which may be declared
involving any said trademarks, applications, patents or copyrights
and in any litigation in which the Company may be involved relating
to any such trademarks, patents, inventions, improvements or
technical information; and
(iii) for the avoidance of doubt, the foregoing provisions
shall be deemed to include an assignment of future copyright in
accordance with Section 37 of the Copyright Act of 1986 and any
amendment or re-enactment thereof or any similar Canadian law.
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SECTION 14. RESTRICTIVE COVENANT.
(a) The Consultant acknowledges and recognizes that the Business
(as defined in the Purchase Agreement) has been conducted, and substantial
sales of its products have been made, throughout the United States and
Europe, and further acknowledges and recognizes the highly competitive
nature of the industry in which the Business is involved. Accordingly,
in consideration of the premises contained herein, the consideration to
be received hereunder and in consideration of and as an inducement to the
Company to consummate the transactions contemplated by the Purchase
Agreement, the Consultant shall not, during the Non-Competition Period
(as defined below) (i) directly or indirectly engage, whether or not such
engagement shall be as a partner, stockholder, affiliate, director,
officer, employee, independent contractor or other participant, in any
Competitive Business, or represent in any way any Competitive Business,
whether or not such engagement or representation shall be for profit,
(ii) interfere with, disrupt or attempt to disrupt the relationship,
contractual or otherwise, between the Company and any other person or
entity, including, without limitation, any customer, supplier or employee
of the Company, (iii) induce any employee of the Company or the Business
to terminate his or her employment with the Company or the Business or to
engage in any Competitive Business in any manner described in the
foregoing clause (i) (including as an officer or director of any
Competitive Business), or (iv) assist or induce any other person or
entity to engage in any Competitive Business in any manner described in
the foregoing clause (i) (including as an officer or director of any
Competitive Business).
(b) As used herein, the term "Non-Competition Period" shall mean
the period commencing on the date hereof and terminating on the fifth
anniversary of the Termination Date; and the term "Competitive Business"
shall mean any business in any State of the United States or anywhere in
the world outside the United States engaged in the Business.
(c) The Consultant understands that the foregoing restrictions may
limit its ability to earn a livelihood in a business similar to the
business of the Company or any subsidiary or affiliate thereof, but it
nevertheless believes that it has received and will receive sufficient
consideration and other benefits to justify clearly such restrictions.
SECTION 15. ENFORCEMENT: SEVERABILITY; ETC.
It is the desire and intent of the parties that the provisions of this
Agreement shall be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of
such provision in the particular jurisdiction in which such adjudication is
made.
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SECTION 16. REMEDY.
The Consultant acknowledges and understands that the provisions of this
Agreement are of a special and unique nature, the loss of which cannot be
adequately compensated for in damages by an action at law, and that the breach
or threatened breach of the provisions of this Agreement would cause the
Company irreparable harm. In the event of a breach or threatened breach by the
Consultant of the provisions of this Agreement, the Company shall be entitled
to an injunction restraining it and the Designated Person from such breach.
Nothing contained in this Agreement shall be construed as prohibiting the
Company from or limiting the Company in pursuing any other remedies available
for any breach or threatened breach of this Agreement.
SECTION 17. NOTICES.
All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given and delivered if personally delivered or if sent by
nationally-recognized overnight courier, by telecopy, or by registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
if to the Company, to the address set forth in the Purchase Agreement:
with copies to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000;
if to the Consultant, to:
Les Placements Xxxx Xxxxxxx Inc.
000 xx Xxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxxx, Xxxxxx Xxxxxx
X0X 0X0
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party or parties in writing in accordance herewith. Any
such notice or communication shall be deemed to have been received (i) in the
case of personal delivery, on the date of such delivery, (ii) in the case of
nationally-recognized overnight courier, on the next business day after the
date when sent, (iii) in the case of telecopy transmission, when received, and
(iv) in the case of mailing, on the third business day following that on which
the piece of mail containing such communication is posted.
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SECTION 18. BINDING-AGREEMENT; BENEFIT.
The provisions of this Agreement will be binding upon, and will inure
to the benefit of, the respective heirs, legal representatives, successors and
assigns of the parties.
SECTION 19. GOVERNING LAW.
This Agreement will be governed by, and construed and enforced in
accordance with, the laws of the Province of Quebec and the laws of Canada
applicable therein (without giving effect to principles of conflicts of laws).
SECTION 20. WAIVER OF BREACH.
The waiver by either party of a breach of any provision of this
Agreement must be in writing and shall not operate or be construed as a waiver
of any other breach.
SECTION 21. ENTIRE AGREEMENT; AMENDMENTS.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements or
understandings between the parties with respect thereto. The parties hereto
hereby agree to terminate and cancel the Consulting Agreement between the
Consultant and Xxxx Sports Canada Inc. (as assigned to the Company by the
Purchase Agreement) dated May 12, 1995.
SECTION 22. HEADINGS.
The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 23. ASSIGNMENT.
This Agreement is personal in its nature and the parties shall not,
without the consent of the other, assign or transfer this Agreement or any
rights or obligations hereunder; provided, however, that the Company may assign
this Agreement to any of its subsidiaries and affiliates.
SECTION 24. COUNTERPARTS.
This Agreement may be executed in counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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SECTION 25. GENDER.
Any reference to the masculine gender shall be deemed to include the
feminine and neuter genders unless the context otherwise requires.
SECTION 26. GENERAL.
(a) The parties acknowledge and covenant to have been represented
by legal counsel in the discussion, negotiation and execution of this
Agreement. The parties further acknowledge and covenant that the
provisions of this Agreement have been freely and fully discussed and
negotiated and that the execution of this Agreement constitutes and is
deemed to constitute full and final proof of the foregoing. The parties
acknowledge and covenant to have read, examined, understood and approved
all the provisions of this Agreement, including, without restriction, any
schedules attached hereto and forming part hereof.
(b) The Consultant acknowledges having obtained all information
useful or necessary to take an enlightened decision to execute this
Agreement.
SECTION 27. CURRENCY.
All references herein to dollars or $ mean the lawful currency of
Canada.
SECTION 28. COMPLIANCE.
The Consultant, to the extent permissible under applicable law, hereby
covenants to cause the Designated Person to comply with all of the provisions
of this Agreement.
SECTION 29. LANGUAGE.
The parties acknowledge that they have requested that this Agreement be
drawn up in the English language only. Les parties reconnaissent avoir exige
que cette convention soit redigee en anglais seulement.
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IN WITNESS WHEREOF, the parties-hereto have executed and delivered this
Agreement as of the date first written above.
ADVANCED ACCESSORY SYSTEMS
CANADA INC./LES SYSTEMS
D'ACCESSOIRE ADVANCED CANADA INC.
By:
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Name:
Title:
LES PLACEMENTS XXXX XXXXXXX INC.
By:
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Name:
Title:
