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Exhibit 10.5.3
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, dated as of March 18, 1998 (the
"Agreement"), is entered by and between Day International Group, Inc., a
Delaware corporation (the "Company"), and SG Capital Partners LLC, a Delaware
limited liability company ("SG").
W I T N E S S E T H:
WHEREAS, the Company and its direct and indirect subsidiaries,
whether now existing or hereafter created or acquired, (collectively referred to
herein as the "Company Group") desire to receive financial and managerial
advisory services from SG, and SG desires to provide such services to the
Company Group; and
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
the parties hereto hereby agree as follows:
1. Engagement. Each member of the Company Group, jointly and
severally, hereby engages SG as a consultant, and SG hereby agrees to provide
financial and managerial advisory services to the Company Group, all on the
terms and subject to the conditions set forth below.
2. Services. (a) SG hereby agrees during the term of this Agreement
to assist, advise and consult with the respective Boards of Directors and
management of each member of the Company Group and their subsidiaries in such
manner and on such business, management and financial matters, and provide such
other financial and managerial advisory services, as may be reasonably requested
from time to time by the respective Boards of Directors of the members of the
Company Group, including but not limited to assistance in:
(i) the raising of additional debt and equity capital from time to time
for the Company Group;
(ii) establishing and maintaining banking, consulting, advising and other
business relationships for the Company Group;
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(iii) developing and implementing corporate and business strategy and
planning for the Company Group, including plans and programs for
improving operating, marketing and financial performance, budgeting
of future corporate investments, acquisition and divestiture
strategies, and reorganizational programs;
(iv) providing individuals to serve as directors or officers of the
Company Group; and
(v) providing such other consulting and advisory services as the Company
Group may reasonable request.
(b) Each member of the Company Group will furnish SG with such
information as SG believes appropriate to its engagement hereunder (all such
information so furnished being referred to herein as the "Information"). Each
member of the Company Group recognizes and confirms that (i) SG will use and
rely primarily on the Information and on information available from generally
recognized public sources in performing the services to be performed hereunder
and (ii) SG does not assume responsibility for the accuracy or completeness of
the Information and such other information.
3. Fee. In consideration of providing the foregoing services, the
Company will pay to SG an annual advisory fee of $158,162 payable semi-annually
in advance (the "Fee"), commencing on January 16, 1998. If SG or any of its
affiliates or designees invests additional equity in the Company Group or any of
its affiliates on one or more occasions after the date hereof, then, in each
such case, the Company Group and SG will negotiate in good faith to effect a
mutually acceptable increase to such advisory fee.
4. Payment of Expenses. The Company Group will also reimburse SG
promptly for SG's reasonable out-of-pocket costs and expenses incurred by SG or
its employees, agents or advisors in connection with the performance of SG's
duties hereunder including but not limited to any fees and expenses of any
reasonable legal, accounting or other professional advisors to SG engaged in
connection with the services being provided hereunder (collectively,
"Expenses").
5. Term, etc. (a) This Agreement shall be in effect until, and shall
terminate upon, the earlier to occur of (i) the tenth anniversary of the date
hereof and (ii) the date on which neither SG nor its affiliates directly or
indirectly owns any shares of the capital stock of the Company, and may be
earlier terminated by SG in its sole discretion, upon 15 days' prior written
notice to the Company.
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(b) Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of any of the members of the
Company Group, the successor corporation (or other entity) formed by such
consolidation or into which such company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, such company
under this Agreement with the same effect as if such successor corporation had
been a party thereto. No such consolidation, merger or conveyance, transfer or
lease of all or substantially all of the assets of any of the Company Group
shall have the effect of terminating this Agreement or of releasing such company
or any such successor corporation from its obligations hereunder.
(c) Upon any termination of this Agreement, any accrued and unpaid
installment of the Fee or portion thereof (pro-rated, with respect to the month
in which such termination occurs, for the portion of such month that precedes
such termination), and any unpaid and unreimbursed Expenses that shall have been
incurred prior to such termination (whether or not such Expenses shall then have
become payable), shall be immediately paid or reimbursed, as the case may be, by
the Company.
6. Indemnification. The obligations of the parties hereto are in
addition to, and shall in no way reduce or limit, the obligations thereof under
the Indemnification Agreement, dated as of March 18, 1998, between SG and the
Company with respect to such agreement, which shall remain in full force and
effect.
7. Independent Contractor Status. The parties agree that SG shall
perform services hereunder as an independent contractor, retaining control over
and responsibility for its own operations and personnel. Neither SG nor any of
its employees or agents shall, solely by virtue of this Agreement or the
arrangements hereunder, be considered employees or agents of any other party
hereto or any member of the Company Group nor shall any of them have authority
to contract in the name of any such person, except as expressly agreed to in
writing by such person.
8. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage pre-paid, (c)
sent by next day or overnight mail or delivery or (d) sent by telecopy or
telegram, as follows:
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(i) If to the Company Group, to:
Day International Group, Inc.
X.X. Xxx 000
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000
Attn.: Xxxxx X. Xxxxxxxx
or to such other person or address as the Company shall furnish to SG in
writing; and
(ii) If to SG, to:
SG Capital Partners LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other person or address as SG shall furnish to the Company in
writing.
All such notices, requests, demands, waivers and other
communications shall be deemed to have been received (w) if by personal
delivery, on the day after such delivery, (x) if by certified or registered
mail, on the fifth business day after the mailing thereof, (y) if by next-day or
overnight mail delivery, on the day delivered, or (z) if by telecopy or
telegram, on the day on which such telecopy or telegram was sent, provided that
a copy is also sent by certified or registered mail.
9. Entire Agreement. This Agreement and the Indemnification
Agreement contain the complete and entire understanding and agreement of each
party hereto with respect to the subject matter hereof and supersede all prior
and contemporaneous understandings, conditions and agreements, oral or written,
express or implied, in respect of the subject matter hereof.
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10. Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
11. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
12. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns, provided that no party hereto may assign any of its
rights or obligations under this Agreement without the express written consent
of each other party hereto. By operation of merger, this Agreement shall be
binding upon and inure to the benefit of the surviving entity of a merger. This
Agreement is not intended to confer any right or remedy hereunder upon any
person other than the parties to this Agreement and their respective successors
and permitted assigns.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAW OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS
OF LAWS.
14. Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought, and acknowledged by the other party. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party granting such waiver in any other
respect or at any other time. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity or otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
DAY INTERNATIONAL GROUP, INC.
By:_________________________________
Name: Xxxxxxxxx X. Vanden Beukel
Title: Vice President, Secretary
SG CAPITAL PARTNERS LLC
By:_________________________________
Name:
Title:
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