EXHIBIT 10.43
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INTERCOMPANY MANAGEMENT CONSULTING AGREEMENT
THIS MANAGEMENT CONSULTING AGREEMENT ("Agreement"), is executed as of the
16th day of August, 1995, between FLEX-O-LITE, INC., a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ PRODUCTS, INC., a Delaware corporation ("Consultant").
W I T N E S S E T H:
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WHEREAS, the Consultant has and/or has access to personnel who are highly
skilled in the field of rendering advice to businesses such as the Company; and
WHEREAS, the Company desires to retain Consultant to provide business and
financial advice to the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereto do hereby agree as follows:
1. The Company hereby retains the Consultant, through the Consultant's own
personnel or through personnel available to the Consultant, to render consulting
services from time to time to the Company and its subsidiaries (whether now
existing or hereafter acquired), in connection with their financial and business
affairs, their relationships with their lenders, stockholders and other third-
party associates or affiliates, and the expansion of their businesses. The term
of this Agreement shall commence the date hereof and continue until August 16,
2005, unless extended, or sooner terminated, as provided in paragraph 4 below.
The Consultant's personnel shall be reasonably available to the Company's
managers, auditors and other personnel for consultation and advice, subject to
Consultant's reasonable convenience and scheduling. Services may be rendered at
the Consultant's offices or at such other locations selected by the Consultant
as the Company and the Consultant shall from time to time agree.
2. The Company shall pay the Consultant an annual fee as shall be agreed
to by the parties (and, in the event of no agreement by the parties, the amount
paid in the immediately preceding year), in each case payable in quarterly
installments on the 30th day of March, June, September and December of each
year, starting September 30, 1995.
3. Out-of-pocket expenses (including, without limitation, an allocable
amount of the Consultant's overhead expenses, as determined by the Consultant in
its sole discretion) incurred by the Consultant and its personnel in performing
services hereunder to the Company and its subsidiaries shall be promptly
reimbursed to it by the Company upon the Consultant's rendering of a statement
therefor, together with supporting data as the Company shall reasonably require.
4. Notwithstanding the foregoing, the Company shall not be required to pay
the fees under Section 3 (without limiting the obligation for payment of the
fees, reimbursements and payments provided under Sections 7 and 8 of this
Agreement which shall be due and payable in all events), (a) if and to the
extent expressly prohibited by the provisions of any credit, stock, financing or
other agreements or instruments binding upon the Company, its subsidiaries or
properties, (b) if the Company, or any of its subsidiaries, has not paid
interest on any interest payment date or has postponed or not made any principal
payments with respect to any of their indebtedness on any scheduled payment
dates, or (c) if the Company has not paid dividends on any dividend payment date
as set forth in its certificate of incorporation or as declared by its Board of
Directors, or has postponed or not made any redemptions on any redemption date
as set forth in its certificate of incorporation or any certificate of
designation with respect to its preferred stock, if any. Any payments otherwise
owed hereunder, which are not made for any of the above-mentioned reasons, shall
not be cancelled but rather shall accrue, and shall be payable by the Company
promptly when, and to the extent, that the Company is no longer prohibited from
making such payments and when the Company has become current with respect to
such principal or interest payments, has become current with respect to such
dividends and has made such redemptions with respect to such preferred stock, if
any. Any payment required hereunder which is not paid when due shall bear
interest at the rate of ten percent (10%) per annum.
5. This Agreement shall be automatically renewed for successive one-year
terms starting August 16, 2005 unless either party hereto, within sixty (60)
days prior to the scheduled renewal date, notifies the other party as to its
election to terminate this Agreement. Notwithstanding the foregoing, this
Agreement may be terminated by not less than ninety (90) days' prior written
notice from the Company to the Consultant at any time after (i) substantially
all of the stock or substantially all of the assets of the Company are sold to
any entity unaffiliated with the Consultant and/or a majority of the Company's
stockholders immediately prior to such sale, or (ii) the Company is merged or
consolidated into another entity unaffiliated with the Consultant and/or a
majority of the Company's stockholders immediately prior to such merger and the
Company is not the survivor of such transaction.
6. The Consultant shall have no liability to the Company on account of (i)
any advice which it renders to the Company, provided the Consultant believed in
good faith that such advice was useful or beneficial to the Company at the time
it was rendered, or (ii) the Consultant's inability to obtain financing or
achieve other results desired by the Company or Consultant's failure to render
services to the Company at any particular time or from time to time, or (iii)
the failure of any transaction to meet the financial, operating or other
expectations of the Company. The Company's sole remedy for any claim under this
Agreement shall be termination of this Agreement.
7. The Company will, to the fullest extent permitted by applicable law,
indemnify and hold harmless the Consultant, its affiliates and associates, and
each of the respective owners, partners, officers, directors, employees and
agents of each of the foregoing, from and against any loss, liability, damage,
claim or expenses (including the fees and expenses of counsel) arising as a
result or in connection with this Agreement, the Consultant's services hereunder
or other activities on behalf of the Company and its subsidiaries.
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8. The amount of any payments paid by the Company under this Agreement
shall be increased by the amount, if any, of any taxes (other than income taxes)
or other governmental charges levied in respect of such payments, so that the
Consultant is made whole for such taxes or charges.
9. a. This Agreement sets forth the entire understanding of the parties
with respect to the Consultant's rendering of services to the Company. This
Agreement may not be modified, waived, terminated or amended except expressly by
an instrument in writing signed by the Consultant and the Company.
b. This Agreement may not be assigned by the Company without the
consent of the Consultant, but may be assigned by the Consultant to any
affiliate of the Consultant, as the term "affiliate" is used in the federal
securities laws, and may be assigned or pledged by the Consultant to any
financial institution or other lender. Any permitted assignment of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns.
c. In the event that any provision of this Agreement shall be held
to be void or unenforceable in whole or in part, the remaining provisions of
this Agreement and the remaining portion of any provision held void or
unenforceable in part shall continue in full force and effect.
d. Except as otherwise specifically provided herein, notice given
hereunder shall be deemed sufficient if delivered personally or sent by
registered or certified mail to the address of the party for whom intended at
the principal executive offices of such party, or at such other address as such
party may hereinafter specify by written notice to the other party.
e. No waiver by any party of any breach of any provision of this
Agreement shall be deemed a continuing waiver or a waiver of any preceding or
succeeding breach of such provision or of any other provision herein contained.
f. The Consultant and its personnel shall, for purposes of this
Agreement, be independent contractors with respect to the Company.
g. This Agreement shall be governed by the internal laws (and not
the law of conflicts) of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
FLEX-O-LITE, INC.
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ PRODUCTS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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