Exhibit 10.20
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is entered into as of the
27th day of September, 1999, by and between ICON Health & Fitness, Inc., a
Delaware corporation ("ICON"), HF Holdings, Inc., a Delaware corporation
("Holdings" and, together with ICON and each of its other direct and indirect
subsidiaries signatory hereto or hereafter becoming party hereto by executing a
counterpart signature page hereof, the "Company") and Scott R. Watterson
("Watterson").
WHEREAS, Holdings was formed for the purpose of effecting an overall plan
to restructure the capitalization of ICON (the "Restructuring"), and becoming a
direct parent of ICON on terms and subject to the conditions of (a) the Exchange
Offer and Consent Solicitation Statement, dated July 30, 1999, as supplemented,
for all outstanding 13% Senior Subordinated Notes due 2002 of ICON, 15% Senior
Secured Discount Notes due 2004 of IHF Holdings, Inc., a Delaware corporation,
and 14% Senior Discount Notes due 2006 of ICON Fitness Corporation, a Delaware
corporation, and (b) the Agreement and Plan of Merger, dated as of September 27,
1999, among Holdings, HF Acquisition, Inc., a Delaware corporation, and ICON.
WHEREAS, Watterson has provided advisory and other services, and is
providing equity financing (the "Equity Investment"), in connection with the
Restructuring; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Company desires to retain Watterson to be available to provide certain
management and advisory services to the Company as requested, and Watterson
desires to provide such services;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the making of the Equity Investment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Services. Watterson agrees that, during the term of this Agreement (the
"Term"), and separate and apart from any employment arrangement with the Company
or any continuation of such employment, he will:
(a) provide the Company, at its request, with advice in connection with
the negotiation and consummation of agreements, contracts, documents
and instruments necessary to provide the Company with financing from
banks or other financial institutions or other entities on terms and
conditions satisfactory to the Company; and
(b) provide ICON, at its request, with financial, managerial and
operational advice in connection with its day-to-day operations,
including, without limitation, advice with respect to the
development and implementation of strategies for improving the
operating, marketing and financial performance of ICON.
2. Payment of Fees. The Company hereby agrees to:
(a) pay to Watterson a fee in the amount of $208,500 in connection with
the Restructuring, together with reimbursement of the fees and
disbursements of Hutchins, Wheeler & Dittmar, P.C., counsel to
Watterson incurred by Watterson in connection with the Restructuring
through the Closing Date (as defined in the Merger Agreement) in
connection with the Restructuring, such fees and expenses being
payable by ICON at the closing of the Restructuring or, if the
Restructuring is not consummated, promptly after the time the
Company has abandoned the Restructuring; and
(b) subject to the terms of the credit agreement from time to time in
effect providing for working capital financing to ICON, during the
Term, pay to Watterson a management fee in an amount not to exceed
$33,500 per annum, such fee being payable by ICON quarterly in
arrears, with each payment being made sixty (60) days after the end
of each fiscal quarter of the Company.
Each payment made pursuant to this Section 2 shall, at the request of
Watterson, be paid by wire transfer of immediately available federal funds
to such account(s) as Watterson may specify to the Company in writing
prior to such payment.
3. Term. This Agreement shall commence on the Closing Date and continue in full
force and effect, unless and until terminated by mutual consent of the parties,
for so long as Watterson remains available and willing to carry on the business
of providing services of the type described in Section 1, regardless of his
continued employment by the Company or any affiliate thereof; provided, however,
that (a) either party may terminate this Agreement following a material breach
of the terms of this Agreement by the other party hereto and a failure to cure
such breach within 30 days following written notice thereof, (b) Watterson may
terminate this Agreement upon not less than 60 days written notice to the
Company and (c) the Company may terminate this Agreement upon the termination
(as opposed to any assignment) of the Management Agreement entered into between
Bain Capital Partners IV, L.P. and the Company, dated an even date herewith; and
provided further that each of (x) the obligations of the Company under Section
4, (y) any and all accrued and unpaid obligations of the Company owed under
Section 2 and (z) the provisions of Section 7 shall survive any termination of
this Agreement to the maximum extent permitted under applicable law.
4. Expenses; Indemnification.
(a) Expenses. The Company agrees to pay on demand all legal expenses
incurred by Watterson in connection with this Agreement (including all
legal expenses incurred in the collection of fees hereunder) and in
connection with such transactions as are approved by the Board of
Directors of the Company, ICON or Holdings; provided, however, that
Watterson's right to receive payment of any such legal expenses is limited
to (i) such expenses being incurred at such time as Watterson is not
employed by the Company, and (ii) a total payment to Watterson for such
expenses incurred in any one year of no more than $10,000.
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(b) Indemnity and Liability. In consideration of the execution and
delivery of this Agreement and the provision of the Equity Investment by
Watterson, the companies constituting the "Company" hereby jointly and
severally agree to indemnify, exonerate and hold Watterson and his agents,
advisors and attorneys (collectively, the "Indemnitees") free and harmless
from and against any and all actions, causes of action, suits, losses,
liabilities and damages, and expenses in connection therewith, including
without limitation attorneys' fees and disbursements (collectively,
"Liabilities"), incurred by the Indemnitees or any of them solely as a
result of Watterson's role or status as an officer, director or
shareholder of ICON, Holdings, IHF Capital, Inc., ICON Fitness
Corporation, IHF Holdings, Inc., ICON of Canada, Inc., ICON International
Holdings, Inc., Universal Technical Services, and Jumpking, Inc.
(collectively, the "Indemnified Liabilities"), except for any such
Indemnified Liabilities arising on account of such Indemnitee's willful
misconduct or by reason of any agreement to which Watterson at any time is
or was or becomes a party in his own individual capacity, and if and to
the extent that the foregoing undertaking may be unenforceable for any
reason, the companies constituting the "Company" hereby jointly and
severally agree to make the maximum contribution to the payment and
satisfaction of such otherwise payable Indemnified Liabilities which is
permissible under applicable law.
5. Assignment, etc. Except as provided below, neither party shall have the right
to assign this Agreement. Watterson acknowledges that his services under this
Agreement are unique. Accordingly, any purported assignment by Watterson (other
than as provided below) shall be void. Notwithstanding the foregoing, (a)
Watterson may assign all or part of his rights and obligations hereunder to any
affiliate of Watterson which provides services similar to those called for by
this Agreement, in which event Watterson shall be released of all of his rights
and obligations hereunder and (b) the provisions hereof for the benefit of
Watterson shall inure to the benefit of his successors and assigns.
6. Amendments and Waivers. No amendment or waiver of any term, provision or
condition of this Agreement shall be effective, unless in writing and executed
by each of Watterson and the Company. No waiver on any one occasion shall extend
to or effect or be construed as a waiver of any right or remedy on any future
occasion. No course of dealing of any person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this Agreement
or a waiver of any right or remedy of any party hereto.
7. Miscellaneous.
(a) Choice of Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of
Delaware without giving effect to any choice or conflict of law
provision or rule that would cause the application of the domestic
substantive laws of any other jurisdiction.
(b) Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of or based upon this
Agreement or the subject matter hereof shall be brought and
maintained exclusively in the federal and state courts of the State
of Utah. Each of the parties hereto by execution hereof (i) hereby
irrevocably submits to the jurisdiction of the federal and state
courts in the State
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of Utah for the purpose of any action, suit or proceeding arising
out of or based upon this Agreement or the subject matter hereof and
(ii) hereby waives to the extent not prohibited by applicable law,
and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or proceeding, any claim that
such party is not subject personally to the jurisdiction of the
above-named courts, that it or he is immune from extraterritorial
injunctive relief or other injunctive relief, that its or his
property is exempt or immune from attachment or execution, that any
such action, suit or proceeding may not be brought or maintained in
one of the above-named courts, that any such action, suit or
proceeding brought or maintained in one of the above-named courts
should be dismissed on grounds of forum non conveniens, should be
transferred to any court other than one of the above-named courts,
should be stayed by virtue of the pendency of any other action, suit
or proceeding in any court other than one of the above-named courts,
or that this Agreement or the subject matter hereof may not be
enforced in or by any of the above-named courts. Each of the parties
hereto hereby consents to service of process in any such suit,
action or proceeding in any manner permitted by the laws of the
State of Utah, agrees that service of process by registered or
certified mail, return receipt requested, at the address specified
in or pursuant to Section 9 is reasonably calculated to give actual
notice and waives and agrees not to assert by way of motion, as a
defense or otherwise, in any such action, suit or proceeding any
claim that service of process made in accordance with Section 9 does
not constitute good and sufficient service of process. The
provisions of this Section 7(b) shall not restrict the ability of
any party to enforce in any court any judgment obtained in a federal
or state court of the State of Utah.
(c) Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES,
AND COVENANTS THAT SUCH PARTY WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT, OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT
OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. Each
of the parties hereto acknowledges that such party has been informed
by each other party that the provisions of this Section 7(c)
constitute a material inducement upon which such party is relying
and will rely in entering into this Agreement and the transactions
contemplated hereby. Any of the parties hereto may file an original
counterpart or a copy of this Agreement with any court as written
evidence of the consent of each of the parties hereto to the waiver
of such party's right to trial by jury.
(d) Withholding. The Company shall have the right to withhold, from or
in respect of any payment due to Watterson hereunder, any federal,
state or local taxes of any kind required by law to be withheld with
respect thereto.
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8. Merger/Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes any prior
communication or agreement with respect thereto.
9. Notice. All notices, demands, and communications of any kind which any party
may require or desire to serve upon any other party under this Agreement shall
be in writing and shall be served upon such other party and such other party's
copied persons as specified below by personal delivery to the address set forth
for such party below or to such other address as such party shall have specified
by notice to each other party or by mailing a copy thereof by certified or
registered mail, or by Federal Express or any other reputable overnight courier
service, postage prepaid, with return receipt requested, addressed to such party
and copied persons at such addresses. In the case of service by personal
delivery, it shall be deemed complete on the first business day after the date
of actual delivery to such address. In case of service by mail or by overnight
courier, it shall be deemed complete, whether or not received, on the third day
after the date of mailing as shown by the registered or certified mail receipt
or courier service receipt. Notwithstanding the foregoing, notice to any party
or copied person of change of address shall be deemed complete only upon actual
receipt by an officer or agent of such party or copied person.
If to the Company, to it at:
HF Holdings, Inc.
1500 South 1000 West
Logan, Utah 84321
Attention: Chief Executive Officer
with a copy, if he is then employed by the Company, to:
Each member of the Board of Directors
(at such addresses to which notices are sent for meetings of the Board
of Directors)
If to Watterson, to him at:
Scott R. Watterson
560 South 1000 East
Logan, Utah 84321
with a copy to:
Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, MA 02110
Attention: Charles W. Robins
10. Severability. If in any judicial or arbitral proceedings a court or
arbitrator shall refuse to enforce any provision of this Agreement, then such
unenforceable provision shall be deemed eliminated from this Agreement for the
purpose of such proceedings to the extent necessary to
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permit the remaining provisions to be enforced. To the full extent, however,
that the provisions of any applicable law may be waived, they are hereby waived
to the end that this Agreement be deemed to be a valid and binding agreement
enforceable in accordance with its terms, and in the event that any provision
hereof shall be found to be invalid or unenforceable, such provision shall be
construed by limiting it so as to be valid and enforceable to the maximum extent
consistent with and possible under applicable law.
11. Disclaimer and Limitation of Liability.
(a) Disclaimer. Watterson makes no representations or warranties,
express or implied, in respect of the services to be provided by him
hereunder.
(b) Standard of Care. Neither Watterson nor any other Indemnitee shall
be liable to the Company or any of its affiliates for any act,
alleged act, omission or alleged omission suffered or taken by
Watterson hereunder or any other Indemnitee hereunder that does not
constitute willful misconduct.
(c) Limitation of Liability. In no event will either party hereto be
liable to the other for any indirect, special, incidental or
consequential damages, including lost profits or savings, whether or
not such damages are foreseeable, or in respect of any liabilities
relating to any third party claims (whether based in contract, tort
or otherwise) other than the Indemnified Liabilities to the extent
provided in Section 4(b), relating to the services to be provided by
Watterson hereunder.
(d) Employment Agreements. Neither (i) this Agreement, as the same may
be amended from time to time, or the performance by Watterson of any
services hereunder, nor (ii) any investment by Watterson in HF
Investment Holdings, LLC ("HF LLC"), a Delaware limited liability
company, or the performance by Watterson of any services under the
HF LLC Limited Liability Company Agreement, as the same may be
amended from time to time, shall constitute a violation of any
employment agreement between Watterson and Holdings, ICON or the
Company, or any of their affiliates, including, but not limited to,
the Employment Agreement between Watterson and the Company, dated an
even date herewith, as the same may be amended from time to time.
12. Counterparts. This Agreement may be executed in any number of counterparts
and by each of the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
THE COMPANY: HF Holdings, Inc.
By /s/ S. Fred Beck
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Name: S. Fred Beck
Title: CFO, V.P. and Treasurer
ICON HEALTH & FITNESS, INC.
By /s/ S. Fred Beck
-------------------------------------
Name: S. Fred Beck
Title: CFO, V.P. and Treasurer
WATTERSON:
/s/ Scott R. Watterson
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Scott R. Watterson
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