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EXHIBIT 10.1
MANAGEMENT AGREEMENT
BETWEEN
THE REGISTRANT AND GIUFFRE BROS. CRANES, INC.
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MANAGEMENT AGREEMENT
AGREEMENT made as of the 1st day of July, 1998, by and between Heartland
Wisconsin Corp., a Wisconsin corporation ("Company"), and Giuffre Bros. Cranes,
Inc., a Delaware corporation ("Giuffre Cranes").
WITNESSETH:
WHEREAS, the Company is engaged in the business of providing financing,
principally in the form of leases ("Leases"), to facilitate the acquisition of
products ("Equipment") marketed to customers of Giuffre Cranes and its
affiliates, as well as to unaffiliated purchasers of Equipment ("Business");
WHEREAS, Giuffre Cranes is experienced in the financing of Equipment; and
WHEREAS, the Company is desirous of availing itself of the benefits and
advantages of the experience of Giuffre Cranes without, however, affecting the
rights and duties of its Board of Directors.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties hereto, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is mutually agreed by the
parties hereto as follows:
1. Employment. The Company does hereby engage Giuffre Cranes, and Giuffre
Cranes does hereby agree to be employed by the Company, upon the terms and
conditions hereinafter set forth.
2. Obligations Giuffre Cranes. Giuffre Cranes shall, for the best interests
of the Company in all respects, diligently and to the best of its ability:
(a) Within the limits of the budgets which will be allocated for the
purpose by the Company, exercise general supervision over the Business to
the end that it shall be operated and maintained in a proper, efficient and
businesslike manner;
(b) Supervise and coordinate the management and operation of the
Business;
(c) Within the limits of the budgets which will be allocated for the
purpose by the Company, and in accordance with the policies as established
by the Board of Directors of the Company, supervise and manage the
operation of the Business, and keep true and accurate books and records
showing all income and expense in connection with the operation of the
Business, which books and records shall at all times be open and accessible
to the Board of Directors of the Company, or to any of the Board's duly
authorized representatives;
(d) Generally perform such other duties as it may deem necessary or
desirable within the limits established by the Board of Directors of the
Company, in order to effectuate the efficient and economical operation of
the Business;
(e) Provide to the Company monthly income statements (accrual basis)
and at such times as the Company shall reasonably direct, provide
statements prepared by certified public accountants selected by the Company
(the cost of which shall be considered an operating expense of the
Business) showing in reasonable detail the receipts, expenditures and
general operations of the Business
It is agreed that the services to be provided by Giuffre Cranes under this
Agreement shall not be required unless requested by the Company and that, in any
event, such services shall include only those services which Giuffre Cranes is
normally equipped and qualified to perform in the usual course of its business;
and that Giuffre Cranes shall not be obligated to continue to provide any such
service which it considers to be impractical or uneconomic from the viewpoint of
its business as a whole. In the event that the Company may request Giuffre
Cranes to perform any special or unusual services in addition to those referred
to herein, arrangements therefor shall be made by separate agreement of the
parties.
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3. Rights of Giuffre Cranes. It is mutually agreed that Giuffre Cranes
shall have sole discretion as to the assigning of such of its employees as it
may designate to perform any services which Giuffre Cranes may undertake to
perform for the Company hereunder. It is further agreed that Giuffre Cranes may
supply similar management services to other companies, whether in the financing
business or not, and that Giuffre Cranes may do business under this Agreement on
behalf of the Company with any corporation, company, partnership or association
in which Giuffre Cranes, its directors, officers, other employees or
stockholders may be interested, financially or otherwise.
4. Compensation.
(a) Amount of Compensation. For the services to be rendered by Giuffre
Cranes hereunder, the Company shall pay to Giuffre Cranes $12,000 per year
("Management Fee"), such amount to be payable in four equal installments on
the first day of March, June, September and December of each year. The
Management Fee will reimburse Giuffre Cranes for customary and routine
general overhead expenses incurred in performing its obligations to the
Company, including, without limitation (i) rent or depreciation, utilities,
property taxes, and the cost of capital equipment unless acquired primarily
for the benefit of the Company; (ii) expenses of a general and
administrative nature that are customarily incurred by Giuffre Cranes for
its own account and are not attributable to the Company; and (iii) salaries
and fringe benefits incurred by or allocated to any Controlling Person of
Giuffre Cranes. For purposes of this Agreement, "Controlling Person" is any
person, whatever his or her title, who performs functions for Giuffre
Cranes similar to those of the chairman or member of the Board of
Directors; executive management, such as the president, executive vice
president or senior vice president, corporate secretary, or treasurer; or
who holds a 5% or more equity interest in Giuffre Cranes or a person having
the power to direct or cause the direction of Giuffre Cranes, whether
through the ownership of voting securities, by contract, or otherwise.
(b) Adjustment in Compensation. It is understood and agreed that the
Management Fee specified above shall be subject to adjustment by mutual
consent of the parties at any time and that this Agreement may be amended
in writing accordingly.
(c) Compensation for Nonemployees of Giuffre Cranes. It is further
understood and agreed that the Management Fee payable to Giuffre Cranes
hereunder shall represent compensation for services performed only by
regular employees of Giuffre Cranes. Fees charged by independent advisors,
consultants and any other persons not regularly employed by Giuffre Cranes
who may be retained by the Company or by Giuffre Cranes on behalf of the
Company shall be paid by the Company.
5. Expenses. The Company shall reimburse Giuffre Cranes for (i) the costs
of operations of the Company and the Business (e.g., documentation, securities
filings, other direct costs of selecting, negotiating, monitoring, and
liquidating Equipment and/or Leases (including consultants, attorneys,
accountants, appraisers, due diligence expenses, travel, and investment banking
fees and commissions)); (ii) Company accounting (e.g., maintenance of Company
books and records, bookkeeping fees, preparation of regulatory and tax reports,
and costs of computer equipment or services used by the Company); (iii) investor
communications (e.g., design, production, and mailing of all reports and
communications to investors in the Company, including those required by
regulatory agencies); (iv) investor documentation; (v) legal and tax services;
and (vi) any other related operational or administrative expenses necessary for
the operation of the Company and the Business. Giuffre Cranes will not be
reimbursed by the Company for customary and routine general overhead expenses
incurred in performing its obligations to the Company, including, without
limitation those expenses described in Paragraph 3(a) hereof. The reimbursement
of expenses pursuant to this Paragraph shall made promptly, upon demand, subject
to the presentation by Giuffre Cranes and approval by the Company of valid
receipts and other appropriate documentation for such expenses.
7. Term; Termination.
(a) The employment of Giuffre Cranes hereunder shall commence on the
date of this Agreement, and shall continue through February 28, 2000. This
Agreement shall be automatically extended for additional two-year periods
thereafter unless notice of termination be given in writing, by either
party, at least 90 days prior to the termination date of the original or
any renewal period, given as provided in this Agreement.
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(b) This Agreement may be terminated by either party hereto, with or
without "cause" (for any reason or no reason at all), at any time, by
giving 90 days prior written notice of termination to the other (which
notice shall be given as provided in this Agreement); such termination
shall be effective on the 90th day following delivery of such notice. If
the employment of Giuffre Cranes under this Agreement is so terminated, the
Company shall make one or more cash payments to Giuffre Cranes in an
aggregate amount equal to (i) a pro rata portion of the compensation earned
for the fiscal year in which termination occurs prorated to the date of
termination, plus (ii) any unreimbursed expenses accruing to the date of
termination.
8. Confidential Information. Giuffre Cranes agrees that it will not at any
time during the term of this Agreement, or thereafter, divulge to any person,
firm, association, or corporation any information received by it during the
course of its employment hereunder with regard to the financial or other
confidential affairs of Company and all such information shall not be revealed
to anyone, in any manner, without the express written consent of the Board of
Directors of Company, except disclosures made in the course of the ordinary
conduct of the Business.
9. Employee Benefits. All compensations and other remunerations, expense
allowance, vacations, sick leave and absence, insurance matters and any other
employment matters with reference to personnel provided Company by Giuffre
Cranes shall be contracted for by separate, distinct and independent agreements
by Company, and all such compensation, remunerations, expense allowances,
vacations, sick leave and absence, insurance matters and any other employment
matters shall be exclusive of the terms of this Agreement. All personnel
provided to the Company by Giuffre Cranes pursuant hereto are employees of
Giuffre Cranes, and nothing herein contained shall be interpreted to the
contrary.
10. Miscellaneous.
(a) Transfer and Assignment. This Agreement shall not be assigned or
transferred by Giuffre Cranes without the prior written consent of the
Company. This Agreement shall be binding upon and inure to the benefit of
all of the parties hereto and their respective successors and assigns.
(b) Severability; Governing Law. Nothing contained herein shall be
construed to require the commission of any act contrary to law. Should
there be any conflict between any provisions hereof and any present or
future statute, law, ordinance, regulation, or other pronouncement having
the force of law, the latter shall prevail, but the provision of this
Agreement affected thereby shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law, and the
remaining provisions of this Agreement shall remain in full force and
effect. This Agreement is made under and shall be construed pursuant to the
internal laws of the State of Wisconsin.
(c) Counterparts. This Agreement may be executed in several
counterparts and all documents so executed shall constitute one agreement,
binding on all of the parties hereto, notwithstanding that all of the
parties did not sign the original or the same counterparts.
(d) Modification. This Agreement may be modified, amended, superseded,
or cancelled, and any of the terms, covenants, representations, warranties
or conditions hereof may be waived, only by a written instrument executed
by the party or parties to be bound by any such modification, amendment,
supersession, cancellation, or waiver.
(e) Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof
and supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise,
inducement, statement or intention has been made by any party hereto that
is not embodied herein, and no party shall be bound by or liable for any
alleged representation, promise, inducement, or statement not so set forth
herein.
(f) Waiver. The waiver by either of the parties, express or implied, of
any right under this Agreement or any failure to perform under this
Agreement by the other party, shall not constitute or be deemed as a waiver
of any other right under this Agreement or of any other failure to perform
under this Agreement by the other party, whether of a similar or dissimilar
nature.
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(g) Notices. Any notice under this Agreement must be in writing, may be
telecopied, sent by express courier, or hand-delivered, or may be served by
depositing the same in the United States mail, addressed to the party to be
notified, postage-prepaid and registered or certified with a return receipt
requested. The addresses of the parties for the receipt of notice shall be
as follows:
If to the Company: Heartland Wisconsin Corp.
6635 South 13th Street
Milwaukee, Wisconsin 53221
Attention: Scott A. Blair
If to Giuffre Cranes: Giuffre Bros. Cranes, Inc.
6635 South 13th Street
Milwaukee, Wisconsin 53221
Attention: Frank P. Giuffre
Each party may change its address for notice by giving notice thereof in
the manner provided above.
(h) Arbitration. If at any time any controversy shall arise under this
Agreement which might be the subject of any action at law or of a suit in
equity, the same shall be submitted to the decision of three arbitrators,
one to be named by the Company, one by Giuffre Cranes and the third by the
two so named, and the award of the arbitrators or of a majority of them
being made and reported to any court having jurisdiction, 90 days from the
date of submission, the judgment thereon shall be final. In this and in all
other respects such arbitration shall be had in accordance with the
provisions of the laws of the State of Wisconsin. All matters of
controversy or dispute shall within 30 days after the same arise be
submitted to arbitration in the manner herein provided.
IN WITNESS WHEREOF, the Company and Giuffre Cranes have caused this
Agreement to be executed in their corporate names by their corporate officers,
having been thereunto duly authorized by their respective Boards of Directors,
as of the day and year first above written.
HEARTLAND WISCONSIN CORP.
By:________________________________________
Scott A. Blair, Chief Executive Officer
and President
GIUFFRE BROS. CRANES, INC.
By:________________________________________
Frank P. Giuffre, President