Exhibit
10.41


 


SECOND AMENDED AND
RESTATED

JOINT MANAGEMENT SERVICES AGREEMENT


 


This
Second Amended and Restated Joint Management Services Agreement (the “Agreement”)
is made and entered into as of [·], 2010 by and among Douglas Dynamics, Inc.
(formerly known as Douglas Dynamics Holdings, Inc.), a Delaware
corporation (the “Company”),
Douglas Dynamics, L.L.C., a Delaware limited liability company (“Douglas”), Aurora Management Partners LLC, a Delaware
limited liability company (“AMP”), and ACOF
Management, L.P., a Delaware limited partnership (“ACOF”),
and shall become effective immediately following the closing of the Company’s
initial public offering of its common stock (the “Effective
Time”).


 


WHEREAS,
the Company, Douglas, AMP and ACOF are parties to that certain Amended and
Restated Joint Management Services Agreement dated as of April 12, 2004
(the “Prior Agreement”) pursuant to which the
Company and Douglas received financial consulting services from AMP and ACOF
upon the terms and conditions set forth in the Prior Agreement, which the
Company and Douglas believe have been beneficial to them and their respective
subsidiaries; and


 


WHEREAS,
the Company and Douglas desire to continue to receive from AMP and ACOF the
Services (as defined below) and therefore wish to extend the term for which AMP
and ACOF will provide the Services upon the terms and conditions set forth in
this Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties agree as follows:


 


1.             Scope of Services.  AMP and ACOF,
through their respective employees, Affiliates and employees of Affiliates,
shall provide the Company and Douglas with consultation and advice in such
fields as financial services, accounting, general business management,
acquisitions, dispositions, banking and other matters (the “Services”).  AMP and
ACOF shall, in their respective reasonable discretion, determine the amount of
time to be expended by their respective Affiliates and employees in performing
such Services.  AMP and ACOF shall
perform their respective duties hereunder at such times and places as are
reasonable, in the reasonable discretion of AMP or ACOF, as the case may be, in
light of the tasks involved.  Neither AMP
nor ACOF shall be required to comply with any established work schedule and
neither AMP nor ACOF shall have regularly scheduled duties assigned to it by
the Company and/or Douglas.  The Company
and/or Douglas shall, in soliciting AMP’s or ACOF’s advice and requesting AMP’s
or ACOF’s performance of its duties hereunder, give AMP or ACOF, as the case
may be, reasonable advance notice of the same in consideration of AMP’s and
ACOF’s other business obligations.


 


2.             Compensation.


 


(a)           As used herein, the following terms are defined as
follows:


 


(i)            “Affiliate” of a
specified Person means a Person that controls, is controlled by, or is under
common control with, the specified Person, and in this context, 


 

















 


“control”, “controls” and “controlled” mean the direct
or indirect power to direct the management and policies or affairs of a Person
through the ownership of voting securities or by contract or otherwise and, in
the case of a limited partnership, shall include, but shall not be limited to,
all of the limited partnership’s general partners and their respective
Affiliates.


 


(ii)           “Person” means  a natural person, a company, a
corporation, a joint venture, a limited liability company, a partnership, a
trust, an unincorporated association or organization or other legal entity, or
a government or an agency or political subdivision thereof.


 


(iii)          “Pro-Rata Portion” means 63.6% with respect to AMP and 36.4%
with respect to ACOF.


 


(b)           In consideration of the Services to be rendered
hereunder, the Company and Douglas, jointly and severally, hereby agree to pay
AMP and ACOF a lump sum one-time fee of $5,800,000.00, which payment shall be
made promptly following the Effective Time by wire transfer in same-day funds
to the bank accounts designated by AMP and ACOF and shall not be refundable
under any circumstances.  AMP and ACOF
will share in such fee based on their respective Pro-Rata Portion.


 


3.             Reimbursements.  Subject to
obtaining the approval of the Boards of Directors of the Company and Douglas
(or any committees thereof) that may be required (if any) from time to time
under applicable law or stock exchange policy, in addition to the fees payable
pursuant to this Agreement, the Company and/or Douglas will pay, or cause to be
paid, directly, or reimburse AMP, ACOF and each of their respective Affiliates
for, their respective Out-of-Pocket Expenses (as defined below).  For the purposes of this Agreement, the term “Out-of-Pocket Expenses” means the reasonable out-of-pocket
costs and expenses incurred by AMP, ACOF and their respective Affiliates (i) in
connection with the Services provided under the Prior Agreement and any
services provided under this Agreement (including prior to the Effective Time or
the date of the Prior Agreement) and (ii) in order to make Securities and
Exchange Commission and other legally required filings relating to the
ownership of capital stock of the Company or its successor by AMP and ACOF or
their respective Affiliates, or otherwise incurred by AMP and ACOF or their
respective Affiliates from time to time in the future in connection with the
ownership or subsequent sale or transfer by AMP and ACOF or their respective
Affiliates of capital stock of the Company or its successor, including, without
limitation, (a) fees and disbursements of any independent professionals
and organizations, including independent accountants, outside legal counsel or
consultants, retained by AMP and ACOF or any of their respective Affiliates, (b) costs
of any outside services or independent contractors such as couriers, business
publications, on-line financial services or similar services, retained or used
by AMP and ACOF or any of their respective Affiliates and (c) transportation,
per diem costs, word processing expenses or any similar expense not associated
with AMP’s, ACOF’s or their respective Affiliates’ ordinary operations.  All payments or reimbursements for
Out-of-Pocket Expenses will be made by wire transfer in same-day funds promptly
upon or as soon as practicable following request for payment or reimbursement in
accordance with this Agreement, to the bank account indicated to the Company
and/or Douglas by the relevant payee.


 


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4.             Term.  Unless
earlier terminated as provided in Section 5 below, the term of this
Agreement and the obligations of AMP and ACOF hereunder shall commence on the Effective
Time and shall terminate automatically on the earlier to occur of (i) April [    ],
2015, (ii) the date on which AMP and ACOF and their respective Affiliates
(in the aggregate) collectively own less than 5% of the common stock of the
Company then outstanding and (iii) such earlier date as the parties hereto
mutually agree in writing.   The
expiration of the term of this Agreement shall not adversely affect AMP’s or
ACOF’s right, as the case may be, to receive any compensation accrued prior to
the date of such termination or any rights to receive reimbursement of any
out-of-pocket expenses incurred by AMP or ACOF, as the case may be, prior to
the date of such termination.  The
provisions of Sections 6, 7, 8, 9, 10, 11, 12 and 13 shall survive the
expiration of the term of this Agreement or any termination of this Agreement.


 


5.             Termination for Cause.


 


(a)           The Company, by written notice to AMP
authorized by a majority of the directors (other than those affiliated with
AMP), may terminate this Agreement with respect to AMP for justifiable cause,
which shall mean any of the following events: 
(a) misappropriation by AMP of funds or property of the Company
and/or Douglas; (b) gross neglect or willful misconduct by AMP in the
fulfillment of its obligations hereunder; or (c) the conviction of AMP or
any person who is then a member of AMP of a felony involving moral turpitude
that has become final and not subject to further appeal.  The termination of this Agreement with
respect to AMP shall not adversely affect any of ACOF’s rights under this
Agreement.


 


(b)           The Company, by written notice to ACOF
authorized by a majority of the directors (other than those affiliated with
ACOF), may terminate this Agreement with respect to ACOF for justifiable cause,
which shall mean any of the following events: 
(a) misappropriation by ACOF of funds or property of the Company
and/or Douglas; (b) gross neglect or willful misconduct by ACOF in the
fulfillment of its obligations hereunder; or (c) the conviction of ACOF or
any person who is then a member of ACOF of a felony involving moral turpitude
that has become final and not subject to further appeal.  The termination of this Agreement with
respect to ACOF shall not adversely affect any of AMP’s rights under this
Agreement.


 


6.             Confidential Information. 
During the term of this Agreement, AMP and ACOF will have access to and
become acquainted with confidential information of the Company and/or Douglas,
including among other things customer relationships, processes, and
compilations of information, records and specifications, which are owned by the
Company and/or Douglas.  AMP and ACOF
shall not use or disclose any of the Company’s and/or Douglas’ confidential
information in any way that is detrimental to the interests of the Company
and/or Douglas, directly or indirectly, either during or within three (3) years
after the term of this Agreement, except as required in the course of this
Agreement.  AMP shall be responsible for
any breaches of this Section 6 by AMP’s officers, directors, employees and
advisors.  ACOF shall be responsible for
any breaches of this Section 6 by ACOF’s officers, directors, employees
and advisors.


 


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7.             Notices.  All notices,
demands and requests required under this Agreement shall be in writing and
shall be deemed to have been given if served personally or sent by registered
or certified mail, postage prepaid, or by telegraph or telex addressed to the
addressee set forth or such other addresses as either party may designate by
notice to the other:


 


	
  If
  to the Company:

  	
  Douglas
  Dynamics, Inc.

  7777
  North 73rd Street

  P.O. Box
  2345038

  Milwaukee,
  Wisconsin

  Telecopier:
  (414) 354-8448

  Attn:
  Chief Executive Officer

  
	
   

  	
   

  
	
  If
  to Douglas:

  	
  Douglas
  Dynamics, L.L.C.

  7777
  North 73rd Street

  P.O. Box
  2345038

  Milwaukee,
  Wisconsin

  Telecopier:
  (414) 354-8448

  Attn:
  Chief Executive Officer

  
	
   

  	
   

  
	
  If
  to AMP:

  	
  Aurora
  Management Partners LLC

  10877
  Wilshire Boulevard

  Suite 2100

  Los
  Angeles, CA 90024

  Telecopier
  No: (310) 227-5591

  Attn:
  Timothy J. Hart

  
	
   

  	
   

  
	
  If
  to ACOF:

  	
  ACOF
  Management, L.P.

  2000
  Avenue of the Stars

  12th
  Floor

  Los
  Angeles, California 90067

  Telecopier:
  (310) 201-4157

  Attn:
  Jeffrey Serota

  



 


Notices delivered in person shall be effective when so
delivered.  Notices delivered by courier
shall be effective three (3) business days after delivery by the sender to
an air courier of national reputation who guarantees delivery within such three
(3) business day period.  Telecopied
notices shall be effective when receipt is acknowledged telephonically by the
addressee or its agent or employee. 
Notices sent by mail shall be effective five (5) business days
after the sender’s deposit of such notice in the United States mails, first
class postage prepaid.


 


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8.             Assigns and Successors.  The rights
and obligations of the Company and Douglas under this Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the
Company and Douglas, respectively.  The
rights and obligations of AMP under this Agreement may be assigned by AMP in
its sole discretion to an Affiliate of AMP. 
The rights and obligations of ACOF under this Agreement may be assigned
by ACOF in its sole discretion to an Affiliate of ACOF.


 


9.             Attorneys’ Fees.  If any legal
proceeding is necessary to enforce or interpret the terms of this Agreement, or
to recover damages for breach thereof, the prevailing party shall be entitled
to reasonable attorneys’ fees, as well as costs and disbursements, in addition
to any other relief to which he or she is entitled.


 


10.          Indemnity.  To the same
extent as the Company or Douglas provides indemnification (whether through
contract or the Company’s Certificate of Incorporation or Bylaws or Douglas’
Operating Agreement) to its directors and officers, the Company and Douglas,
jointly and severally, shall indemnify and hold each of AMP, ACOF and their
respective partners, members, officers, employees, agents and Affiliates and
the stockholders, partners, members, Affiliates, directors, officers and
employees of any of the foregoing (and representatives and agents of any of the
foregoing designated by AMP or ACOF, as the case may be, from time to time
whether before or after the occurrence of the event giving rise to the claim
for indemnity) (each such person entitled to indemnity hereunder being referred
to as an “Indemnitee”) harmless from any and all
losses, costs, liabilities and damages (including reasonable attorneys’ fees)
arising out of or connected with, or claimed to arise out of or to be connected
with, any act performed or omitted to be performed under this Agreement or
otherwise relating to the business or affairs of the Company or its respective
Affiliates, provided such act or omission was taken in good faith by such
Indemnitee and did not constitute gross negligence or willful misconduct on the
part of the relevant Indemnitee, and provided further only in the event of
criminal proceedings, that the Indemnitee had no reasonable cause to believe
the conduct of the Indemnitee was unlawful. 
An adverse judgment or plea of nolo contendere shall
not, of itself, create a presumption that the Indemnitee did not act in good
faith or that the Indemnitee had reasonable cause to believe the conduct of the
Indemnitee was unlawful.  Expenses
incurred in defending any civil or criminal action arising out of or relating
to any event or circumstance to which this indemnity shall apply shall be paid
by the Company and/or Douglas, as the case may be, upon receipt of an
undertaking by or on behalf of the Indemnitee to repay such amount if it be
later shown that such Indemnitee was not entitled to indemnification.  No Indemnitee shall be liable to the Company,
Douglas or any of their respective Affiliates, stockholders, partners, members,
directors, officers or employees or any Affiliates, stockholders, partners,
members, directors, officers, employees, representatives or agents of any of
the foregoing or any other person claiming through any of the foregoing for any
act or omission by AMP or ACOF, as the case may be, in the performance of their
respective duties hereunder or otherwise in relation hereto which was taken or
omitted to be taken in good faith by such Indemnitee and which did not
constitute gross negligence or willful misconduct on the part of such
Indemnitee.


 


11.          Outside Activities of AMP and ACOF. 
Each of AMP and ACOF shall be entitled to and may have business
interests and engage in business activities in addition to the 


 


5

















 


activities contemplated by this Agreement.  Neither of AMP, ACOF, any partner, member,
officer, employee or Affiliate of AMP or ACOF nor any stockholder, partner,
members, director, officer or employee of any of the foregoing shall have any
obligation or duty to offer any investment or business opportunity (other than
an opportunity directly involving the snow and ice control equipment industry)
of any kind to the Company and/or Douglas or any of their respective stockholders,
directors, officers or employees (under any doctrine of “corporate opportunity”
or otherwise), it being expressly understood that AMP, ACOF, and their
respective partners, members, officers, employees and Affiliates and the
stockholders, partners, members, directors, officers and employees of any of
the foregoing may make investments in, acquire, or provide management, advisory
or consulting services to, entities engaged in businesses similar to the
business of the Company and/or Douglas without any duty, obligation or
liability to the Company and/or Douglas or their respective stockholders,
partners, members, directors, officers or employees.


 


12.          Amendment; Waiver.  This
Agreement may be amended, and any right or claim hereunder waived, only by a written
instrument signed by AMP, ACOF, the Company and Douglas.  Except as provided in Sections 10 and 11
hereof, nothing in this Agreement, express or implied, is intended to confer
upon any third person any rights or remedies under or by reason of this Agreement.  No amendment or waiver of this Agreement
requires the consent of any individual, partnership, corporation or other
entity not a party to this Agreement, except that any amendment of Section 10
shall only operate prospectively as to any Indemnitee provided therein unless
such Indemnitee shall have agreed in writing to such amendment.


 


13.          Construction, Etc.  This Agreement
shall be construed under and governed by the internal laws of the State of
Delaware.  Section headings are for
convenience only and shall not be considered a part of the terms and provisions
of this Agreement.  This Agreement may be
executed in any number of counterparts, each of which when executed and
delivered shall be deemed an original and all of which when taken together shall
constitute one and the same instrument.


 


[signature page follows]


 


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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.


 


 


	
   

  	
  DOUGLAS
  DYNAMICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  James L. Janik

  
	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DOUGLAS
  DYNAMICS, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  James L. Janik

  
	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AURORA
  MANAGEMENT PARTNERS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  Timothy J. Hart

  
	
   

  	
  Title:
  Vice President, Secretary and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACOF
  MANAGEMENT, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
  ACOF Operating Manager, L.P., its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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