EXHIBIT 10.13
AGREEMENT FOR
MANAGEMENT CONSULTING SERVICES
THIS AGREEMENT FOR MANAGEMENT CONSULTING SERVICES (this "Agreement") is
made as of the 15th of January 1999 by and between DISCOVERY TOYS, INC., a
California corporation (the "Company"), XXXXXXX X. XXXXX, P. O. Box 1975, 000
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 ("Xx. Xxxxx") and MCGUGGAN
L.L.C., a New Jersey limited liability company, located at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 ("McGuggan").
Xx. Xxxxx, a manager of McGuggan, will be assigned by McGuggan to render
services hereunder to the Company. Xx. Xxxxx has expertise in various aspects of
the fields of general corporate management, corporate finance, business
investment, marketing and other matters relevant to the Company. The Company
desires to obtain the assistance of Xx. Xxxxx in those fields noted above in
which it acknowledges the expertise of Xx. Xxxxx.
McGuggan, Xx. Xxxxx and the Company have agreed upon the terms and
conditions pursuant to which McGuggan will render certain services to the
Company and both parties desire to set forth such terms and conditions in
writing. In consideration of the foregoing and the consideration hereinafter
stated and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound, the parties
hereby agree as follows:
1. APPOINTMENT. The Company hereby appoints McGuggan and Xx. Xxxxx to
render to the Company the consulting and advisory services described in Section
2 below for a period beginning on the date of this Agreement and ending December
31, 2012 (the "Term"). This Agreement may be extended by mutual agreement of the
parties.
2. SERVICES. During the Term, McGuggan and Xx. Xxxxx shall render to the
Company, upon request, management consulting services ("Management Consulting
Services"), consisting of general corporate management, corporate finance,
marketing, business investment and such other consulting services as shall be
requested by the board of directors or the executive officers of the Company
from time to time. The Company acknowledges that McGuggan's and Xx. Xxxxx'x role
is that of a consultant and advisor to, and not that of a manager, employee or
officer of, the Company and that Xx. Xxxxx has no duty or obligation to manage
the business or affairs of the Company and is not an employee or officer of the
Company.
3. FEES. In consideration of McGuggan's and Xx. Xxxxx'x agreement to
perform, and performance of, the Management Consulting Services hereunder, the
Company shall pay to McGuggan, in cash, an annual Management Consulting Services
fee for each fiscal year of the Company during the Term equal to 0.6% of Gross
Revenues (as defined below) of the Company each fiscal year of the Company
commencing with the year ended December 31, 2001.
(a) Prior to the commencement of each fiscal year, the Company shall
establish the budgeted Gross Revenues for such fiscal year except that for the
year ended
December 31, 1999, such budgeted Gross Revenues shall be established by Xxxxx
00, 0000 (xxx "Xxxxxx Xxxxxxx").
(x) The Company shall pay to McGuggan 75% and Xx. Xxxxx 25% of the
greater of $75,000 or of 0.6% of the Target Revenue per fiscal quarter, which
amount shall be payable in arrears on the tenth business day immediately
following the end of each fiscal quarter. A "business day" is any day other than
Saturday or Sunday on which banks in New York, New York are not authorized or
obligated by law, rule, regulation or executive order to close.
(c) Within sixty (60) days after the close of each fiscal year, the
Company shall determine actual Gross Revenues of the Company for such fiscal
year ("Actual Gross Revenue"). If the fee paid to McGuggan and Xx. Xxxxx
pursuant to clause 3(a) for such fiscal year is less than 0.6% of Actual Gross
Revenues for such fiscal year, the Company shall pay McGuggan and Xx. Xxxxx the
difference pro rata 75% to McGuggan and 25% to Xx. Xxxxx.
(d) For purposes hereof, "Gross Revenues" shall mean the total sales
revenues of the Company and its consolidated subsidiaries for each fiscal year
during the Term, determined in accordance with generally accepted accounting
principles consistently applied, including without limitation sales revenues
derived from businesses of subsidiaries or other assets created or acquired
after the date hereof.
(e) The fee payable to McGuggan and Xx. Xxxxx for Management
Consulting Services rendered during the fiscal years ending December 31, 1999
and December 31, 2000 shall be $225,000 to McGuggan and $75,000 to Xx. Xxxxx.
Such amount shall be due and payable in arrears on the tenth business day (as
defined above) immediately following December 31 of such year.
4. REIMBURSEMENT OF EXPENSES. The Company shall promptly reimburse
McGuggan and Xx. Xxxxx as and when requested, for all reasonable out-of-pocket
expenses, such as legal fees, copying charges and disbursements for telephone
calls and courier services, and for the expenses for any travel done on behalf
of the Company incurred by Xx. Xxxxx, McGuggan or its designees in connection
with the rendering by McGuggan and Xx. Xxxxx of the Management Consulting
Services pursuant to this Agreement; provided, however, that prior to any
retention of counsel by McGuggan and Xx. Xxxxx in connection with this
Agreement, McGuggan and Xx. Xxxxx shall request the consent of the Company to
retain counsel in such circumstances, which consent shall not be unreasonably
withheld.
5. DEFAULT. In the event that the Company shall fail to pay any of the
fees calculated as set forth in Section 3 when and as due, McGuggan and Xx.
Xxxxx shall notify the Company in writing of such failure. If the Company does
not cure such failure within five (5) business days after the date such written
notice is sent by McGuggan and Xx. Xxxxx, the Company shall be deemed to be in
default hereunder and McGuggan and Xx. Xxxxx shall be entitled to withhold all
services and to receive the full amount of the fees and expenses payable
pursuant to Sections 3 and 4 for all Management Consulting Services rendered
through such fifth business day without rendering any further services pursuant
hereto until such default shall be actually cured.
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6. PERMISSIBLE ACTIVITIES. The Company acknowledges that McGuggan and
Xx. Xxxxx are permitted to engage in any business and to perform services for
its or his own account and for others during the Term; provided, that such
business and services shall not be in competition with, or on behalf of a person
that is in competition with, the Company.
7. APPLICABLE LAW; ASSIGNMENT. This Agreement shall be construed and
enforced in accordance with the laws of the State of New Jersey without regard
to principles of conflicts of laws and shall inure to the benefit of, and be
binding upon McGuggan and Xx. Xxxxx and the Company and their respective
successors and permitted assigns. This Agreement shall not be assigned by any
party hereto without the prior written consent of the other parties hereto.
8. ARBITRATION. Any dispute, controversy or claim in connection with,
relating to, or arising out of, this Agreement or any breach or alleged breach
hereof, shall, upon the request of either party involved, be submitted to and
settled by arbitration in the City of Newark, State of New Jersey pursuant to
the rules then in effect of the American Arbitration Association (or at any
other place or under any other form of arbitration rules mutually acceptable to
the parties involved). Any award rendered pursuant to such arbitration shall be
final and conclusive upon the parties and a judgment thereon may be entered in
the highest court of the forum, state or federal, having jurisdiction thereof.
The expenses of the arbitration shall be borne equally by the parties to the
arbitration; provided, that each party shall pay for and bear the cost of its
own experts, evidence and counsel.
9. NO CONTINUING WAIVER. The waiver by either party of any breach of
this Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach.
10. LIABILITY OF MCGUGGAN AND XX. XXXXX. Neither McGuggan nor any of its
employees, agents, directors, members or officers nor Xx. Xxxxx shall be liable
for any damages or expenses arising from the provision of Management Consulting
Services hereunder unless it or any of them acts in bad faith.
11. LIABILITY UPON DEFAULT. (a) In the event of a default by McGuggan or
Xx. Xxxxx in the performance of any of its or his obligations hereunder, the
Company's remedy shall be limited to the recovery of the fees actually paid to
McGuggan and Xx. Xxxxx pursuant to Section 3.
(b) In the event of a default by the Company in the payment to
McGuggan and Xx. Xxxxx of its fees and expenses pursuant to Sections 3 and 4,
the sole and exclusive recourse and remedy of McGuggan and Xx. Xxxxx shall be
against the Company and its assets and under no circumstances shall any officer,
director, employee, representative, shareholder, agent or other affiliate of the
Company be liable in law or at equity for any obligation of the Company
hereunder, and McGuggan's and Xx. Xxxxx'x remedy shall be limited to collection
of the fees and expenses payable to McGuggan and Xx. Xxxxx pursuant to Sections
3 and 4.
12. TERMINATION. This Agreement may be terminated at any time upon
mutual consent of the parties.
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13. NOTICE. Any notice or other communication from either party to the
other which may be specified in, or otherwise deemed necessary incident to, this
Agreement shall, in the absence of hand delivery with return receipt requested,
be deemed duly given when mailed if the same shall be sent to the address of a
party set out on the first page hereof (or any new address, notice of which is
provided in accordance with this Section) by registered or certified mail,
return receipt requested, and three business days after the mailing date shall
be deemed the date from which any time period pertaining to a date of notice
shall run.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
DISCOVERY TOYS, INC.
By:
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Name:
Title:
MCGUGGAN L.L.C.
By:
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Name: Xxxxxxx X. Xxxxx
Title: Chairman
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XXXXXXX X. XXXXX
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