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EXHIBIT 10.12
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, dated as of August 31, 1996, among MCM
Group, Inc., a Delaware corporation (the "Company"), XxXxxxxx, Xxxxxxxx &
Xxxxxx, Inc., a New York corporation ("MCM and, together with the Company, the
"Company Group"), and Xxxxxxx, Dubilier & Rice, Inc., a Delaware corporation
("CD&R").
W I T N E S S E T H:
WHEREAS, CD&R manages a private investment fund known as The Xxxxxxx &
Dubilier Private Equity Fund IV Limited Partnership, a Connecticut limited
partnership ("C&D Fund IV"), and the general partner of C&D Fund IV is Xxxxxxx &
Dubilier Associates IV Limited Partnership, a Connecticut limited partnership
(together with any general partner of any other investment fund managed by CD&R,
"C&D Associates");
WHEREAS, as of the date hereof, VK/AC Holding, Inc., a Delaware
corporation ("VK/AC"), has made a distribution of the outstanding Class A Common
Stock, par value $.01 per share, of the Company, to its common stockholders in
proportion to their respective holdings of VK/AC common stock (such
distribution, the "MGI Spin-Off");
WHEREAS, C&D Fund IV holds a majority of the outstanding shares of
common stock of VK/AC and, after giving effect to the MGI Spin-Off, holds a
majority of the outstanding shares of common stock of the Company;
WHEREAS, concurrently with the execution and delivery of this
Agreement, each member of the Company Group is entering into an Indemnification
Agreement, dated as of the date hereof (the "Indemnification Agreement", to
which reference is made for the definitions of capitalized terms used herein
without definition), among the Company, MCM, CD&R and C&D Fund IV;
WHEREAS, CD&R has performed financial, management advisory and other
services for the Company and MCM in connection with the MGI Spin-Off, the
Management Offering and certain associated transactions, including but not
limited to (i) the formation and capitalization of the Company, (ii) the
preparation and negotiation of an interim services agreement, a tax sharing
agreement, a registration and participation agreement and other agreements
relating to the MGI Spin-Off and the grant of the Special MGI Options and MGI
Management Options, (iii) the preparation and
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negotiation of subscription and other agreements relating to the Special MGI
Options and the MGI Management Options, (iv) the preparation and circulation of
the Information Statement and other materials to the stockholders of VK/AC in
connection with the MGI Spin-Off, (v) the preparation and circulation of the
Management Offering Memorandum to the MGI Management Investors in connection
with the Management Offering, and (vi) the structuring, implementation and
consummation of the MGI Spin-Off, the Management Offering and certain associated
transactions (such services collectively, the "Transaction Services");
WHEREAS, each member of the Company Group desires to receive financial
and managerial advisory services from CD&R, and CD&R desires to provide such
services to each member of the Company Group and their subsidiaries.
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
the parties hereto hereby agree as follows:
1. Engagement. Each member of the Company Group, jointly and severally,
hereby engages CD&R as a consultant, and CD&R hereby agrees to provide financial
and managerial advisory services to the Company Group and their Subsidiaries,
all on the terms and subject to the conditions set forth below.
2. Services, etc. (a) CD&R hereby agrees during the term of this
Agreement to assist, advise and consult with the respective Boards of Directors
and management of each member of the Company Group and their subsidiaries in
such manner and on such business, management and financial matters, and provide
such other financial and managerial advisory services, as may be reasonably
requested from time to time by the Board of Directors of any member of the
Company Group, including but not limited to assistance in:
(i) establishing and maintaining banking, legal and other business
relationships for each such member and its subsidiaries;
(ii) developing and implementing corporate and business strategy
and planning for each such member and its subsidiaries,
including plans and programs for improving operating,
marketing and financial performance, budgeting of future
corporate investments, acquisition and divestiture
strategies, and reorganizational programs;
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(iii) arranging future debt and equity financings and refinancings;
and
(iv) providing professional employees to serve as directors or
officers of each member of the Company Group.
(b) Each member of the Company Group will furnish CD&R with such
information as CD&R believes appropriate to its engagement hereunder (all such
information so furnished being referred to herein as the "Information"). Each
member of the Company Group recognizes and confirms that (i) CD&R will use and
rely primarily on the Information and on information available from generally
recognized public sources in performing the services to be performed hereunder
and (ii) CD&R does not assume responsibility for the accuracy or completeness of
the Information and such other information.
3. Compensation; Payment of Expenses. (a) MCM agrees to pay to CD&R, as
compensation for services rendered and to be rendered by CD&R hereunder, on
behalf of all members of the Company Group, a fee of $150,000 per year (the
"Fee"), payable in installments of $12,500 in arrears on the last business day
of each month, commencing on September 1, 1996. The Fee may, in the sole
discretion of a majority of the members of MCM's Board of Directors who are not
affiliated with CD&R, be increased but may not be decreased without the prior
written consent of CD&R. If any employee of CD&R shall be elected to serve on
the Board of Directors or as an officer of any member of the Company Group or
any Subsidiary thereof (a "Designated Director"), in consideration of the Fee
being paid to CD&R, CD&R shall cause such Designated Director to waive any and
all fees to which such Designated Director would otherwise be entitled as a
director or officer for any period for which the Fee or any installment thereof
is paid.
(b) MCM shall reimburse CD&R for such reasonable travel and other
out-of-pocket expenses ("Expenses") as may be incurred by CD&R and its
employees, agents and advisors in the course or on account of rendering of any
services hereunder, including but not limited to any fees and expenses of any
legal, accounting or other professional advisors to CD&R engaged in connection
with the services being provided hereunder and any expenses incurred by any
Designated Director in connection with the performance of his duties. CD&R may
submit monthly expense statements, which shall be payable within thirty days.
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4. Term, etc. (a) This Agreement shall be in effect until, and shall
terminate upon, the earlier to occur of (x) the tenth anniversary of the date
hereof and (y) the date on which C&D Fund IV no longer owns any shares of the
capital stock of the Company, and may be earlier terminated by either party
hereto upon 30 days' prior written notice to the other party hereto. The
provisions of this Agreement shall survive any termination of this Agreement,
except for the provisions of Section 1, Section 2(a), the first sentence of
Section 2(b) and (solely as to any portion of the Fee or any Expense not paid or
reimbursed prior to such termination and required to be paid or reimbursed
thereafter pursuant to Section 4(c) hereof) Section 3 hereof.
(b) Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of any member of the Company
Group, the successor corporation formed by such consolidation or into which such
member of the Company Group is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, such member of the
Company Group under this Agreement with the same effect as if such successor
corporation had been a party thereto. No such consolidation, merger or
conveyance, transfer or lease of all or substantially all of the assets of any
member of the Company Group shall have the effect of terminating this Agreement
or of releasing such member of the Company Group or any such successor
corporation from its obligations hereunder.
(c) Upon any termination of this Agreement, any accrued and unpaid
installment of the Fee or portion thereof (pro rated, with respect to the month
in which such termination occurs, for the portion of such month that precedes
such termination), and any unpaid and unreimbursed Expenses that shall have been
incurred prior to such termination (whether or not such Expenses shall then have
become payable), shall be immediately paid or reimbursed, as the case may be, by
the Company. In the event of the liquidation of MCM, all amounts due CD&R
hereunder shall be paid to CD&R before any liquidating distributions or similar
payments are made to stockholders of MCM.
5. Indemnification. (a) Each member of the Company Group confirms and
reaffirms its obligations pursuant to the Indemnification Agreement. Without
limiting the generality of the foregoing, each member of the Company Group
confirms and agrees that (a) it shall indemnify, defend and hold harmless CD&R,
C&D Fund IV, C&D Associates, their respective successors and assigns and each of
the respective directors, officers, partners, employees, agents,
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advisors, representatives and controlling persons (within the meaning of the
Securities Act of 1933, as amended) of CD&R, C&D Fund IV and C&D Associates and
their respective successors and assigns (collectively, "Indemnitees") from and
against any and all claims, obligations, liabilities, causes of action, actions,
suits, proceedings, investigations, judgments, decrees, losses, damages, fees,
costs and expenses (including without limitation interest, penalties and fees
and disbursements of attorneys, accountants, investment bankers and other
professional advisors) (collectively, "Obligations"), whether incurred with
respect to third parties or otherwise, in any way resulting from, arising out of
or in connection with, based upon or relating to, the performance of the
Transaction Services or the services contemplated hereby, except to the extent
that any such Obligation is found in a final judgment by a court having
jurisdiction to have resulted from the gross negligence or intentional
misconduct of CD&R, (b) no Indemnitee shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to a member of the Company Group
or any Subsidiary thereof or their respective security holders or creditors with
respect to any Obligation in any way resulting from, arising out of or in
connection with, based upon or relating to, the performance of the Transaction
Services or the services contemplated hereby, except to the extent that any such
Obligation is found in a final judgment by a court having jurisdiction to have
resulted from the gross negligence or intentional misconduct of CD&R, and (c)
the rights of each Indemnitee to be indemnified under any agreement, document,
certificate or instrument or applicable law are independent of and in addition
to any rights of such Indemnitee under any other agreement, document,
certificate or instrument or applicable law.
(b) Each member of the Company Group agrees to advance costs and
expenses, including attorneys' fees, incurred by CD&R (acting on its own behalf
or, if requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or any Indemnitee in defending any claim relating to any Obligation
in advance of the final disposition of such claim within 30 days of receipt from
CD&R of (i) a notice setting forth the amount of such costs and expenses (a
"Payment Notice") and (ii) an undertaking by or on behalf of CD&R or such
Indemnitee to repay amounts so advanced if it shall ultimately be determined
that CD&R or such Indemnitee is not entitled to be indemnified by the Company as
authorized by this Agreement. CD&R may submit Payment Notices to MCM monthly,
and MCM shall forward any such notice to each other member of the Company Group.
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6. Independent Contractor Status. The parties agree that CD&R shall
perform services hereunder as an independent contractor, retaining control over
and responsibility for its own operations and personnel. Neither CD&R nor any of
its employees or agents shall, solely by virtue of this Agreement or the
arrangements hereunder, be considered employees or agents of any member of the
Company Group or any Subsidiary thereof nor shall any of them have authority to
contract in the name of a member of or bind any member of the Company Group or
any Subsidiary thereof, except (a) to the extent that any professional employee
of CD&R may be serving as a director or an officer of a member of the Company
Group or any Subsidiary thereof pursuant to Section 2(a)(iv) hereof or (b) as
expressly agreed to in writing by a member of the Company Group. Any duties of
CD&R arising out of its engagement to perform services hereunder shall be owed
solely to the Company Group.
7. Notices. Any notice or other communication required or permitted to
be given or made under this Agreement by one party to the other parties shall be
in writing and shall be deemed to have been duly given and effective (i) on the
date of delivery if delivered personally or (ii) when sent if sent by prepaid
telegram, or mailed first-class, postage prepaid, registered or certified mail,
or facsimile transmission as follows (or to such other address as shall be given
in writing by one party to the other parties in accordance herewith):
If to the Company, to:
MCM Group, Inc.
c/x XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxxx
If to MCM, to:
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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Attention: Xxxxx X. Xxxxx
If to CD&R, to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
8. Entire Agreement. This Agreement, together with the Indemnification
Agreement, (a) contains the complete and entire understanding and agreement of
CD&R and each member of the Company Group with respect to the subject matter
hereof and (b) supersedes all prior and contemporaneous understandings,
conditions and agreements, oral or written, express or implied, in respect of
the subject matter hereof, including but not limited to in respect of the
engagement of CD&R in connection with the subject matter hereof. There are no
representations or warranties of CD&R in connection with this Agreement or the
services to be provided hereunder, except as expressly made and contained in
this Agreement.
9. Headings. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
11. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns and to each Indemnitee, provided that none of CD&R or any
member of the Company Group may assign any of its
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rights or obligations under this Agreement without the express written consent
of the other party hereto. This Agreement is not intended to confer any right or
remedy hereunder upon any person other than the parties to this Agreement and
their respective successors and permitted assigns and each Indemnitee.
12. Governing Law. This Agreement shall be deemed to be a contract made
under, and is to be governed and construed in accordance with, the laws of the
State of New York, without regard to the conflict of laws principles or rules
thereof. Each member of the Company Group and CD&R hereby irrevocably submit to
the jurisdiction of the courts of the State of New York and the Federal courts
of the United States of America, in each case located in the State, City and
County of New York, solely in respect of the interpretation and enforcement of
the provisions of this Agreement, and hereby waive, and agree not to assert, as
a defense in any action, suit or proceeding for the interpretation or
enforcement hereof, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in such courts or that the
venue thereof may not be appropriate or that this Agreement may not enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a New
York State or Federal court. Each member of the Company Group and CD&R hereby
consent to and grant any such court jurisdiction over the person of such parties
and over the subject matter of any such dispute and agree that mailing of
process or other papers in connection with any such action or proceeding in the
manner provided in Section 7, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
13. Waiver of Jury Trial. Each party hereto acknowledges and agrees
that any controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore it hereby irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (a) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (b) it understands
and has considered the implications of this waiver, (c) it makes this waiver
voluntarily, and (d) it has been induced to enter into this Agreement by, among
other
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things, the mutual waivers and certifications contained in this Section 13.
14. Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party or Indemnitee against
whom enforcement of the amendment, modification, supplement, discharge or waiver
is sought (and in the case of a member of the Company Group, approved by
resolution of the Board of Directors or the sole stockholder of such member of
the Company Group). Any such waiver shall constitute a waiver only with respect
to the specific matter described in such writing and shall in no way impair the
rights of the party or Indemnitee granting such waiver in any other respect or
at any other time. Neither the waiver by any of the parties hereto or any
Indemnitee of a breach of or a default under any of the provisions of this
Agreement, nor the failure by any party hereto or any Indemnitee on one or more
occasions, to enforce any of the provisions of this Agreement or to exercise any
right, powers or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights, power or privileges hereunder. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party or Indemnitee may otherwise have at law or in equity or
otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
MCM GROUP, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief
Executive Officer
XxXXXXXX, XXXXXXXX &
XXXXXX, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief
Executive Officer
XXXXXXX, DUBILIER & RICE, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name:
Title:
