CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT") is made as of February 24,
1998, by and between 99 CENTS Only Stores, a California corporation (the
"COMPANY") and Mark Ravich, an individual ("CONSULTANT").
RECITALS
A. Consultant currently serves as a director of Universal
International, Inc., a Minnesota corporation ("UNIVERSAL"), and possesses
extensive experience in all phases of the business operations of Universal.
B. The Company proposes to make a tender offer to acquire all of the
issued and outstanding shares of Common Stock of Universal (the "OFFER"),
and the Company desires to retain Consultant to provide advisory services to
the Company in connection with the Offer, and thereafter to provide sales,
management and operations consulting services in connection with the
operation of the business of Universal following the completion of the Offer
(collectively, the "SERVICES"), and Consultant desires to provide the
Services pursuant to this Agreement.
C. It is a condition to the willingness of the Company to make the
Offer that Consultant agree to provide the Services to the Company pursuant
to this Agreement, and as an inducement to the Company to make the Offer,
consultant has agreed to provide the Services to the Company pursuant to this
Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, and the
terms, conditions and covenants contained herein, the Company and Consultant
agree as follows:
1. CONSULTING SERVICES. The Company hereby retains Consultant to
provide, and Consultant agrees to provide, his services as a consultant to
the Company and to render when requested pursuant to the terms of this
Agreement the Services.
2. SCOPE OF SERVICES, RESPONSIBILITY AND DUTIES. Consultant's
services and duties as a consultant shall be to provide the Services in the
form of advice and consultation with the Board of Directors of the Company,
its President and other senior executive officers. The Company understands
that Consultant will be concurrently engaged in other business and personal
ventures, and therefore agrees to provide Consultant with at least five (5)
business days' notice of the need for any Services hereunder; PROVIDED that
Services may be provided upon shorter notice with the consent of Consultant.
The actual working hours during which Consultant shall be required to provide
Services hereunder shall be mutually agreed upon between Consultant and the
Company's
Board of Directors, but in no event shall Consultant be required to provide
Services in excess of sixteen (16) hours during any calendar month hereunder.
The Services may be provided at such location, or by such means (including
telephonic or other electronic means of transmission) as Consultant shall
reasonably determine to be appropriate. The Company acknowledges and agrees
that the Services provided by Consultant hereunder are non-exclusive;
consequently, subject to Consultant's compliance at all times with the
provisions of Sections 5 of this Agreement, in the course of Consultant's
business activities, Consultant may perform services similar to the Services
(including services as an employee) for any other Person.
3. TERM. The term of this Agreement shall commence upon the date
hereof and shall continue for a period of twelve (12) months from the date
hereof.
4. COMPENSATION AND EXPENSES.
4.1 COMPENSATION. In consideration of Consultant's agreeing to
provide the Services, the Company shall, effective as of the date of this
Agreement, grant to Consultant options in the forms attached to the
Stockholder Support Agreement to which this Agreement is attached as Exhibits
A and B (the "Consultant Option"). The Company agrees that the Consultant
Option is granted to Consultant in consideration of Consultant agreeing to
enter into this Agreement and to make himself available to perform the
Services, and shall be fully earned by Consultant regardless of whether the
Company shall utilize Consultant to perform any Services hereunder.
4.2 OTHER COMPENSATION. All compensation derived by Consultant
from other employment or activities not proscribed by the terms of this
Agreement shall inure solely to the benefit of Consultant.
4.3 EXPENSES. Any and all reasonable travel, entertainment and
out of pocket expenses incurred by Consultant on behalf of the Company in
connection with rendering the Services contemplated by this Agreement shall
be fully reimbursed to Consultant within ten (10) days of the submission of a
request for reimbursement by Consultant to the Company accompanied by
appropriate documentation in accordance with the Company's then-current
expense reimbursement policies.
5. CONFIDENTIALITY AND TRADE SECRETS. Consultant shall not, at any
time during the term of this Agreement, exploit, use for any purpose not
specifically related to the Services or disclose to any Person any
confidential information, including price lists, pricing information,
customer lists, customer names, financial information, trade secrets,
know-how, unprinted or printed data or any related intangible property
developed during or prior to the term of this Agreement, belonging to, used
by, or developed by or for the benefit of the Company or Universal
(collectively "Trade Secrets"); PROVIDED, HOWEVER, that any such information
that may be obtained by a reasonably diligent businessman from readily
available and public sources of information shall not be deemed to be Trade
Secrets, unless such information was first published in breach of
2
this Agreement or any other confidentiality agreement entered into between
Consultant and the Company.
6. RETURN OF CORPORATE PROPERTY AND TRADE SECRETS. Upon any
termination of this Agreement, Consultant shall turn over to the Company all
property, writings or documents then in his possession or custody belonging
to or relating to the affairs of the Company or Universal, or comprising or
relating to any Trade Secrets.
7. RESIGNATION AS DIRECTOR. Concurrent with the execution of this
Agreement, Consultant hereby resigns as a director of Universal. In the
event that either (x) prior to the commencement of the Offer, the Company
announces that it has determined not to proceed with the Offer, or (y)
following the commencement of the Offer but prior to such time (if any) that
the Company actually purchases any shares of the Common Stock of Universal
(the "Closing") pursuant to the Offer, the Offer is terminated, the Company
agrees to take all steps reasonably necessary to cause Consultant to be
reelected as a director of Universal, including without limitation, causing
the Company's Board designees to vote in favor of electing Consultant to the
Board and voting all shares of common stock of Universal then held by the
Company in favor of the election of Consultant to the Board, and shall
thereafter use its reasonable efforts to assure Consultant's continued
presence on the Board until November 17, 1999.
8. MISCELLANEOUS.
8.1 Consultant is entering into this Agreement as an independent
contractor, and no employment relationship, partnership, joint venture, or
other association shall be deemed to be created by this Agreement.
8.2 This Agreement shall be binding on and inure to the benefit of
the parties hereto and their respective successors and assigns; PROVIDED,
that Consultant's duties and obligations hereunder may not be delegated or
assigned by him in any manner.
8.3 This Agreement may be executed in two or more counterparts,
all of which, when taken together, shall constitute one and the same
Agreement.
8.4 The internal substantive laws (and not the choice of law
rules) of the State of Minnesota shall govern the validity and interpretation
of this Agreement and the performance by the parties hereto of their
respective duties and obligations hereunder.
8.5 Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to make the provision valid and enforceable
under the applicable law, but if any provision of this Agreement shall be or
become invalid or prohibited under any applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity only, without
thereby invalidating the remainder of such provision or the remaining
provisions of this Agreement.
3
8.6 The obligations of Consultant under Section 5 and Section 6 of
this Agreement shall survive the termination of this Agreement and/or the
cessation of the provision of Services by Consultant regardless of the reason
or cause therefor.
8.7 No modifications, extensions, or waiver of any provisions
hereof or any release of any right hereunder shall be valid, unless the same
is in writing and is consented to by all parties hereto.
8.8 This Agreement embodies the entire understanding of the
parties hereto and no change may be made in it except in writing signed by
both parties.
8.9 All notices and communications provided for hereunder shall be
in writing and shall be given by personal delivery or by registered or
certified mail to the following business addresses or to such other address
as either party shall designate in writing to the other.
If to the Company:
99 CENTS Only Stores
4000 East Union Pacific Avenue
City of Commerce, CA 90023
Attn: Andy Farina
If to Consultant:
Mark Ravich
[address]
8.10 Captions and paragraphs headings used herein are for
convenience only and are not a part of this Agreement and shall not be used
in construing it.
8.11 Whenever the term "Person" is used in this Agreement, the term
shall mean and include any individual, partnership, trust, corporation, joint
venture, association, government, government bureau or agency, foreign or
domestic, or other entity of whatever kind or nature. Whenever the singular
is used herein and where required by the context, the same shall include the
plural, and the neuter gender shall include the masculine and feminine
genders.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the day and year first hereinabove set forth.
99 CENTS ONLY STORES
By: /s/ David Gold
--------------------------
Its: Chairman of the Board,
Chief Executive Officer
and President
/s/ Mark Ravich
-----------------------------
Mark Ravich
5