EXHIBIT 10.23
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT
(this “ Agreement ”) is made and entered
into this 27th day of July, 2007, by and among Interstate Brands
Corporation, a Delaware corporation (the “
Company ”), and Miller Management Group, Inc.,
a Colorado corporation (“ Consultant
”).
WHEREAS , Consultant has
considerable knowledge and expertise concerning the operation and
management of consumer food companies utilizing direct store
delivery structures (“ DSD ”);
WHEREAS , the Company has
previously engaged Consultant pursuant to another Consulting
Agreement dated March 8, 2007, and Consultant has
satisfactorily completed the Deliverables thereunder;
WHEREAS , the Company desires
to again engage Consultant as herein set forth in order to continue
to utilize Consultant’s knowledge and expertise; and
WHEREAS , Consultant is
willing to make itself available to the Company for the period
provided in this Agreement subject to the terms and conditions
hereinafter provided;
NOW, THEREFORE , in
consideration of the premises, the mutual covenants and agreements
made herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree
as follows:
| 1. |
|
Performance of Consulting Services .
Consultant agrees to perform consulting services for the Company
with respect to such business matters of the Company and at such
time or times as the Company may reasonably request, including,
without limitation, completion of the services and preparation of
the deliverables set forth on Exhibit A (the “
Services ”). Consultant further agrees that the
Services will be provided by its employee Jane S. Miller (“
Employee ”) . During the term of this
Agreement, Employee shall serve in the capacity of Acting Executive
Vice President and Chief Customer Officer of the Company.
Consultant shall have discretion as to the time, place and manner
of the performance of the Services, consistent with the
satisfactory performance of such Services. It is anticipated by the
parties that Employee will dedicate a substantial portion of her
working time to performance of the Services during the term of this
Agreement and will participate in such telephone calls, electronic
communications and meetings as may be reasonably requested by the
Company. |
| 2. |
|
Independent Contractor; No Fringe Benefits
. |
(a)
Consultant is engaged by the Company to exercise its independent
and professional judgment in performing the Services. Accordingly,
Consultant will determine, in its sole discretion, the manner,
means, details and methods used in performing the Services.
Consultant understands and agrees that it shall not have any right
or authority to assume or create any obligation or responsibility,
express or implied, on behalf or in the name of the Company or to
bind the Company in any manner. Further, Consultant shall not take
any actions that would reasonably lead a third party to believe
that Consultant has the authority to assume or create any
obligation or responsibility, express or implied, on behalf or in
the name of the Company or to bind the Company in any manner.
Consultant hereby acknowledges that it is solely responsible for
paying all federal, state and local income or business taxes,
including estimated taxes, self-employment, Federal Insurance
Contribution Act taxes, workers’ compensation and
unemployment compensation taxes and business license fees, if
applicable, and any other taxes, fees, additions to tax, interest
or penalties which may be assessed, imposed, or incurred as a
result of the compensation provided to Consultant by the Company or
provided to Employee by Consultant pursuant to this Agreement. The
Consultant shall be solely and exclusively responsible for
reporting, withholding and paying any and all such taxes, as and
when due and payable.
(b)
Neither Consultant nor Employee shall be entitled to any rights and
fringe benefits afforded to Company employees, including health
insurance, disability or unemployment insurance, workers’
compensation insurance, pension and retirement, profit-sharing, or
any other policy, plan or program applicable to employees of the
Company.
| 3. |
|
Term . The term of the consulting
arrangement shall commence on July 22, 2007 (the “
Effective Date ”), and continue until the
earlier to occur of (i) the date that is nine (9) months
following the Effective Date, (ii) the effective date of the
Company’s Plan of Reorganization under Chapter 11 of the
US Bankruptcy Code, or (iii) the date the Chapter 11
cases are converted to Chapter 7 of the Bankruptcy Code (the
“ Term ”). |
| 4. |
|
Termination . The Company may terminate this
Agreement at any time, with or without cause, upon five
(5) days notice to Consultant. Consultant may terminate this
Agreement upon five (5) days notice to Company in the event
that Company fails to perform its obligations hereunder, provided
Company has not cured such failure to perform during such five
(5) day notice period. Immediately upon the termination of
this Agreement, all payments shall immediately cease; provided,
however, that the Company shall pay to Consultant such compensation
as Consultant shall have earned up to the date of the termination
of the consulting arrangement. |
| 5. |
|
Compensation; Expenses . |
(a) The
Company agrees to pay to Consultant, as compensation for the
Services, at the rate of Six Hundred Fifty Dollars ($650.00) per
hour for each hour that Consultant performs Services under this
Agreement, limited to 50 hours per week. Such compensation shall be
payable in arrears, with payment of the total hours billed (subject
to the weekly limit) less a holdback of $200.00 per hour (the
“ Holdback ”), to be made within ten
(10) business days of Company’s receipt of an invoice
setting forth the dates and hours worked by Consultant during the
preceding calendar month. The total amount of the Holdback earned
will be paid at the end of the Term of this Agreement. Should
Consultant refuse to perform the Services for the full Term without
cause, it shall not be eligible to receive any portion of the
Holdback.
Consultant may,
at its election require the Company to seek approval from the
bankruptcy court of the terms of compensation set forth in this
Agreement. Any such election must be in writing and shall be
delivered to the Company in the manner set forth in section 17
below. In the event that Consultant so elects and such compensation
is not approved by the Bankruptcy Court on terms acceptable to
Consultant by a date that is no later that the next regularly
scheduled omnibus hearing date in the Company’s bankruptcy
case that occurs more than twenty days after the Company receives
written notice of such election,, then Consultant may terminate the
Agreement pursuant to section 4 of this Agreement. Provided,
however, in the event Consultant terminates the Agreement pursuant
to this clause, it shall be paid any Holdback accrued through the
effective date of such termination.
(b) The
Company shall reimburse Consultant for all ordinary, necessary and
reasonable expenses (including, but not limited to, lodging, meals
and travel expenses) incurred and paid by Consultant in the course
of the performance of the Services and consistent with the
Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses for the
Company’s own employees, and subject to the Company’s
requirements with respect to the manner of reporting such
expenses.
(c) The
Company shall provide Employee with administrative support
substantially equivalent with that made available to employees of
the Company at the vice president level.
(d) The
Company shall deliver a copy of this Agreement to representatives
of its senior secured lenders, Official Committee of Unsecured
Creditors and Official Committee of Equity Security Holders within
two (2) business days after execution hereof and shall receive
their consent to the terms hereof in a form that is reasonably
acceptable to Consultant.
2
| 6. |
|
Covenant Not to Compete . During the term
of this Agreement and for a period of two (2) years following
its termination, Consultant and Employee will not, directly or
indirectly, without the express written consent of the Company own,
manage, operate, control or participate in the ownership,
management, operation or control of, or have any interest,
financial or otherwise, in or act as an officer, director, partner,
principal, member, manager, shareholder, proprietor, employee,
agent, representative, consultant or independent contractor of, or
in any way assist any person or entity in the conduct of, any
business that is engaged or may become engaged in any business
competitive to any business now or at any time during the period
hereof engaged in by the Company or any of its affiliates,
including, but not limited to, any business that is engaged in the
production, marketing, distribution or sale of fresh baked bread or
sweet goods; provided, however, that notwithstanding the foregoing,
Consultant or Employee may own not more than five percent (5%) of
the outstanding equity securities in any corporation or entity that
is listed upon a national stock exchange or actively traded in the
over-the-counter market. |
| 7. |
|
Covenant Not to Solicit . Consultant
agrees that, during the term of this Agreement and for a period of
one (1) year thereafter, neither it nor any of its agents or
affiliates will directly or indirectly engage, recruit, solicit for
employment or engagement, offer employment to or hire, or otherwise
seek to influence or alter any relationship with, without the prior
written co |
|
