Exhibit 10.1
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of October 22, 2007
(the “Agreement”), by and between Ascendia Brands,
Inc., with principal offices at 100 American Metro Boulevard, Suite
108, Hamilton, NJ 08619 (“ABI” or the
“Company”) and Carl Marks Advisory Group LLC, with
principal offices at 900 Third Avenue, New York, NY 10022
(“CMAG” or “Consultant”).
WHEREAS, ABI desires to engage the financial and
management consulting services of CMAG, subject to the terms and
conditions hereinafter set forth; and
WHEREAS, CMAG has agreed to provide such financial
and management consulting services subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the above
premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Engagement : ABI engages CMAG,
and CMAG hereby agrees to serve ABI, as a financial and management
consultant. Mark L. Claster, a Partner of CMAG, will serve as the
project partner on this engagement with Douglas A. Booth, a Partner
of CMAG, serving as the review partner. Messrs. Claster and
Booth shall supervise this engagement with whatever additional
resources from CMAG are reasonably required. ABI understands and
acknowledges that CMAG and Messrs. Claster and Booth have and
will continue to have other engagements during the term of this
Agreement.
2. Scope:
CMAG will provide Managing Director, Jack Wissman,
to act as Interim Chief Financial Officer to assume the typical
duties associated therein. In that connection, CMAG and Jack
Wissman will:
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Perform Chief Financial Officer duties, including
without limitation (i) assuming responsibility for overseeing the
compilation of any Quarterly Report on Form 10-Q, Annual Report on
Form 10-K or other disclosure document required to be filed during
the term of this Agreement, (ii) liaison with the Company’s
independent auditor (BDO Seidman LLP) and auditing consultants,
(iii) liaison with regulatory bodies, including the American Stock
Exchange and the U.S. Securities & Exchange Commission, (iv)
operational supervision of the Company’s Finance Department
and maintenance of appropriate internal controls therein, and (v)
such other duties as the Company may from time to time specify,
consistent with the position of Chief Financial Officer;
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Analyze the Company’s financial and capital
needs in detail including all significant underlying
assumptions;
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Review past performance and current financial
trends
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Review revenue assumptions by business segment,
customer, channel and product category, considering competitive
factors, pricing pressures and recent trends
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Review orders/backlog and program commitments and
compare to forecasts and historical experience
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Review margin assumptions
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Review cost assumptions including current run rates,
cost reduction programs already in progress, prospective cost
reduction programs, etc.
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Review balance sheet and liquidity
assumptions
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Review 13-week cash flow forecasts to understand and
refine the liquidity outlook;
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Review existing projections, internal budget,
current performance, variances, monthly and quarterly financials
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Review the Company’s overall business plan and
financial projections, current execution to the plan and expected
efficiencies and cost savings;
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Assist with further identification of actionable
opportunities, cost related or otherwise, intended to improve the
Company’s performance;
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Assist the Company in evaluating optimal capital
structures including, but not limited to, participating in
negotiations with all current and potential participants in the
Company’s capital structure;
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Communicate and interface with the Company’s
creditors and stakeholders;
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Assist with the development and review of the
business plan and organizational business model for the Company
intended to optimize its current asset utilization to provide
profitability and overall performance improvement;
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Execute the proposed business plan and
organizational model;
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Participate in the development of the 2009 forecast;
and
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Perform other tasks and duties related to this
engagement as are reasonably directed by ABI and acceptable to
CMAG.
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Upon mutual agreement between ABI and CMAG of the
additional services to be provided, this Agreement will be
incorporated into a broader and subsequent engagement at a later
time.
3. Term
: The term of this Agreement shall commence as of
the date of this Agreement and shall continue until the engagement
is completed unless canceled with or without cause by either party
on ten (10) business days prior written notice, in which event all
compensation and expenses owing to CMAG pursuant to Sections 4 and
5 below shall be immediately due and payable.
4. Compensation : For work performed
by CMAG as described in Section 2, ABI shall pay CMAG for its
Consulting Services a fixed monthly fee of $75,000 which shall be
payable in advance commencing from the date of this Agreement. CMAG
shall submit consulting service fee invoices for each payment due.
It is agreed that all of those invoices will be paid upon
receipt.
5. Expenses : CMAG shall be entitled
to reimbursement for all reasonable expenses incurred by it in the
performance of its duties (the “Expenses”) upon
presentation of appropriate documentation therefor. Such Expenses
shall include, but not be limited to, transportation of any of CMAG
senior personnel, employees or associates on business related to
the engagement, all legal expenses without limitation, cost of
hotels, meals, etc. Such Expenses shall also include, but not be
limited to, all reasonable legal fees incurred by CMAG in
connection with the performance of the services contemplated by
this Agreement, provided that ABI first consents to the retention
of such counsel for such services (which consent shall not be
unreasonably withheld or delayed). All Expenses shall be reimbursed
upon receipt of invoices therefor, which shall be submitted
promptly after the end of each week in which consulting services
are provided.
6. Indemnification : ABI shall
indemnify CMAG and hold it harmless for all acts or omissions, and
all decisions made, by CMAG (other than as a result of CMAG’s
gross negligence or willful misconduct) while performing services
for ABI and agrees to pay directly, upon presentation thereof, all
statements or invoices for all fees and expenses, including
reasonable attorneys’ fees incurred by CMAG in connection
with the defense of
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any such claims based on CMAG&
