EXHIBIT 10.20
CONSULTING
AGREEMENT
This Consulting Agreement
(“Agreement”) is entered into by and between Mueller
Water Products, Inc. , a corporation formed under the laws of
the State of Delaware (“the Company”), with its
principal place of business at 1200 Abernathy Road, Suite 1200,
Atlanta, Georgia 30328, and Michael T. Vollkommer
(“Consultant”), at 10620 Oxford Mill Circle,
Alpharetta, Georgia 30022. The Company and Consultant shall
collectively be referred to as the
“Parties.”
W I T N E S S E T
H:
WHEREAS, Consultant possesses
expertise in accounting and financial matters relating to the
Company and its subsidiaries;
WHEREAS, Consultant was until the
effective date of this agreement an employee of the Company, and
Consultant has resigned effective at the close of business on
July 15, 2008; and
WHEREAS, the Company desires to
retain Consultant in connection with its ongoing operations and
financial, accounting and financial reporting matters.
NOW THEREFORE, for and in
consideration of the premises, the mutual covenants and agreements
contained herein, and for other good and valuable consideration,
the receipt, sufficiency and adequacy of which are hereby
acknowledged, the Parties hereby agree as follows:
1. Engagement as an Independent
Contractor . The Company hereby engages Consultant as an
independent contractor and Consultant hereby accepts such
engagement as an independent contractor, upon the terms and subject
to the conditions set forth in this Agreement. The parties agree
that the Consultant has separated from service as an employee of
the Company as of July 15, 2008.
2. Term . This Agreement
shall commence on July 16, 2008 and shall continue until
January 15, 2009 (including any extension, the
“Term”). The parties may agree to extend the date of
this Agreement thereafter, but any extension or renewal shall be in
writing.
3. Duties . Consultant shall
provide support to the Company as detailed in Exhibit A, attached
hereto and incorporated into this Agreement, and as the Parties
mutually agree. Consultant shall not be required to spend more than
40 hours per month performing the services contemplated by this
Agreement. Consultant shall perform such duties in a professional
and competent manner and shall at all times act in a manner
consistent with the Company’s Code of Business Conduct and
Ethics, Insider Trading Policy and other policies. The Consultant
shall not purchase or sell securities of the Company during the
Term except in accordance with Company policy.
4. Consultant as an Independent
Contractor .
(a) The parties acknowledge and
intend that the relationship of Consultant to the Company under
this Agreement shall be that of an independent contractor. In
performing duties under this Agreement, Consultant shall complete
the services required according to his own methods of work which
shall be in the exclusive charge and control of Consultant and
which shall not be subject to the control or supervision of the
Company, except as to the results of his work. Consultant shall
determine his own working hours and schedule and shall not be
subject to the Company’s personnel policies and procedures
except as specifically instructed or as provided herein. The
Company shall not be responsible for withholding taxes with respect
to the Contractor’s compensation hereunder.
Consultant shall be entirely and
solely responsible for his actions or in-actions and the actions or
in-actions of his agents, employees or subcontractors, if any,
while performing services hereunder. Consultant agrees that he
shall not, in any form or fashion, maintain, hold out, represent
state or imply to any other individual or entity that an
employer/employee relationship exists between the Company and
Consultant, its agents and employees, or between the Company and
any subcontractor or its agents and employees. Consultant is not
granted and shall not represent that he is granted any right or
authority to make any representation or warranty or assume or
create any obligation or responsibility, express or implied, for,
on behalf of or in the name of the Company, to incur debts for the
Company or to bind the Company in any manner whatsoever.
(b) Except for any benefits to which
Consultant may be entitled as a result of his prior employment with
the Company, or any affiliates of the Company or under his
severance agreement, Consultant shall not be eligible to
participate in any employee benefit plan sponsored by the Company,
including, but not limited to, any retirement plan, insurance
program, disability plan, medical benefits plan or any other fringe
benefit program sponsored and maintained by the Company for its
employees, provided, however, that until December 31, 2008
Consultant shall be entitled to continue to participate in the
executive physical program and the financial planning program that
he was entitled to participate in as an executive officer of the
Company.
(c) As an independent contractor,
the Parties acknowledge and agree that Consultant has a
non-exclusive relationship with the Company and is free to enter
into agreements for services or support with other entities. The
Parties further agree that Consultant will not enter into any
agreement with a third party that will create a conflict of
interest, or the appearance of a conflict of interest, relative to
Consultant’s work pursuant to this Agreement. The
determination of the conflict of interest, or appearance of
conflict of interest, shall be at the sole reasonable discretion of
the General Counsel of the Company.
5. Time, Compensation and
Payments . As payment for his services under this Agreement,
Consultant shall work the time and receive compensation as set
forth in Exhibit B to this Agreement.
6. Termination of Agreement .
This Agreement may be terminated by either party at any time upon
thirty (30) days prior written notice of such termination to
the other party, provided that the Company shall not terminate this
Agreement prior to January 15, 2009. Notwithstanding the
foregoing, the Company may terminate this Agreement during the Term
in the event of a Breach by the Consultant. As used herein,
“Breach” shall mean:
(a) Consultant’s refusal to
perform his duties hereunder for fifteen days after a request in
writing requesting the performance of any such duties;
(b) Consultant’s provision of
accounting, financial or management services to an entity or
affiliates of any entity engaged in the sale or distribution of
products sold or distributed by the Company and its subsidiaries on
July 1, 2008 in the locations that the Company and its
subsidiaries are selling such products (meaning a “direct
competitor”). The parties shall consult with each other in
the event that Consultant determines he would like to consult with
a direct competitor, and the Company shall use reasonable good
faith efforts to agree to waive this clause to permit the
Consultant to provide such services to its competitors, provided
only that Company be convinced that such services do not compromise
any trade secrets or confidential information of the
Company.
(c) Consultant’s publication
to third parties in writing or orally of statements, comments or
information that the Company reasonably believes is disparaging to
the Company, its directors or officers.
(d) Consultant’s doing any
other action that would, if done during his tenure as an employee,
constitute “cause” for termination of his employment
under his prior offer letter from the Company.
7. Notices . All notices
required, necessary or desired to be given pursuant to this
Agreement shall be in writing and shall be effective when delivered
or received when such notice is deposited, postag
