Exhibit
10.5
CONSULTATION AGREEMENT
THIS AGREEMENT made as of the
1st day of January, 2007 between MGP INGREDIENTS, INC.,
a Kansas corporation (Company) and MICHAEL TRAUTSCHOLD
(Trautschold), a resident of Johnson County, Kansas.
WHEREAS, Company wishes to engage Trautschold to
provide consulting services for it in connection with the operations of its
business; and
NOW, THEREFORE, for and in consideration of the mutual
covenants herein made, Trautschold and the Company agree as follows:
1. Consultation Agreement.
(a) In
consideration for the Companys agreement to pay him $250 an hour, upon and
subject to the terms of this Agreement, Trautschold agrees that for a period
commencing on the effective date hereof and ending on the earlier of December
31, 2007 or the date of his death, he will provide the Companys President such
assistance, advice and consultation in connection with the Companys
ingredients business as the Companys President may request from time to time
after reasonable notice to Trautschold.
In such capacity, Trautschold will use his best efforts, within the
bounds of law and ethics, to preserve the good will of the Company with its
customers, its employees, the ingredients industry and the general public. Trautscholds work under this Agreement may
include assisting in litigation involving the Company. Nothing in this Agreement shall in anyway
compel Trautschold to respond to questions except with an honest truthful
answer.
(b) It
is understood that if the Company has not utilized Trautscholds services for
at least 400 hours before December 31, 2007, it will on January 15, 2008 pay
him an amount equal to the difference between $100,000 and the amount
previously paid for his consulting services under this Agreement. It is also
understood that if the Company requests in writing, Trautschold will continue
to provide consulting services until December 31, 2012 at the hourly rate set
forth above. However, any such election will not require the Company to
actually utilize Trautscholds services or to utilize them for any minimum
amount of time after December 31, 2007. Fees
will be based on 1/4 hour increments. Fees
will be paid monthly commencing on February 15, 2007 for services rendered
during the prior month as evidenced by a monthly invoice submitted by
Trautschold. Such invoice will indicate
the time spent and identify the matter worked on and any expenses
incurred. If requested by the Company,
Trautschold will supply additional supporting data.
(c) It
is also understood that Trautscholds services under this Agreement will be
rendered primarily in the Kansas City, Missouri/Kansas City, Kansas
metropolitan area but that upon request Trautschold will travel to such other
places outside of the Kansas City, Missouri/Kansas City, Kansas metropolitan
area as the Company may reasonably request.
All reasonable expenses incurred by Trautschold in connection with any
such travel will be reimbursed by the Company within fifteen (15) days after receipt
of the monthly invoice submitted by Trautschold.
(d) It is anticipated that
this Agreement may require on the average thirty to thirty-five (30-35) hours
of work monthly, although there will be some months during which Trautschold
may not perform any services at all, and, on the other hand, some months in
which he will be required to work in excess of thirty to thirty-five
hours. The hours during which
Trautschold performs services hereunder on any given day shall be determined by
him, although Trautschold will use reasonable efforts to respond timely to and
to accommodate the requests of the Companys President for his services.
(e) As a consultant,
Trautschold will be an independent contractor and will not be considered an
employee of the Company for any purpose.
(f) Trautschold may
perform services for any other person or firm without the Companys prior
consent provided that in doing so he does not violate this Agreement or any
other agreement with the Company. In
this regard, Section 10 of the Separation Agreement and Release of Claims
between Trautschold and the Company requires the Companys prior written
consent to certain contacts by Trautschold.
2. Protection of Confidential Information.
(a) As used in this
paragraph 2 the term Confidential Information means attorney client or other
confidential communications or information protected by the work product
doctrine and any of the following, whether historical, current or proposed and
whether the Companys or a customers: customer lists, customer credit
information, marketing data, production
methods and formulas, recipes, processes, innovations, inventions, strategies,
suppliers, pricing and pricing methods, sales techniques, advertising,
traveling and canvassing methods, brochures or instructions relating to products,
services or business of the Company or any customer of the Company, and any
other information which the Company may from time to time identify in writing to
Trautschold as information which it wishes to preserve as secret. Such other Confidential Information and the
dates on which the Company so advised Trautschold may, but need not be,
recorded as an exhibit to be attached to and deemed a part of this Agreement.
(b) By executing this
Agreement, Trautschold acknowledges that he has been advised that the Company
wishes to preserve Confidential Information as secret.
(c) Unless Trautschold
shall first secure the written consent of the Company, Trautschold shall not
disclose or use at any time, either during or subsequent to the term of this
Agreement, any Confidential Information, whether or not patentable, of which
Trautschold is presently aware or becomes informed during such time, whether or
not developed by Trautschold, except as required in the exercise of Trautscholds
duties to the Company under this Agreement.
This obligation shall not apply to any Confidential Information which is
or shall become a part of the public domain through no fault of
Trautschold. Trautschold shall not be
deemed in breach of this provision for good faith actions undertaken in the
performance of duties requested of him by the Company under this Agreement.
(d) Upon the Companys
request, Trautschold shall promptly deliver to the Company all manuals, sales
materials, letters, notes, notebooks, reports, customer lists, and all
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copies thereof, and all other materials of a secret or confidential
nature related to the business of the Company or any customers of the Company,
which are in the possession or under the control of Trautschold.
(e) Trautschold
acknowledges that his breach of the covenants contained in this paragraph 2
will cause irreparable damage to the Company, and accordingly, Trautschold
agrees that in addition to other remedies which it may have hereunder, the
Company may seek equitable relief to enforce the obligations imposed hereunder.
(f) This paragraph 2 is
intended to supplement, but not limit or supplant, any obligation of
Trautschold or remedy of the Company which may be otherwise imposed on
Trautschold or available to the Company under common law or equity without
written agreement.
3. Other Considerations.
The payment on January 15, 2008 referred to in
subparagraph 1 (b) will be made notwithstanding Trautscholds death or
disability. In the event of Trautscholds
death, such payment will be made to such
person or persons as he may designate in writing and in the absence of
such designation to his estate. Notwithstanding the foregoing, the Company
shall have no obligation to pay such amounts if Trautschold violates the terms
of this Agreement or contests the validity of the Separation Agreement and
Release of Claims with the Company or its application to any act or omission of
the Company prior to the effective time thereof.
4. Notices. Any notice
required or permitted to be given hereunder shall be sufficient if in writing
and shall be deemed delivered upon the date of mailing if mailed by certified
or registered mail, return receipt requested, to the address of Trautschold as
reflected in the Companys records, or to the Company to 1300 Main Street, P.O.
Box 130, Atchison, Kansas 66002-0130, Attn:
President.
5. Miscellaneous. This
Agreement constitutes the entire Agreement of the parties hereto respecting the
subject matter hereof and supersedes all prior understandings or agreements,
oral or written, among all or any of such parties. This Agreement shall not be amended except by
a written agreement signed by all of the parties hereto. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns. This Agreement shall be governed by the laws
of the State of Kansas. In the event any
one or more of the provisions contained in this Agreement or any application
thereof shall be held to be illegal, the enforceability of the remaining
provisions of this Agreement or any other application thereof shall not in any
way be affected or impaired thereby. No
delay or failure on the part of any party hereto in exercising any rights
hereunder, and no partial or single exercise thereof, shall constitute a waiver
of any other rights hereunder. Whenever
the context hereof shall require, the use of any gender shall include all
genders and the singular shall include the plural, and vice versa. All exhibits attached hereto are incorporated
herein by this reference.
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COMPANY
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(CORPORATE SEAL)
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MGP INGREDIENTS, INC.
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ATTEST:
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By:
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/s/ Laidacker M.Seaberg
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Laidacker M. Seaberg
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Marta M. Myers
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Chief Executive Officer
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Secretary
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CONSULTANT
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/s/ Michael J. Trautschold
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Michael Trautschold
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