Exhibit 10.55
CONSULTATION AND NON-SOLICITATION AGREEMENT
THIS
AGREEMENT made as of the 27th day of August, 2009 between MGP INGREDIENTS, INC., a Kansas corporation (“Company”) and LAIDACKER M. SEABERG (“Seaberg”), a resident of Atchison
County, Kansas.
WHEREAS,
Seaberg, as a former director and officer of the Company, has valuable
knowledge of and experience in the Company’s business; and
WHEREAS,
the Company wishes to engage Seaberg to provide consulting services for it in
connection with the operations of its business; and
WHEREAS,
Seaberg agrees to provide consulting services to the Company;
NOW,
THEREFORE, for and in consideration of the mutual covenants herein made,
Seaberg and the Company agree as follows:
1. Consultation
Agreement.
(a) The Company
shall pay a retainer to Seaberg in the amount of $250,000 annually in equal
weekly payments, upon and subject to the terms of this Agreement. Seaberg
agrees that for a period commencing on the effective date hereof and ending on June 14,
2011 (the “Term”), he will provide the Company’s President and Chairman of the
Board such assistance, advice and consultation in connection with the Company’s
business as the Company’s President or Chairman of the Board may request from
time to time after reasonable notice to Seaberg, such assistance, advice and
consultation to include, without limitation, matters involving industry
developments, marketing strategy and governmental affairs. In such capacity,
Seaberg 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.
(b) It is also
understood that Seaberg’s services under this Agreement will be rendered
primarily in the Atchison, Kansas area but that upon request Seaberg will
travel to such other places outside of Atchison, Kansas as the Company may
reasonably request. All expenses
incurred by Seaberg in connection with any such travel shall be Seaberg’s
responsibility.
(c) The hours
during which Seaberg performs services hereunder on any given day shall be
determined by him, although Seaberg will use reasonable efforts to respond
timely to and to accommodate the requests of the Company’s President and
Chairman of the Board for his services.
(d) As a
consultant, Seaberg will be an independent contractor and will not be
considered an employee of the Company for any purpose.
(i) Nothing in this
Agreement shall be construed as entitling Seaberg to (A) negotiate or
enter into any oral or written agreement on behalf of the Company or any of its
affiliates, or (B) otherwise act on behalf of or bind the Company or any
of its affiliates.
(ii) Seaberg shall
file all tax returns and reports required to be filed by Seaberg on the basis
that Seaberg is an independent contractor and not an employee of the
Company. Seaberg shall timely pay in
full all income and employment taxes in connection with Seaberg’s engagement
and remuneration under this Agreement (including federal, state and local income
taxes and self-employment social security (SECA) taxes). The Company shall not pay any unemployment or
workers’ compensation taxes or premiums on behalf of or regarding Seaberg.
(e) Seaberg may
perform services for any other person or firm without the Company’s prior
consent, provided that in doing so he does not violate this Agreement or any
other agreement with the Company.
2. Non-Solicitation;
Non-Disparagement
(a) Seaberg
acknowledges and agrees that during the Term of this Agreement and for a period
of one year thereafter he will not, directly or indirectly, (i) solicit,
directly or indirectly, any of the Company’s customers, prospects, business or
patronage for any competitive business anywhere in the United States, or (ii) solicit,
divert, entice or otherwise attempt to take away any customers, active
prospects, business, patronage or orders of the Company anywhere in the United
States.
(b) During the Term
and for a period of one year thereafter, Seaberg shall not, directly or
indirectly, (i) solicit or induce or attempt to solicit or induce any
employee, representative or agent of the Company to terminate its employment,
representation or other association with the Company, or (ii) disparage
the Company, or any of its past, present or future agents, officers,
shareholders, directors or employees to the public, media, any individual or
any other third party.
3. Protection
of Confidential Information.
(a) As used in this
paragraph 3, 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 Company’s or a customer’s: 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 Seaberg as information which it wishes to preserve as secret. Such other Confidential Information and the
dates on which the Company so advised Seaberg 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, Seaberg acknowledges that he has been advised that the Company
wishes to preserve Confidential Information as secret.
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(c) Unless Seaberg
shall first secure the written consent of the Company, Seaberg 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
Seaberg is presently aware or becomes informed during such time, whether or not
developed by Seaberg, except as required in the exercise of Seaberg’s 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 Seaberg. Seaberg 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
Company’s request, Seaberg shall promptly deliver to the Company all manuals,
sales materials, letters, notes, notebooks, reports, customer lists, and all
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 Seaberg.
(e) This paragraph
3 is intended to supplement, but not limit or supplant, any obligation of
Seaberg or remedy of the Company which may be otherwise imposed on Seaberg or
available to the Company under common law or equity without written agreement.
4. Other Considerations.
(a) In the event of
Seaberg’s death, the payments provided for herein will be made to such person
or persons as he may designate in writing and in the absence of such
designation to his estate. The Company may provide for such obligation through
insurance on the life of Seaberg, and Seaberg agrees to cooperate with the
Company if it elects to procure such a policy. Notwithstanding the foregoing,
the Company shall have no obligation to pay such amounts if Seaberg violates
the terms of this Agreement.
(b) Seaberg
acknowledges that his breach of the covenants contained in paragraph 2 or 3
will cause irreparable damage to the Company, and accordingly, Seaberg agrees
that in addition to other remedies which it may have hereunder, the Company may
seek equitable relief to enforce the obligations imposed hereunder.
5. 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
Seaberg as reflected in the Company’s records, or to the Company to 100
Commercial Street, P.O. Box 130, Atchison, Kansas 66002-0130, Attn: President.
6. 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
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respective heirs, personal representatives,
successors and permitted assigns; in
this regard, except as provided herein no rights or obligations of Seaberg
under this agreement are assignable without the prior written consent of the
Company. 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.
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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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/s/
Marta M. Myers
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By:
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/s/
John Speirs
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Marta
M. Myers
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John
Speirs
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Secretary
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Chairman
of the Board
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“SEABERG”
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/s/
Laidacker M. Seaberg
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Laidacker
M. Seaberg
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