EXHIBIT 99.9
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT"), dated as of the 20th day of
November, 2002, by and between ATLANTIC PREMIUM BRANDS, LTD., a Delaware
corporation ("APB"), whose principal place of business is 000 Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000 and STERLING ADVISORS, L.P., a Delaware limited
partnership ("MANAGER").
WITNESSETH:
WHEREAS, APB is engaged in the business (the "BUSINESS") of the wholesale
distribution of processed meats; and
WHEREAS, Manager has, in a significant manner, assisted APB in its current
effort to procure a senior debt facility (the "SENIOR DEBT FACILITY"), and, in
the future, APB desires to have Manager consult with it in financial, strategic,
and operational matters and recognizes that certain inducements must be offered
to Manager in order for APB to retain its services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and promises contained herein, the parties agree as follows:
1. Consulting Arrangement. Effective as of January 1, 2003, APB hereby
retains the Manager as a consultant, to assist as aforesaid.
2. Term.
A. Initial Term. The initial term of this Agreement (the "INITIAL
TERM") shall commence on January 1, 2003 and shall continue until December 31,
2004. The period from January 1, 2003 to the date of this Agreement's expiration
or sooner termination shall be deemed the "CONSULTING PERIOD".
B. Automatic Renewal. The term of this Agreement shall automatically
extend for additional one (1) year periods commencing on January 1, 2005, and
each January 1 thereafter, unless and until terminated by written notice given
by either party to the other twelve (12) months prior to each applicable
termination date.
3. Duties. Manager agrees to make itself available to APB to, and upon the
request of APB Manager shall, perform the following duties and tasks during the
Consulting Period including any renewals thereof, devoting such time as is
reasonably necessary to fulfill such duties: (i) analyzing APB's present and
future financing needs and assisting APB in procuring such financing, (ii)
analyzing and assisting in the preparation of short- and long-term strategic
planning, and (iii) targeting and assisting in the acquisition of potential
acquisition candidates for APB, and shall faithfully, diligently and competently
perform to the best of their ability all of the duties assigned, or refrain from
such activities proscribed by APB, subject, however, to the supervision and
control of the Board of Directors of APB.
4. Compensation.
A. Investment Banking Fees. In consideration of the services
rendered by Manager in connection with APB's procurement of the Senior Debt
Facility, APB shall pay to Manager the aggregate sum of One Hundred Fifty
Thousand Dollars ($150,000), concurrent with the consummation of the Senior Debt
Facility.
B. Base Fee. In consideration of Manager making itself available to
provide services as described in Section 3 and in consideration of the services
to be rendered by Manager during the Consulting Period including any renewals
thereof, APB shall pay to Manager compensation equal to a base consulting fee
(the "BASE FEE") at the rate of TWO HUNDRED THOUSAND AND NO/100THS DOLLARS
($200,000.00) per annum, earned and payable in equal monthly installments on the
last day of each month during the Consulting Period, without deductions. The
Base Fee shall increase 5% on January 1 of each year during the Consulting
Period. APB shall
reimburse Manager for all expenses necessarily and reasonably incurred by
Manager in connection with the Business, against presentation of proper receipts
or other proof of expenditure, and subject to such reasonable guidelines or
limitations, and which are to be applied prospectively only as the Board of
Directors of APB may impose.
C. Bonuses. Manager may receive bonuses and increases to the Base
Fee as APB's Board of Directors may approve, in its sole and absolute
discretion.
5. Restrictive Covenants. Manager hereby agrees:
A. Non-disclosure. Manager acknowledges that it has been and will be
entrusted with trade secrets, marketing, operating and strategic plans, customer
and supplier lists, proprietary information and other confidential or
specialized data and/or information relative to the business of APB and its
predecessors, whether now existing or to be developed or created after today's
date (collectively, "TRADE SECRETS"). Manager shall at all times during the
Consulting Period and thereafter hold in strictest confidence any and all Trade
Secrets that may have come or may come into its possession or within its
knowledge concerning the products, services, processes, businesses, suppliers,
customers and clients of APB or its affiliates and their predecessors. Manager
agrees that neither it nor any person or enterprise controlled by it will for
any reason directly or indirectly, for itself or for the benefit of any other
person, use, copy, divulge or otherwise disseminate or disclose any of the Trade
Secrets owned or used by, or licensed to, APB or any of its affiliates or
otherwise relating to APB or its business, provided that Manager may disclose
Trade Secrets pursuant to an order by a court of competent jurisdiction,
provided, further, that Manager shall give APB notice of such order and any
court pleading requesting such disclosure, in order to provide APB with an
opportunity to prevent such disclosure or procure an appropriate protective
order.
B. Customers. Manager acknowledges that customer accounts of APB and
its affiliates are and will at all times be the sole and separate property of
APB and such affiliates, in which Manager has no rights whatsoever, and all
activities of or work performed by each pursuant hereto or as a consultant to or
manager of APB or its affiliates have been and in the future will be performed
for the benefit of APB and its affiliates and the goodwill resulting from
Manager's efforts is and at all times will be the sole and separate property of
APB and its affiliates, which goodwill is intended to be protected, in part, by
this Section.
C. Survival. The provisions of this Section shall survive the
termination of this Agreement, irrespective of the reason therefor.
6. Remedies. Manager and APB each acknowledge that any breach of this
Agreement by each will cause irreparable harm to the other, that such harm will
be difficult if not impossible to ascertain. Therefore, if any action or
proceeding is commenced by or on behalf of one party seeking to enforce the
provisions hereof, such party shall be entitled to equitable relief, including
injunction, against any actual or threatened breach hereof, and any damages
arising therefrom including, without limitation, reasonable fees of its
attorneys and their support staff and all other costs and expenses incurred in
connection therewith without bond and without liability should such relief be
denied, modified or vacated. Neither the right to obtain such relief nor the
obtaining of such relief shall be exclusive of or preclude a party from any
other remedy. Each party hereto hereby waives the claim or defense to an action
for equitable relief by the other that such party has an adequate remedy at law
or has not been or is not being irreparably injured by such breach. FURTHERMORE,
EACH PARTY HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE OF ANY NATURE ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT.
INSTEAD ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT
A JURY.
7. Indemnification. APB shall indemnify Manager to the fullest extent
permitted by Delaware law, and shall advance all defense costs to the fullest
extent permitted thereby.
8. Assignment. Manager acknowledges that the services to be rendered by it
hereunder are unique and personal and that it may not assign any of its rights
or delegate any of its duties or obligations hereunder to any
other person or entity, whether by voluntary or involuntary assignment or
transfer. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of APB.
9. Notices. All notices, demands and communications required or permitted
to be given under this Agreement shall be sufficient if in writing and shall be
deemed to have been duly given on the date received if delivered personally or
two days after the date such notice, demand or communication is sent if sent by
first class, certified or registered mail, return receipt requested, postage
pre-paid and addressed, or one day after the date such notice, demand or
communication is sent if sent by overnight courier service to the Manager at the
address set forth below, or to APB at its principal place of business, or to
such other person at such location as either party hereto may subsequently
designate in a similar manner.
10. Waiver of Breach. The failure of a party at any time to require
performance by the other of any provision expressed herein shall in no way
affect such party's right thereafter to enforce such provision. Furthermore, a
waiver by a party of a breach of any provision hereof by the other party shall
not operate or be construed as a waiver of any subsequent breach by the other
party.
11. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. Any prior statements,
negotiations, representations, understandings, proposals or agreements relating
to the subject matter hereof shall be deemed to be merged into this Agreement,
and to the extent inconsistent herewith shall be deemed to be of no force or
effect. No alteration, amendment or modification of any of the terms or
provisions hereof shall be valid unless made pursuant to an instrument in
writing signed by the parties hereto.
12. No Conflicting Agreements. The parties hereto represent and warrant to
each other that they are not parties to any agreement, contract or
understanding, whether consulting or otherwise, which would in any way restrict
or prohibit them from undertaking or performing their obligations hereunder.
13. Expenses upon Default. If any party defaults in the performance of any
of its covenants, agreements or obligations described in this Agreement, then in
addition to any and all other rights or remedies which the non-defaulting party
may have against the defaulting party, the defaulting party will be liable to
and will pay to the non-defaulting party a sum equal to all of the
non-defaulting party's court costs and fees of its attorneys and their support
staff and all other costs and expenses associated with such dispute incurred in
enforcing the covenants, agreements or obligations of the defaulting party
herein.
14. Applicable Law. The terms and conditions of this agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
STERLING ADVISORS, L.P.
By Sterling Group, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chairman
