CONSULTING AGREEMENT
This Agreement made and entered into this 12th day of January,
1999 by and between Xxxxxx Baking (MB), the Viking Group, LLC (Viking) and
Xxxxxxx Xxxxx (Xxxxx).
WITNESSETH
WHEREAS, MB is a private corporation whose principal offices
are located at 0000 X.X. Xxxxxxxxxx, Xxxxxxxx, Xxxxxx, 00000, and
WHEREAS, Viking is a private corporation whose principal
offices are located at 0000 Xxxxx Xxxxxxxx, Xxxxx, Xxxxxxxx, 00000 and Xxxxx is
an Illinois resident whose principal offices are located at 000 X. Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000 and together possess substantial expertise and
experience in strategic and financial planning, corporate structuring, financial
analysis, management of companies in the food industry, and
WHEREAS, MB desires to assure the availability of Viking Group
and Xxxxx as consultants and advisors as herein provided,
NOW, THEREFORE, in consideration of the premises hereof and
the mutual agreements hereinafter set forth, the parties hereby agree as
follows:
1. MB hereby engages Viking and Xxxxx as consultants to
render, and Viking and Xxxxx hereby accepts such engagement, during the period
commencing December 3, 1998 and terminating December 11, 1999 ("Expiration
Date"), to render such advisory and consultative services that MB may reasonably
request from time to time in order that MB may benefit from Viking and Xxxxx'x
expertise, knowledge, reputation and contacts. Viking and Xxxxx shall be
available upon reasonable notice to advise and consult with MB's officers and
directors at reasonable times by telephone, mail, and in person. Viking and
Xxxxx agree to execute a standard form of confidentiality agreement to protect
MB's confidential and proprietary information.
2. It is understood and agreed that Viking and Xxxxx are
presently engaged and intend to engage in various other businesses and advisory
and consulting relationships and Viking and Xxxxx shall be permitted from time
to time in their sole discretion to engage in the conduct of any other business
and any other advisory or consulting relationship and perform any and all
services with respect thereto; provided, however, during the term of this
Agreement, without MB's written consent, Viking and Xxxxx agree not to provide
advisory or consulting services to any entity that is a direct competitor of
Xxxxxx Baking. A direct competitor is defined as a multi-store, upscale retail
bakery.
3. It is understood and agreed that MB will provide Viking and
Xxxxx with information upon which Viking and Xxxxx will rely in rendering advice
and consulting hereunder and that MB shall be solely responsible for the
accuracy and completeness of such information. MB may, in its sole discretion,
proceed in accordance with or contrary to any advice given by Viking and Xxxxx
and Viking and Xxxxx shall not be responsible or liable for any advice or other
consultation given by them in good faith.
4. MB shall defend, indemnify and save harmless Viking and
Xxxxx from and against all claims arising from or in any manner related to the
services of Viking and Xxxxx, other than based on the gross negligence,
recklessness or willful misconduct of Viking or Xxxxx, and shall pay the
reasonable cost of legal services within 7 days of billing incurred by Viking
and Xxxxx in defending themselves. In that respect, Viking and Xxxxx may choose
his or its own counsel in defending himself.
5. MB agrees to sell each of Viking and Xxxxx a 5 year warrant
to purchase up to 125,000 shares of MB's Common Stock at an exercise price of
$1.00 per share. The purchase price for each warrant shall be $500 payable at
the time of issuance. The shares underlying such warrants will have piggyback
registration rights on any public offering on the same terms and conditions
granted to the holders of the Series C and Series D Preferred Stock.
6. In addition to the aforesaid compensation, MB shall pay to
Viking and Xxxxx upon receipt of reasonable verification all of their
out-of-pocket expenses incurred in connection with his services to MB up to a
maximum amount of $25,000. Viking and Xxxxx will request pre-approval from MB on
any expense exceeding $1,500.
7. Any controversies or claims arising out of, or relating to
this Agreement or the breach thereof, shall be settled by arbitration in
accordance with the commercial rules of the American Arbitration Association in
Denver, Colorado, which decision shall be final and binding on the parties, and
judgment upon the award rendered may be entered in any court having jurisdiction
thereof. In addition to all other remedies provided in law or equity, the
arbitrator is hereby authorized to assess costs and attorneys fees against
either party if the arbitrator finds, based on all the facts and circumstances,
that the conduct of or the claims made by such party were unreasonable or
substantially without merit.
8. This Agreement shall be construed in accordance with and
governed by the laws of the State of Colorado without regard to its rules
relating to conflicts of law.
9. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party by facsimile, in person or by courier.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set
forth above.
OREGON BAKING COMPANY,
dba XXXXXX BAKING
By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
President and CEO
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
VIKING GROUP, LLC
By: /s/ Xxxx Xxxxxxxxxx
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Its:
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