Attached files
Exhibit 10.18
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Consulting Agreement") is made
effective the 24th day of November, 2009 by and among David Skinner (the
"Consultant"), an individual residing in Holmes County, Ohio, and Castlerigg
Master Investment Ltd. (the "Owner"), an entity organized under the laws of the
British Virgin Islands, and having a mailing address in care of Sandell Asset
Management Corp., 40 West 57th Street, New York NY 10019.
RECITALS:
A. Pursuant to a voluntary surrender agreement between Amish Naturals,
Inc. and Owner of the same date, Owner is the owner of and in possession of
certain personal property items, including but not limited to equipment, goods,
instruments and inventory related to the production of saleable food products,
which items are currently located at 6399 C.R. 83, Holmesville, Ohio.
B. Owner desires to contract for the services of Consultant for the
purpose of having Consultant assist Owner in selling the personal property
items, more fully described throughout this Agreement, in an efficient and
timely manner.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, and wishing to be legally bound hereby, Owner and the
Consultant hereby agree as follows:
1. Personal Property Items subject to this Agreement. The personal
property items that are the subject of this Agreement are those personal
property items currently located at 6399 C.R. 83, Holmesville, Ohio, and which
items Owner received via a voluntary surrender agreement from Amish Naturals,
Inc. on or about the same date as this Agreement. The items include, but are not
specifically limited to those items listed out on Schedule A. Owner and
Consultant agree that they may add or remove items from Schedule A by written
agreement signed by both parties, throughout the duration of this Agreement.
2. Duties of Consultant. Consultant agrees to use his best efforts to
identify and locate buyers for the personal property items that are the subject
of this agreement and to recommend whatever method of sale, whether public or
private, that Consultant, in his opinion, deems to be the most beneficial for
generating the highest possible sale price for the items.
3. Commission. So long as this Agreement is in effect, Consultant is
entitled to receive a commission as set forth below on the gross amount of any
proceeds from the sale of any items that are the subject of this Agreement. Such
amount shall be due and payable at the time of closing of any sale, and any
third party closing agent, banking institution, buyer, or the like is hereby
authorized to pay the Consultant's commission directly to Consultant.
Gross Amount of Sale Price Commission Amount
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$0 - $100,000 0%
$100,001 - $350,000 $2,000
$350,001 - above 4.5%
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4. Term. Unless earlier terminated, the term of this Agreement shall be
for 60 days from the date of this Agreement stated above. During the term of
this Agreement, if Consultant assists Owner in any manner at all associated with
the sale of the personal property items that are the subject of this Agreement,
whether Owner sells those items directly or through another agent, employee or
other representative during this term, there shall still be entitled to the
commissions as set forth above.
5. Termination. This Agreement may be terminated at any time by Owner
for any reason in the good faith exercise of its sole discretion. Upon
termination of this Agreement, Owner's obligations under paragraph 3 of this
Agreement shall terminate.
6. Insurance and Storage Fees. Owner shall be responsible for
maintaining insurance on the property items that are the subject of this
agreement, and Consultant shall have no liability for the same. Owner agrees to
be responsible any rent or storage fees that will be charged for the property
items to remain located at 6399 CR 83, Holmesville, Ohio until they are sold, or
until this agreement expires. Owner shall be responsible for removing any items
located at 6399 CR 83 Holmesville, Ohio by the expiration of this Agreement, and
Consultant shall have no liability for the same.
7. Assignment and Binding Effect. This Agreement may not be assigned by
any party hereto without the prior written consent of the other party hereto and
any purported assignment in violation of these terms shall be null and void ab
initio. All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
permitted assigns of the parties hereto.
8. Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party and duly given to the other party.
9. Notices. Any notice, request, demand, waiver, consent, approval, or
other communication which is required or permitted to be given to any party
hereunder shall be in writing and shall be deemed given only if delivered to
such party personally or upon mailing if sent to such party by registered or
certified mail (return receipt requested), with postage and registration or
certification fees thereon prepaid, (with a copy sent by facsimile transmission
to counsel), addressed to the party at its address set forth below:
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To Owner:
Castlerigg Master Investment Ltd.
c/o Sandell Asset Management Corp.
40 West 57th Street, 26th Floor
New York, New York 10019
Attention: Matthew Pliskin
Phone: (212) 603-5710
Fax: (212) 603-5700
With a copy to:
Jeffrey M. Levinson, Esq.
30100 Chagrin Boulevard
Suite 250
Cleveland, Ohio 44124
Phone: (216) 514-4935
Fax: (216) 514-4936
To Consultant:
David Skinner
6399 CR 83
Holmesville, Ohio 444633
With a copy to:
Steven R. Hobson II, Esq. and
Ronald Towne, Esq.
LEIBY HANNA RASNICK
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TOWNE EVANCHAN PALMISANO & HOBSON, LLC
388 S. Main St., Suite 402
Akron, Ohio 44311
Phone: (330) 253-2227
Fax: (330) 253-1261
or to such other address or person as any party may have specified in a notice
duly given to the other party as provided herein. Such notice, request, demand,
waiver, consent, approval or other communication shall be deemed to have been
given as of the date so delivered.
10. Severability. If any provision of this Agreement, or the
application thereof to any Person or any circumstance, is invalid or
unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision, and (ii) the
remainder of this Agreement and the application of such provision to other
Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
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11. Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the State of Ohio.
12. Section Headings. All section headings are for convenience only and
shall in no way modify or restrict any of the terms or provisions hereof.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and the Owner and
Consultant may become parties hereto by executing a counterpart hereof. This
Agreement and any counterpart so executed shall be deemed to be one and the same
instrument. A facsimile copy of the signature page hereof transmitted by a party
hereto shall be effective to constitute the execution and delivery hereof by
such party.
14. Construction. This Agreement and the documents to be delivered
hereunder constitute the entire understanding and agreement among the parties
hereto concerning the subject matter hereof. All negotiations between the
parties hereto are merged into this Agreement, and there are no representations,
warranties, covenants, understandings or agreements, oral or otherwise, in
relation hereto between the parties other than those incorporated herein. The
parties agree that the terms and conditions of this Agreement are the result of
negotiations between the parties and that this Agreement shall not be construed
in favor of or against any party by reason of the extent to which any party or
its professionals participated in the preparation of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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15. Amendment. This Agreement may not be amended, released, discharged,
abandoned, changed or modified in any manner except by an instrument in writing
which refers to this Agreement and is executed by the parties hereto.
16. Waiver of Claims. Upon the termination of this agreement, and
provided Consultant used his good faith to carry out his duties hereunder during
the term of this agreement, Owner shall provide Consultant with a Waiver and
Release of Claims that will fully and forever, release and discharge Consultant,
his heirs, assigns, employees, attorneys, successors, and representatives,
whatever the case may be, from any and all actions, causes of action, damages,
judgments, debts, contracts, claims and demands of whatsoever kind and nature,
in law or equity, whether known or unknown, that have existed since the
beginning of time against Owner in whatever capacity, including his
representative capacities as Shareholder, Officer and Director of Amish
Naturals, Inc., until the date of the Waiver and Release of Claims is issued.
CASTLERIGG MASTER INVESTMENTS LTD.
By: Sandell Asset Management Corp., its Investment Manager
By: //signed//
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Name:
Title:
By: /s/ David Skinner
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David Skinner
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