EXHIBIT 10P
INDEPENDENT CONSULTANT AGREEMENT
DATE: November 1, 1996
PARTIES: WHOLESOME & HEARTY FOODS, INC. ("WHFI")
an Oregon corporation
000 X.X. Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
E. XXX XXXXX ("Xxxxx")
c/o Executive Solutions
00-0 X.X. 00xx Xxxxx, Xx. 000
Xxxxxxxx, Xxxxxx 00000-0000
RECITALS:
X. Xxxxx is a member, and currently serves as Chair, of the Board of
Directors of WHFI (the "Board of Directors");
X. Xxxxx, who owns and operates her own independent management consulting
business, has been providing certain management services to the Board of
Directors over the past year;
X. Xxxxx'x current contract with WHFI expires on October 31, 1996; and
D. WHFI desires to continue to retain Xxxxx as an independent consultant
to provide management services to the Board of Directors;
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, the parties agree as follows:
1. MANAGEMENT SERVICES. WHFI hereby retains Xxxxx as an independent
contractor to provide management services to the Board of Directors, and Xxxxx
hereby agrees to provide such services in accordance with the terms and
conditions set forth herein.
2. TERM. This Agreement shall commence on November 1, 1996 and shall
terminate on the earlier of (i) the date Xxxxx resigns as Chair of the Board of
Directors, (ii) the date Xxxxx is removed as Chair of the Board of Directors,
(iii) the date of Xxxxx'x death, or (iv) April 30, 1998.
3. DUTIES. Xxxxx shall perform the following duties and responsibilities as
an independent consultant to the Board of Directors:
3.1 Xxxxx shall, as Chair of the Board of Directors, preside at all
meetings of the Board of Directors and all meetings of its shareholders. Xxxxx
shall prepare agendas for, and
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convene and conduct, all regular and special meetings of the Board of Directors.
3.2 Xxxxx shall provide leadership to the Board of Directors in reviewing
and deciding upon matters which exert major influence on the manner in which
WHFI's business is conducted.
3.3 Xxxxx shall act in a general advisory capacity, and shall give counsel
to, the CEO and other officers of WHFI on all matters concerning the management
and interests of WHFI. Xxxxx shall review all major corporate activities and
plans with the CEO so as to insure conformity with the Board of Directors' view
on corporate policy.
3.4 Xxxxx shall work to insure regular communication, and facilitate
mutual understanding, between the officers and directors of WHFI.
3.5 Xxxxx shall individually and collectively counsel with members of the
Board of Directors so as to utilize their capacities to the fullest extent
necessary to secure optimum benefits for WHFI.
3.6 Xxxxx shall make nominations to the Board of Directors with respect to
who should serve as members of all committees of the Board of Directors. Xxxxx
shall serve as an ex-officio member of all committees of the Board of Directors
and shall assist the respective Chairs of all committees as necessary and
appropriate. Xxxxx shall serve as Chair of the Executive Committee.
3.7 Xxxxx shall make nominations to the Board of Directors with respect to
who should serve as officers of WHFI.
3.8 Xxxxx shall participate in outside activities which will enhance
WHFI's prestige and fulfill WHFI's public obligations as a member of the
industry and the community.
3.9 Xxxxx shall carry out special assignments in collaboration with the
CEO, and perform such other duties and responsibilities as may be assigned to
her from time to time by the CEO or Board of Directors.
4. COMPENSATION.
4.1 MONTHLY FEE. WHFI shall pay Xxxxx, as compensation for the consulting
services rendered hereunder, a flat monthly fee of $4,083.33, which is the
equivalent of $49,000 per year, payable on the last business day of each
calendar month, commencing November 30, 1996. WHFI and Xxxxx agree that such
flat monthly fee shall be subject to review and adjustment as provided in
Section 4.2 below.
4.2 REVIEW/ADJUSTMENT OF MONTHLY FEE. WHFI and Xxxxx acknowledge that the
flat monthly fee set forth in Section 4.1 above is based on the assumption that
Xxxxx will be expending approximately 350 hours per year in the performance of
her duties hereunder. Xxxxx has been keeping time records over the past six
months, and shall continue to keep time records over the next three months as to
the hours spent in performing her duties hereunder, and provide a copy of such
time records to the Board of Directors. The Board of Directors and Xxxxx shall
review such time records at the Board of Directors meeting in February, 1997 and
shall, in the event they determine, based on such review, that the flat monthly
fee needs to be adjusted,
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mutually adjust the same as appropriate, effective April 1, 1997. Xxxxx shall
not be required to keep time records after said initial three-month period, as
WHFI recognizes and acknowledges that the hours rendered by Xxxxx will fluctuate
from month to month and desire to compensate Xxxxx on a flat monthly fee basis,
rather than requiring Xxxxx to maintain time records throughout the term of this
Agreement and paying her on a hourly basis. In the event the Board of Directors
and Xxxxx are unable to reach mutual agreement at their meeting in February,
1997 as to the adjustment, if any, to the flat monthly fee, then either party
may, notwithstanding any other provision herein to the contrary, terminate this
Agreement, effective April 1, 1997, by sending written notice of termination to
the other.
5. STOCK OPTIONS.
5.1 AUTOMATIC GRANT OF DIRECTOR STOCK OPTIONS. Pursuant to the provisions
of Section 4 of the WHFI 1992 First Amended and Restated Combination Stock
Option Plan, Xxxxx shall receive, so long as she remains a member of the Board
of Directors of WHFI and does not become an employee of WHFI, an automatic grant
of a nonstatutory stock option each year, as of the date of WHFI's annual
meeting of shareholders, to purchase 3,000 shares of common stock of WHFI.
5.2 IMMEDIATE GRANT OF ADDITIONAL STOCK OPTIONS. WHFI shall xxxxx Xxxxx a
nonstatutory stock option under the WHFI 1992 First Amended and Restated
Combination Stock Option Plan, effective as of the date of mutual execution of
this Agreement, to purchase 7,500 shares of common stock of WHFI. The exercise
price of such option shall be the fair market of the common stock of WHFI on the
last trading date immediately preceding November 1, 1996. Such option shall vest
and become fully exercisable six months after the date of grant. The terms and
conditions of such option are set forth in the Nonstatutory Stock Option
Agreement attached hereto as Exhibit A, which the parties shall execute
simultaneously herewith.
5.3 FUTURE CONTINGENT GRANT OF STOCK OPTION. WHFI shall, subject to the
review and approval of the Executive Personnel and Compensation Committee of the
Board of Directors, xxxxx Xxxxx a nonstatutory stock option under the WHFI 1992
First Amended and Restated Combination Stock Option Plan on November 1, 1997 to
purchase 7,500 shares of the common stock of WHFI, provided Xxxxx is still
serving as Chair of the Board of Directors, and this Agreement is still in
effect, on November 1, 1997. The exercise price of such option shall be the
fair market of the common stock of WHFI on the last trading date immediately
preceding November 1, 1997. Such option shall vest and become fully exercisable
six months after the date of grant. The terms and conditions of such option
shall be substantially the same as those set forth in the Nonstatutory Stock
Option Agreement attached hereto as Exhibit A.
6. INDEPENDENT CONTRACTOR RELATIONSHIP.
6.1 Notwithstanding anything express or implied herein to the contrary,
the parties acknowledge and agree that Xxxxx is acting as an independent
contractor, and for all purposes shall be deemed to be an independent contractor
within the meaning of the Internal Revenue Code of 1986, as now in effect or as
may hereafter be amended, in providing the management consulting services under
this Agreement.
6.2 Xxxxx accepts full and complete responsibility for filing all tax
returns and paying all taxes which may be required or due for compensation
received from WHFI under the terms of
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this Agreement, including by way of illustration but not limitation, all federal
and state income taxes, Social Security taxes, unemployment insurance taxes, and
any and all other taxes required by law.
6.3 Xxxxx represents and warrants to WHFI that she is regularly engaged in
the business of providing management consulting services. Xxxxx shall
determine, and shall be in sole control of, the methods, details and means used
in providing the management consulting services under this Agreement. Xxxxx
shall choose the time and manner for performing such services according to her
own routines and schedules, independent from WHFI's business operations.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This document is the entire, final and complete
Agreement and understanding of the parties with respect to the subject matter
hereof, and supersedes and replaces all written and oral agreements and
understandings heretofore made or existing by and between the parties or their
representatives with respect thereto.
7.2 WAIVER. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
7.3 BINDING EFFECT. All rights, remedies and liabilities herein given to
or imposed upon the parties shall extend to, inure to the benefit of and bind,
as the circumstances may require, the parties and their respective heirs,
personal representatives, administrators and successors.
7.4 NOTICES. Any notice of other communication required or permitted
under this Agreement shall be in writing and shall be deemed given on the date
of transmission when sent by telex or facsimile transmission, on the third
business day after the date of mailing when mailed by certified mail, postage
prepaid, return receipt requested, from within the United States, or on the date
of actual delivery, whichever is the earliest, and shall be sent to the parties
at the addresses shown on the first page of this Agreement, or at such other
address as either party may hereafter designate by written notice to the other.
7.5 AMENDMENT. No supplement, modification or amendment to this Agreement
shall be valid, unless the same is in writing and signed by all parties hereto.
7.6 SEVERABILITY. In the event any provision or portion of this Agreement
is held to be unenforceable or invalid by any court of competent jurisdiction,
the remainder of this Agreement shall remain in full force and effect and shall
in no way be affected or invalidated thereby.
7.7 ATTORNEY'S FEES. In the event any suit, action or other legal
proceeding shall be instituted to declare or enforce any right created by this
Agreement, or by reason of any breach of this Agreement, the prevailing party
shall be entitled to recover reasonable attorney fees as fixed by the trial
court and all appellate courts.
7.8 GOVERNING LAW. This Agreement, and its formation, operation and
performance, shall be governed, construed and enforced in accordance with the
laws of the State of Oregon, without regard to its conflict of law principles.
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IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
on December ___, 1996, retroactively effective November 1, 1996.
WHOLESOME & HEARTY FOODS, INC., an
Oregon corporation
By:
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E. Xxx Xxxxx
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