CONSULTING AGREEMENT
Exhibit 10.37
The X. X. XXXXXXX COMPANY, an Ohio corporation with its principal place of business at
Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 (“JMS”), and Xxxx X. Xxxxxx, 0000 Xxxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (“Consultant”), hereby agree as follows:
1. Recitals. Consultant has substantial experience and knowledge relating to JMS’s
business, and specifically, its Canadian, Foodservice, Beverage and International operations (the
“Special Markets Group”), as well as business integration matters generally. Because of
Consultant’s experience, JMS desires to engage him on a consulting basis to provide advice in these
areas. Consultant is agreeable to providing those services, and it is the purpose of this
Agreement to set forth the terms and conditions upon which those services will be rendered.
2. Retention and Description of Services. JMS retains Consultant to furnish JMS with
Consultant’s unique expertise, advice, consulting and personal services in connection with special
projects relating to the Special Markets Group or general business integration matters, in each
case, consistent with the terms of this Agreement (“Consulting Services”). The Consultant will
provide Consulting Services to JMS on an as needed basis during the Term. The actual Consulting
Services to be provided by Consultant will be as designated by: (i) the Chairman or President of
JMS or (ii) any other person designated by the Board of Directors. Consultant shall perform all
Consulting Services on behalf of JMS in a timely, diligent and professional manner in accordance
with the highest commercial industry standards.
3. Term of Agreement. This Agreement commences as of September 1, 2006 and
will terminate on August 31, 2007 (the “Term”).
4. Place of Performance. It is understood and agreed by JMS and Consultant that the
nature of the services to be rendered under this Agreement by Consultant may necessitate a
reasonable amount of travel by him and attendance by him at meetings with JMS personnel and others
that may be located at various locations in the United States.
5. Compensation. On or before August 31, 2006, JMS will pay Consultant a lump sum fee
of One Hundred Thousand and no/100 Dollars ($100,000) for his services under this Agreement.
6. Reimbursement of Expenses. JMS will reimburse Consultant for all reasonable and
necessary out-of-pocket expenses incurred by Consultant in connection with the rendition of
services under this Agreement with regard to specific, preapproved activities, including, but not
limited to, expenses of travel (other than the cost of travel between Consultant’s home and office,
if any). Reimbursement of expenses hereunder shall be on a basis consistent with JMS’s standard
corporate expense and travel policies, including, but not limited to, the required use of JMS’s
designated travel agency for all travel. Consultant understands that expenses to be reimbursed by
JMS under this Agreement will not include costs and expenses that would be considered normally
incident to the conduct by Consultant of his business. Any and all reimbursement of expenses
hereunder will be made solely on the basis of itemized statements submitted by Consultant to JMS’s
Corporate Controller, including actual bills, receipts, or other
evidence of expenditures, in accordance with JMS’s corporate policies.
7. Consultant an Independent Contractor. Consultant will furnish services hereunder
as an independent contractor and not as an employee or agent of JMS or of any company affiliated
with JMS. Consultant shall have no power or authority to act on behalf of, represent, or bind JMS
or any company affiliated with JMS in any manner. Consultant is not entitled to any medical
coverage, life insurance, participation in any benefit plan, or any other benefits generally
accorded to employees of JMS or its affiliates.
8. No Conflicting Activities. Consultant covenants that during the term of this
Agreement, he will not, either directly or indirectly, himself or through any affiliate, carry on,
or be engaged in, concerned with, or interested in, in any manner whatsoever, the development or
marketing of fruit spreads, peanut butter, baking mixes, toppings, beverages, or other products
produced or distributed by JMS anywhere in the United States or Canada (except for an equity share
investment in a public company whose shares are listed on a stock exchange or in an
over-the-counter market where such share investment does not in the aggregate exceed five percent
of the issued equity shares of such company), or represent, manufacture for, or distribute such
products for any person who does so manufacture or market. Consultant agrees that any breach of
this covenant will result in JMS’s suffering a loss which cannot adequately be compensated for in
damages and that JMS will be entitled to injunctive or other equitable relief.
9. Confidentiality and Nondisclosure. Consultant hereby specifically agrees to be
bound by the nondisclosure provisions set forth in EXHIBIT “A” attached hereto and
incorporated herein by reference.
10. Restrictions on Use of Inside Information. In the course of the performance of
his duties under this Agreement, it is expected that Consultant may receive information that is
considered material inside information within the meaning and intent of the securities laws of the
United States. Consultant will not disclose this information to others except as authorized by JMS
and will not use such information directly or indirectly for his own benefit or as a basis for
advice to any other party concerning any decision to buy, sell, or otherwise deal in the stock of
JMS.
11. Survival of Obligations. The obligations of Consultant under paragraphs 9 and 10
above shall survive termination of this Agreement.
12. Default; Termination. If either party fails to fulfill any of its obligations
under this Agreement, that shall constitute default. In the event of a default by any party that
is not cured within 30 days of notice thereof to the defaulting party, the party not in default may
terminate this Agreement effective immediately upon notice to the defaulting party.
13. Notices. Notices under this Agreement shall be given by certified or registered
mail, postage prepaid, return receipt requested, or by hand delivery, addressed in either case to
the address for the party set forth above or to such other address as may be provided for in a
notice given as provided in this paragraph 13. Notices under this paragraph 13 shall be deemed
given upon receipt.
14. Entire Agreement. This Agreement, together with EXHIBIT “A” attached,
constitutes the entire agreement and understanding between the parties and supersedes all prior
agreements and understandings between them with respect to its subject matter. It may
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not be modified or assigned without the express permission of both parties in a writing referring
to this Agreement.
15. Severability. The invalidity or unenforceability of any portion of this Agreement
shall not affect the validity, force, or effect of the remaining portions hereof. If it is ever
held that any restriction hereunder is too broad to permit enforcement of such restriction to its
fullest extent, each party agrees that a court of competent jurisdiction may enforce such
restriction to the maximum extent permitted by law, and each party hereby consents and agrees that
such scope may be judicially modified accordingly in any proceeding brought to enforce such
restriction.
16. Governing Law. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Ohio, without reference to choice of law principles.
Dated: August 31, 2006
| The X. X. XXXXXXX COMPANY |
CONSULTANT | |||
By:
|
/s/ Xxxxxxx X. Xxxxxxx | /s/ Xxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxxx President and Co-Chief Executive Officer |
Xxxx X. Xxxxxx | |||
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EXHIBIT “A”
NONDISCLOSURE PROVISIONS
1. Nondisclosure Obligation. Consultant shall hold in confidence and not
disclose to third parties, or make commercial or other use of, any trade secrets or other
information that he may have received during his employment with JMS and/or its subsidiaries or
that he may receive or acquire from JMS during the term of the Consulting Agreement concerning
JMS’s products, equipment, processes, designs, packaging, methods of distribution, capabilities,
systems, technology, specifications, data, operating instructions, customers, marketing and sales,
business plans, or any other private matters, whether or not related to the project in which it is
involved (all such information shall be referred to below as the “Confidential Information” without
JMS’s prior written permission.
2. Ownership of Materials. Any and all tangible representations of the Confidential
Information, including but not limited to any and all lists, notes, memoranda, schedules, data
sheets, written formulae, drawings, diagrams, blueprints, still or moving photographic or video
pictures, models, machinery, equipment, and packaging, provided to or obtained by Consultant
directly or indirectly by or from JMS, or developed by the Consultant during the term of the
Consulting Agreement, and all copies thereof are and shall be the exclusive property of JMS and
must be returned to JMS upon the first to occur of a specific request therefor by JMS or the
termination of the Consulting Agreement.
3. Limits on Nondisclosure Agreement. Nothing herein contained shall deprive
Consultant of the right:
A. to use any information which is now generally known to the trade or the public or
to use any other information from and after the time it becomes so known as long as it
becomes so known through no fault of Consultant; and
B. to use any information received by Consultant lawfully and in good faith from a
third party who is under no obligation with regard thereto to JMS, either directly or
indirectly.
4. No Other Rights. The Confidential Information shall remain the exclusive property
of JMS, and no license of or other right to utilize the Confidential Information or any patent,
trademark, invention, copyright or other intellectual property of JMS, either express or implied,
is conveyed or shall be deemed to have been conveyed hereby. Insofar as Consultant’s participation
in projects under the Consulting Agreement results in improvements or modifications to JMS’s
processes or products, such improvements or modifications shall be the property solely of JMS.
Consultant hereby waives any and all claims to and transfers, assigns, and conveys any and all
right, title, and interest in and to any Confidential Information. Without limiting the foregoing,
Consultant transfers, assigns, and conveys to JMS any and all patent rights, including patent
applications, which may result from projects on which it is involved under the Consulting
Agreement. Consultant will cooperate with JMS as it may require to assist it in obtaining,
defending, or enforcing any patent rights relating to or resulting from such projects worldwide and
will execute any papers necessary to effect such patent rights.
5. Damages. Consultant recognizes the competitive value and confidential nature of
the Confidential Information and that any breach or threatened breach of these nondisclosure
provisions by Consultant may cause JMS irreparable injury for which monetary damages may be an
inadequate remedy. Therefore, Consultant agrees that, in addition to any monetary damages to which
it may be entitled, JMS shall be entitled to temporary and permanent injunctions restraining such
breach or threatened breach.
6. Survival of Provisions. These nondisclosure provisions generally will expire two
years after the expiration of the Consulting Agreement; provided, however, that Consultant’s
obligations hereunder will continue in effect with respect to individual items of Confidential
Information for as long as those items remain confidential.
