Exhibit 10.2
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated and effective as of May 1, 1997, by and
between INTERNATIONAL MULTIFOODS CORPORATION, a Delaware corporation
("Multifoods"), and RFM Enterprises, Inc. an Illinois corporation
("Contractor"), hereinafter referred to as "the Agreement" or "this
Agreement".
WITNESSETH THAT:
WHEREAS, Contractor is engaged in the business of providing executive
compensation and human resources consulting services to business
organizations; and
WHEREAS, Multifoods wishes to avail itself of the experience and skill of
Contractor during the consulting period hereinafter described.
NOW, THEREFORE, in consideration of the preceding recitals and of the
mutual covenants and agreements set forth in this Agreement, Multifoods and
Contractor agree, as follows:
1. Term and Scope of Consulting Services.
A. Consulting Period.
Multifoods agrees to retain Contractor as a consultant to Multifoods,
and Contractor agrees to serve as a consultant to Multifoods, for a period of
two (2) years commencing on the date of this Agreement (the "Consulting
Period"), provided, that either Multifoods or Contractor shall have the right
at any time during the Consulting Period, after the "First Six Months" (as
that term is hereinafter defined) to terminate and cancel this Agreement upon
at least ninety (90) days prior written notice given to the other party in
accordance with notice provision contained in Section 11 of this Agreement.
Contractor shall make Xxxxxx X. Xxxxxxxx available to provide "Consulting
Services" (as that term is hereinafter defined), to Multifoods:
(i) during the period May 1, 1997 to November 1, 1997 (the "First
Six Months"), for not less than eighty (80) days and not more than ninety (90)
days during such period of time;
(ii) during the period November 1, 1997 to April 30, 1998 (the
"Second Six Months"), for not less than thirty (35) days and not more than
forty (40) days during such period; and
(iii) during the period May 1, 1998 to April 30, 1999 (the "Second
Year"), for not less than eighty (80) days and not more than ninety (90) days
during such period.
As used herein, a calendar day shall mean not less than five and not
more than eight hours during any twenty-four hour period.
B. Consulting Services.
The Consulting Services to be performed by Contractor shall include
corporate level organization, executive and compensation services as may be
requested and specified by the Chairman of the Board, President and Chief
Executive Officer of Multifoods, the Chairman of the Compensation Committee or
the Chairman of the Nominating and Corporate Governance Committee of the Board
of Directors of Multifoods (collectively the "Consulting Services").
C. Contractor's Other Activities.
Multifoods acknowledges and agrees that Contractor has the right
during the Consulting Period to pursue his personal, business and investment
interests so long as they are not in conflict with Contractor's duties and
obligations under this Agreement.
2. Compensation and Travel Expenses Payable by Multifoods to Contractor.
A. Compensation for Consulting Services.
As compensation for the Consulting Services to be rendered by
Contractor to Multifoods during the Consulting Period, Multifoods shall pay to
Contractor:
(i) for the First Six Months and the Second Six Months of the
Consulting Period, an aggregate amount of One Hundred and Thirty Thousand
Dollars ($130,000) in consecutive quarterly installments of (a) $40,000 each,
on the first day of May and August, 1997, (b) $30,000 on the first day of
November, 1997, and (c) $30,000 on the first day of February, 1998; and
(ii) for the Second Year, an aggregate amount of Eighty Thousand
Dollars ($80,000) in equal consecutive quarterly installments of $20,000 each,
on the first day of May, August and November, 1998, and on the first day of
February, 1999.
Multifoods will report the payment of compensation paid to Contractor
for Consulting Services rendered by Contractor to Multifoods under this
Agreement on Form No. 1099, or such other form as may be prescribed by
applicable federal, state and local tax authorities. If either Multifoods or
Contractor should exercise its right to terminate the Consulting Period at any
time during the Consulting Period as provided in Section 1A of this Agreement,
the compensation due and payable to Contractor for such calendar quarter shall
be prorated by the number of days elapsed in the quarter to the effective date
of termination
B. Travel Expenses of Contractor During Performance of Consulting Services.
If Contractor is requested to travel by Multifoods to perform Consulting
Services during the Consulting Period, Multifoods will reimburse Contractor on
a basis that is consistent with Multifoods' travel polices for its employees
in effect at such time, for the reasonable travel and travel related expenses,
reasonably incurred by Contractor solely and exclusively with respect to
Contractor's performance of the Consulting Services requested by Multifoods
during the Consulting Period. Contractor shall provide Multifoods with
receipts and other evidence reasonably requested by Multifoods to substantiate
any such travel and travel related expenses incurred by Contractor while on
assignment for Multifoods as provided hereunder. All of the Contractor's
travel and travel related expenses shall be subject to the approval of the
Chairman of the Board, President and Chief Executive Officer of Multifoods, or
his designee. Multifoods shall reimburse Contractor for all such approved
travel and travel related expenses submitted by Contractor, within thirty (30)
days following the date of Multifoods receipt of Contractors' invoice for such
reimbursement and supporting documentation.
C. Office Space, Office Services and Parking Space.
During the Consulting Period, Multifoods shall provide Contractor with
the use of an office, free of charge, for Contractor's use in connection with
the performance of the Consulting Services, in the headquarters office of
Multifoods, and secretarial services, free of charge, in connection with the
performance by Contractor of the Consulting Services. Also, during the
Consulting Period, Multifoods shall provide Contractor the use of a parking
space, free of charge, in the garage facility used by the executive officers
of Multifoods who office in Multifoods headquarters office, to the extent that
such parking perquisite is made available to the Multifoods' executive
officers.
D. Change of Control.
As used in this Agreement, the term "Change of Control" shall have the
same meaning that term has in the form of Severance Agreement adopted by the
Board of Directors of Multifoods at a meeting of the Board of Directors on
September 17, 1993, as the same may be amended from time-to-time.
Notwithstanding any term or provision in this Agreement to the contrary, if
during the Consulting Period a Change of Control should occur, and unless
otherwise agreed by the parties in writing, this Agreement shall terminate
effective upon the effective date of the Change of Control, and in such event
an amount equal to the unpaid quarterly installments of compensation described
in Paragraph A of this Section 2, shall be paid to Contractor within thirty
(30) days following the effective date of the Change of Control.
3. Contractor's Covenants Not to Compete and Confidentiality.
A. Contractor's Covenant Not to Compete.
During the Consulting Period, Contractor and its principal
shareholder, Xxxxxx X. Xxxxxxxx ("Xxxxxxxx"), subscribing to this Agreement on
the signature page hereof, will refrain from carrying on, either directly or
indirectly (whether as a principal, agent, investor, employee, employer,
consultant, shareholder, partner or in any other individual or representative
capacity whatsoever), anywhere in the United States of America, or its
territories and possessions, and Canada, any business which competes with any
of the businesses conducted by Multifoods and its subsidiaries which are
described in Multifoods' Annual Report on Form 10-K for the fiscal year ended
on February 28, 1997. An investment by Contractor or Xxxxxxxx of not more
than one percent (1%) of all the issued and outstanding capital stock of a
corporation which is publicly traded on a national stock exchange, shall not
violate Contractor's and Xxxxxxxx' non-competition covenant set forth herein.
B. Contractor's Covenant of Confidentiality.
Further, during the Consulting Period and thereafter, Contractor and
Xxxxxxxx covenant and agree with Multifoods that each of them will maintain in
strict confidence and not disclose to any corporation, partnership, or other
entity or person, any information including, without limitation, financial
information, customer names or lists of customers, or business plans of
Multifoods, or any of Multifoods' subsidiaries or affiliates, or any
proprietary information of Multifoods or any subsidiary or affiliate of
Multifoods, to which Contractor or Xxxxxxxx had access to or knowledge of
prior to the date of this Agreement, or to which Contractor or Xxxxxxxx may
have access to or knowledge of in the performance of Contractor's obligations
under this Agreement ("Confidential Information"). As used in this paragraph,
Confidential Information shall not include any information: (i) which was
generally known to the public on the date of this Agreement; (ii) which
becomes known to the public following the date of this Agreement through no
fault of Contractor or any of its directors, officers, employees and agents;
or (iii) which is disclosed to Contractor or Xxxxxxxx by a third party who has
the right to disclose such information without violating any agreement of
confidentiality with Multifoods.
C. Remedies.
Contractor and Xxxxxxxx agree that in the event there is a breach or
threatened breach by Contractor or Xxxxxxxx of Contractor's or Xxxxxxxx'
covenant not to compete and Contractor's and Xxxxxxxx' covenant of
confidentiality described in Paragraphs A and B of this Section 3, Multifoods
shall have the right, in addition to all legal remedies available to it, to
specific performance or other equitable remedy for any breach or threatened
breach by Contractor or Xxxxxxxx of their covenants of non-competition and
confidentiality set forth in Paragraphs A and B of this Section 3.
4. Independent Contractor.
The parties acknowledge that Contractor shall perform its duties under
this Agreement as an independent contractor and that this Agreement is not
intended nor shall this Agreement be deemed to create an employment
relationship or any other relationship between Multifoods and Contractor and
Contractor's employees, other than that of independent contractor. Contractor
and its employees shall at all times be free to exercise its and their own
initiative, judgment and discretion as to how best to perform or provide the
Consulting Services. Since Contractor is an independent contractor Multifoods
shall not withhold any federal, state or local income taxes related to the
compensation paid to Contractor. Contractor agrees that it shall report such
compensation to taxing authorities and pay all federal, state and local taxes
payable by Contractor in a manner consistent with its status as an independent
contractor. Contractor further agrees to indemnify and hold Multifoods
harmless and free from and against any tax, penalty and interest which
Multifoods may be held liable to pay any governmental authority by reason of
Contractor's breach of its obligation to pay its taxes on the compensation
paid by Multifoods hereunder for Consulting Services.
5. Indemnification
In the event that Contractor and/or Xxxxxxxx become involved in any legal
action or proceeding as a result of advice and counsel provided by Contractor
pursuant to this Agreement, Multifoods will indemnify Contractor and Xxxxxxxx
against all claims, demands, actions, lawsuits and liabilities, and all
reasonable attorneys' fees and disbursements, made against or incurred by
Contractor and Xxxxxxxx, except to the extent that any such claim, demand,
action, lawsuit or liability resulted from the willful misconduct or gross
negligence of Contractor or Xxxxxxxx.
6. No Waiver.
The waiver by Multifoods or Contractor of a breach by Multifoods or
Contractor, as applicable, of any provision of this Agreement, shall not
operate or be construed as a waiver of any subsequent breach by Multifoods or
Contractor, as applicable.
7. Successors and Assigns.
The rights and obligations of Contractor under this Agreement shall not
be assignable, transferable or delegable in whole or in part by Contractor.
This Agreement is binding upon the successors and assigns of Multifoods.
8. Governing Law.
This Agreement is a Minnesota contract and shall be governed by and
interpreted under the laws of the State of Minnesota.
9. Severability.
If any provision of this Agreement or the application of any such
provision to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
10. Entire Agreement.
This Agreement contains the entire agreement of Multifoods and Contractor
with respect to the subject matter of this Agreement, and may only be amended
by an agreement in writing executed and delivered by a duly authorized officer
of Contractor and an executive officer of Multifoods.
11. Notices.
All notices and other communications provided for in this Agreement must
be in writing and shall be sent by prepaid and certified mail, telecopied or
delivered, as to each party hereto, at its address sent forth below, or at
such other address designated by such party in a written notice to the other
party. Any such notice or other communication so given or made shall be
deemed to have been given, made and received on the day of actual receipt if
mailed or delivered, on the same day as telecopying if telecopied.
If to Multifoods:
Xxxx X. Xxxxxxx, Chairman of the Board, President
and Chief Executive Officer
International Multifoods Corporation
Multifoods Tower - Box 2942
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
FAX NO.: (000) 000-0000
with copy to:
Xxxxx X. Xxxxxxx, Vice President, General Counsel
and Secretary
International Multifoods Corporation
Same address and FAX NO. as above; and
If to RFM Enterprises, Inc.:
Xxxxxx X. Xxxxxxxx, President
Ocean Village - CAT II 7421
0000 X. Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Tel. (000) 000-0000
IN WITNESS WHEREOF, Multifoods and Contractor have executed and delivered this
Agreement as of the day and year first above written.
INTERNATIONAL MULTIFOODS CORPORATION
WITNESS:
/s/ Xxxxx X. Xxxxxxx By:/s/ Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx Xxxx X. Xxxxxxx, Chairman of the Board,
Secretary President and Chief Executive Officer
RFM Enterprises, Inc.
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxxx By:/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
Agreement
Xxxxxx X. Xxxxxxxx, in his individual capacity and not as a shareholder,
director, employee or affiliate of RFM Enterprises, Inc., in consideration of
the execution and delivery of this Agreement by Multifoods, does hereby agree
to be bound by and perform the covenants and agreement set forth in Paragraphs
A, B and C of Section 3 of this Agreement.
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
