CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made this 1st day of March 2001, by and
between PINNACLE FOODS, INC., a Pennsylvania corporation (hereinafter called
"Company") and XXXXX X. XXXXX, an individual (hereinafter called "Consultant").
W I T N E S S E T H:
Company wishes to engage Consultant and Consultant wishes to consult with
Company on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Consultant agree as follows:
1. Engagement. Company hereby engages Consultant and Consultant hereby
accepts engagement by Company as a consultant for the period and upon the terms
and conditions contained in this Agreement.
2. Duties.
(a) Consultant shall serve Company as a general business consultant on
all matters affecting the operations and capitalization of the Company and shall
have such authority and such responsibilities as Company reasonably may
determine from time to time. Consultant shall perform any other duties
reasonably required by Company.
(b) Throughout the term of this Agreement, Consultant shall devote not
less than one hundred (100) hours per month of working time and his energy,
skill and best efforts to the performance of his duties hereunder in a manner
which will faithfully and diligently further the business and interests of
Company. The parties acknowledge that Consultant shall be free, except as
otherwise limited hereby, to engage in any other business of his choice.
3. Term. This Agreement shall be for a term of five (5) years, commencing
on March 1, 2001, and ending on February 28, 2006, unless sooner terminated as
hereinafter provided. Unless either party elects to terminate this Agreement at
the end of the original or any renewal term by giving the other party notice of
such election at least ninety (90) days before the expiration of the then
current term, this Agreement shall be deemed to have been renewed for an
additional term of one (1) year commencing on the day after the expiration of
the then current term.
4. Compensation. For all of the services rendered and to be rendered by
Consultant to Company, Consultant shall receive an annual compensation of One
Hundred Fifty Thousand Dollars ($150,000), payable in reasonable periodic
installments in accordance with Company's regular disbursement practices in
effect from time to time. If and to the extent that
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the Company believes it is necessary or appropriate, Company shall withhold from
payments owed to Consultant hereunder and any and all necessary payroll and wage
taxes.
5. Expenses. Company will reimburse Consultant for all reasonable expenses
incurred by Consultant in connection with the performance of Consultant's duties
hereunder upon receipt of vouchers therefor and in accordance with Company's
regular reimbursement procedures and practices in effect from time to time.
6. Death. If Consultant dies, all payments hereunder shall cease at the end
of the month in which Consultant's death shall occur and Company shall have no
further obligations or liabilities hereunder to Consultant's estate or legal
representative or otherwise.
7. Termination for Cause. Company may terminate this Agreement at any time
for the conviction of a crime related to Consultant's engagement hereunder,
repeated intoxication, drug addiction, any violation of any reasonable rule or
regulation established by Company from time to time regarding the conduct of its
business and communicated to Consultant in writing, or any material violation by
Consultant of the terms of this Agreement, in which event Company shall have no
further obligations or liabilities hereunder after the date of such termination.
8. Company Property. All advertising, sales, manufacturers' and other
materials or articles or information, including without limitation data
processing reports, customer sales analyses, invoices, price lists or
information, samples, budgets, business plans, strategic plans, financing
applications, reports, memoranda, correspondence, financial statements, and any
other materials or data of any kind furnished to Consultant by Company or
developed by Consultant on behalf of Company or at Company's direction or for
Company's use or otherwise in connection with Consultant's engagement hereunder,
are and shall remain the sole and confidential property of Company; if Company
requests the return of any such materials at any time during or at or after the
termination of Consultant's engagement hereunder, Consultant shall immediately
deliver the same to Company.
9. Noncompetition, Trade Secrets, Etc.
(a) During the term of this Agreement and for a period of one year
after the termination of his engagement with Company for any reason whatsoever,
Consultant shall not, directly or indirectly, induce or attempt to influence any
employee or consultant of Company to terminate his employment or consultancy
with Company and shall not engage in (as a principal, partner, director,
officer, agent, employee, consultant or otherwise) or be financially interested
in any business operating within the states of Maryland, Virginia, Delaware,
Pennsylvania, New Jersey, New York, Connecticut or Massachusetts, which is
involved in business activities which are the same as, similar to, or in
competition with business activities carried on by Company, at the time of the
termination of Consultant's engagement hereunder. However, nothing contained in
this Paragraph 9 shall prevent Consultant from holding for investment no more
than five percent (5%) of any class of equity securities of a company whose
securities are traded on a national securities exchange or on the NASDAQ System.
(b) During the term of this Agreement and at all times thereafter,
Consultant shall not use for his personal benefit, or disclose, communicate or
divulge to, or use for the direct
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or indirect benefit of any person, firm, association or company other than the
Company, any material referred to in Paragraph 8 or any information regarding
the business methods, business policies, procedures, techniques, research or
development projects or results, trade secrets, or other knowledge or processes
of or developed by the Company or any names and addresses of customers or
clients, any data on or relating to past, present or prospective customers or
clients, or any other confidential information relating to or dealing with the
business operations or activities of Company, made known to Consultant or
learned or acquired by Consultant while consulting for the Company.
(c) Any and all reports, plans, budgets, writings, inventions,
improvements, processes, procedures and/or techniques which Consultant may make,
conceive, discover or develop, either solely or jointly with any other person or
persons, at any time during the term of this Agreement, whether during working
hours or at any other time and whether at the request or upon the suggestion of
the Company or otherwise, which relate to or are useful in connection with any
business now or hereafter carried on by the Company, including developments or
expansions of its present fields of operations, shall be the sole and exclusive
property of Company. Consultant shall make full disclosure to Company of all
such reports, plans, budgets, writings, inventions, improvements, processes,
procedures and techniques, and shall do everything reasonably necessary or
desirable at Company's cost and expense to vest the absolute title thereto in
Company. Consultant shall write and prepare all specifications and procedures
regarding such inventions, improvements, processes, procedures and techniques
and otherwise aid and assist Company so that Company can prepare and present
applications for copyright or Letters Patent therefor and can secure such
copyright or Letters Patent wherever possible, as well as reissues, renewals,
and extensions thereof, and can obtain the record title to such copyright or
patents so that Company shall be the sole and absolute owner thereof in all
countries in which it may desire to have copyright or patent protection.
Consultant shall not be entitled to any additional or special compensation or
reimbursement regarding any and all such writings, inventions, improvements,
processes, procedures and techniques.
(d) Consultant acknowledges that the restrictions contained in the
foregoing subparagraphs (a), (b) and (c) of this Paragraph 9, in view of the
nature of the business in which Company is engaged, are reasonable and necessary
in order to protect the legitimate interests of Company, and that any violation
thereof would result in irreparable injuries to Company, and Consultant
therefore acknowledges that, in the event of his violation of any of these
restrictions, Company shall be entitled to obtain from any court of competent
jurisdiction preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits and other benefits arising from
such violation, which rights shall be cumulative and in addition to any other
rights or remedies to which Company may be entitled.
(e) If the period of time or the area specified in subparagraph (a)
above should be adjudged unreasonable in any proceeding, then the period of time
shall be reduced by such number of months or the area shall be reduced by the
elimination of such portion thereof or both so that such restrictions may be
enforced in such area and for such time as is adjudged to be reasonable. If
Consultant violates any of the restrictions contained in such subparagraph (a),
the restrictive period shall not run in favor of Consultant from the time of the
commencement of any
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such violation until such time as such violation shall be cured by Consultant to
the reasonable satisfaction of Company.
10. Prior Agreements. Consultant represents to Company (a) that there are
no restrictions, agreements or understandings whatsoever to which Consultant is
a party which would prevent or make unlawful his execution of this Agreement or
his engagement hereunder, (b) that his execution of this Agreement and his
engagement hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which he is a party or by which he is bound
and (c) that he is free and able to execute this Agreement.
11. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same, or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict-of-laws doctrines of any jurisdiction to the
contrary, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such FedEx or by other messenger) against
receipt or upon actual receipt of registered or certified mail, postage prepaid,
return receipt requested, addressed as set forth below:
(i) If to Company:
Pinnacle Foods, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
(ii) If to Consultant:
Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx, Xx. 000 X
Xxxxxxxx, XX 00000
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In addition, notice by mail shall be sent by courier service such as FedEx if
sent from a location outside of the continental United States. Either party may
alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this
subparagraph (c) for the giving of notice.
(d) Binding Nature of Agreement; No Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns, except that
neither party may assign or transfer its rights nor delegate its obligations
under this Agreement without the prior written consent of the other party
hereto.
(e) Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original as against either
party whose signature appears thereon, and both of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of both of the parties reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
(h) Paragraph Headings. The Paragraph and subparagraph headings in
this Agreement have been inserted for convenience of reference only; they form
no part of this Agreement and shall not affect its interpretation.
(i) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(j) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
Holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or Holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or Holiday. For purposes of this Agreement,
the term "Holiday" shall mean a day, other than a Saturday or Sunday, on which
national banks with branches in the Commonwealth of Pennsylvania are or may
elect to be closed.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
PINNACLE FOODS, INC.
By:
-----------------------------------------
Xxxxxxx Xxxxx, President
-----------------------------------(SEAL)
Xxxxx X. Xxxxx
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