CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of the first day of September, 1996
(hereinafter referred to as the "Agreement" or this "Agreement"), by and
between INTERNATIONAL MULTIFOODS CORPORATION, a Delaware corporation
("Multifoods"), having its principal offices at Multifoods Tower, 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, and XXXXXXX
ASSOCIATES, INC., a Minnesota corporation ("Consultant"), having its
principal offices at Suite No. 404, Edina Executive Plaza, 0000 Xxxxxxx
Xxxx, Xxxxx, Xxxxxxxxx 00000.
WITNESSETH THAT:
WHEREAS, Consultant is engaged in the business of providing
consulting services; and
WHEREAS, Multifoods wishes to avail itself of the experience and
skill of Consultant 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 Consultant agree, as follows:
1. Term and Scope of Consulting Services.
A. Consulting Period.
Multifoods agrees to retain Consultant as a consultant to
serve Multifoods, and Consultant agrees to serve as a consultant to
Multifoods, for a period of one (1) year, commencing on the date of this
Agreement and ending at midnight on August 31, 1997 (the "Consulting
Period"). At the request of Multifoods during the Consulting Period,
and in consideration of the compensation for the Consulting Services
described in Section 2 of this Agreement, Consultant shall make itself
available to provide the "Consulting Services" (hereinafter described),
for twenty-five calendar days during the Consulting Period pursuant to a
schedule mutually agreed to by Multifoods and Consultant. Consultant
also agrees to assign and cause Xxxx X. Xxxxxxx, President of
Consultant, to provide the Consulting Services to Multifoods during the
Consulting Period. For purposes of this Agreement, a calendar day shall
be any day Monday through Friday of any calendar week, exclusive of
national holidays, and at least five hours per calendar day.
B. Consulting Services.
Consultant shall provide advice and counsel to Multifoods'
management in connection with any projects which may be assigned to
Consultant by the Chairman of the Board and Chief Executive Officer or
the Executive Vice President of the Corporation from time-to-time during
the Consulting Period (the "Consulting Services").
C. Representation of Consultant.
Consultant represents and warrants to Multifoods that in providing
the Consulting Services to Multifoods, neither Consultant nor any of
Consultant's employees or agents will disclose to Multifoods any
confidential or proprietary information of any third party. As used in
this Paragraph C, confidential information shall not include any
information: (i) which was known to the public on the date of this
Agreement; (ii) which becomes known to the public following the date of
this Agreement; or (iii) which is disclosed to Multifoods by the owner
of such confidential information or by such other third party who has
the right to disclose such information to Multifoods without violating
any agreement of confidentiality with the owner of such confidential
information.
2. Compensation and Expenses Payable by Multifoods to Consultant.
A. Compensation for Consulting Services.
As compensation for the twenty-five (25) calendar days of
Consulting Services which Consultant has agreed to render to Multifoods
during the Consulting Period, Multifoods shall pay to Consultant a fee
of Fifty Thousand Dollars ($50,000), in United States Dollars, in five
installments of Ten Thousand Dollars ($10,000) each, on September 1,
1996, October 1, 1996, November 1, 1996, December 1, 1996 and December
31, 1996. If Multifoods shall request Consultant to provide, and
Consultant shall agree to provide more than twenty-five (25) calendar
days of Consulting Services, Multifoods shall pay Consultant a fee of
Two Thousand Dollars, in United States Dollars, for each additional
calendar day of Consulting Services provided by Consultant. Any such
additional fee, which shall be due and owing to Consultant, shall be
paid by Multifoods to Consultant not later than thirty (30) days
following receipt by Multifoods of an invoice from Consultant for such
additional days of Consulting Services so provided. Multifoods will
report the payment of Consultant's compensation for the Consulting
Services on Form 1099, or such other form as may be prescribed by
applicable federal and state tax authorities.
B. Expenses of Consultant During Performance of Consulting
Services.
Multifoods will reimburse Consultant for Consultant's
reasonable travel expenses and other reasonable out-of-pocket expenses
incurred by Consultant while on assignment under and pursuant to this
Agreement, provided that Consultant shall obtain approval of an officer
of Multifoods at the Vice President or higher officer level if
Consultant's expenses on any single consulting assignment are reasonably
estimated to exceed $1,000. Consultant shall provide Multifoods with
receipts and other evidence reasonably requested by Multifoods to
substantiate any such costs and expenses incurred by Consultant while
performing the Consulting Services. Multifoods shall reimburse
Consultant for all such costs and expenses submitted by Consultant
within thirty (30) days following the date of Multifoods' receipt of
Consultant's invoice for such reimbursement and supporting
documentation.
3. Confidentiality.
A. Consultant's Covenant of Confidentiality.
In consideration of the compensation payable by
Multifoods to Consultant under this Agreement, Consultant covenants and
agrees with Multifoods that Consultant and its employees and agents will
maintain in strict confidence and not use or disclose to any
corporation, partnership, or other entity or person, any confidential
information including, without limitation, financial information, trade
secrets customer names or lists of customers, or business practices or
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 Consultant or its employees or agents may have
access to or knowledge of in the performance of Consultant's obligations
under this Agreement. As used in this Section 3, confidential
information shall not include any information: (i) which was 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
Consultant or any of its employees, agents and/or representatives; or
(iii) which is disclosed to Consultant by a third party who has the
right to disclose such information without violating any agreement of
confidentiality with Multifoods.
B. In the event that Consultant, or any employee of Consultant,
is compelled by subpoena, civil investigative demand, court order or
other legal process in any proceeding to disclose any confidential
information described in Paragraph A immediately above, Consultant shall
give Multifoods prompt notice so that Multifoods may seek an appropriate
protective order or other confidential treatment of such confidential
information. If Multifoods shall fail for any reason to obtain a
protective order and Consultant, or any employee of Consultant, shall be
compelled to disclose any such confidential information, based upon the
advice of Consultant's counsel, Consultant, or any employee of
Consultant, may disclose such information without liability under this
Agreement, provided that Consultant shall give Multifoods written notice
of the information to be disclosed as far in advance of its disclosure
as is reasonably practicable and the name of the party to whom
Consultant, or any employee of Consultant, is required to disclose such
information, and in any event, such disclosure shall be limited to the
specific information that Consultant, or any employee of Consultant, is
legally required to disclose base upon the advice of Consultant's
counsel.
C. Remedies.
Consultant agrees that money damages would not be a sufficient
remedy for any breach or threatened breach by Consultant of Consultant's
covenant of confidentiality described in this Section 3. Consultant
agrees that in addition to all other remedies that Multifoods shall be
entitled to, Multifoods shall be entitled to specific performance and
injunction or other equitable relief as a remedy for any such breach or
threatened breach, and Consultant further agrees to waive any
requirement for the securing or posting of any bond in connection with
such remedy. Consultant acknowledges that no failure or delay by
Multifoods in exercising any right under this Paragraph B will operate
as a waiver thereof, nor shall a single or partial exercise of any such
right preclude further or other exercise thereof.
4. No Waiver.
The waiver by Multifoods or Consultant of a breach by Multifoods or
Consultant, as applicable, of any provision of this Agreement, shall not
operate or be construed as a waiver of any subsequent breach by
Multifoods or Consultant, as applicable.
5. Successors and Assigns.
The rights and obligations of Consultant under this Agreement shall
not be assignable, transferable or delegable in whole or in part by
Consultant. This Agreement is binding upon the successors and assigns
of Multifoods.
6. Independent Contractor Status.
The parties acknowledge that Consultant shall perform its duties
and obligations under this Agreement as Multifoods' 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 Consultant other than that of
independent contractor. Consultant shall at all time be free to
exercise its own initiative, judgment and discretion as to how best to
perform or provide the Consulting Services. Because Consultant is an
independent contractor and not Multifoods' employee, Multifoods shall
not withhold any Federal, state or local taxes or other taxes for any
fees or amounts to be paid to Consultant. Consultant agrees that it
shall report such fees and amounts to taxing authorities and pay all
Federal, state and local taxes or other taxes payable with respect
thereto in a manner consistent with his status as an independent
contractor. Consultant further agrees to reimburse Multifoods for, and
indemnify and hold Multifoods harmless from, any tax or other amount
Multifoods may pay or be held liable to pay any governmental authority
by reason of Consultant's breach of any of the foregoing obligations or
any act by Consultant that is inconsistent with the treatment of
Consultant as an independent contractor.
7. Indemnification.
In the event that Consultant becomes involved in a legal action or
proceeding as a result of advice and counsel provided by Consultant
pursuant to this Agreement, Multifoods will indemnify Consultant against
all claims, demands, actions, lawsuits and liabilities, and all
reasonable attorney's fees and disbursements made against or incurred by
Consultant, except to the extent that any such claim, demand, action,
lawsuit or liability resulted from the gross negligence or willful
misconduct of Consultant. This indemnification shall extend upon the
same terms and conditions to the officers and employees of Consultant.
8. Governing Law.
This Agreement is a Minnesota contract and shall be governed by 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
Consultant with respect to the subject matter of this Agreement, and
supersedes any prior oral or written agreement or understanding of the
parties with respect to the subject matter of this Agreement. This
Agreement may only be amended by an agreement in writing signed by an
authorized representative of Consultant and Multifoods.
11. Condition.
This Agreement shall automatically come to an end and be null and
void should Xxxx X. Xxxxxxx, sole shareholder and chief executive
officer of Xxxxxxx Associates, Inc., exercise his right to rescind the
"Release" described in that certain Release Agreement, dated as of
August 31, 1996, between Multifoods and Xxxx X. Xxxxxxx (the "Release
Agreement"), within the 15-day recission period provided in the Release
Agreement.
IN WITNESS WHEREOF, Multifoods and Consultant have executed and
delivered this Agreement as of the day and year first above written.
INTERNATIONAL MULTIFOODS CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Its: Executive Vice President
XXXXXXX ASSOCIATES, INC.
By:/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Its: President
