Exhibit 10.5
AGREEMENT FOR CONSULTING SERVICES
1. Parties. This Agreement for Consulting Services ("Agreement") is
entered into by and between Xxxx Xxxxxxx ("Consultant") and Amish Pasta Company,
Inc. ("APC") this 27th day of October, 2006. Consultant and APC are collectively
called "Parties."
2. Purpose. Consultant and APC have voluntarily agreed to enter into
this Agreement in view of its mutual benefits, including the provision of
valuable services by Consultant and the payment of valuable consideration by
APC.
3. Scope of Services. Consultant agrees to provide advisory and
consulting services as defined and directed by the Chief Executive Officer of
APC, with respect to APC's business activities and other special projects and
assignments. On the closing date of the merger between APC, FII International,
Inc. and APC Acquisition Corp., Consultant shall perform the services of Chief
Financial Officer on a consulting basis for Amish Naturals, Inc. ("ANI").
Without in any way limiting the rights of APC or its successors under paragraph
21 below, Consultant understands that APC may assign this agreement to ANI after
the closure of the transaction and consents to such assignment. Exhibit A hereto
outlines the initial services to be provided.
4. Term of Agreement. This Agreement shall be effective commencing on
October 1, 2006 and continue through December 31, 2006 (the "Term"), unless
earlier terminated under paragraph 7 below. This Agreement may be extended (with
or without change) for additional periods on such terms as the parties may agree
in writing.
5. Payment. As compensation for services to be performed by Consultant
during the Term, APC agrees to pay Consultant a gross monthly fee of $7,500,
payable in advance on the first of every month during the Term. At the end of
each month during the Term, Consultant will submit invoices including a
statement of hours and a description of the work performed during the Term. The
invoice will indicate that services for that month have been paid.
6. Stock Options. Consultant shall be eligible to participate in any
stock option plan that may be adopted by APC for its consultants and approved by
APC's Board of Directors in its sole and absolute discretion ("Proposed Stock
Option Plan"). APC's Chief Executive Officer shall recommend to the Board of
Directors that Consultant be granted, subject to compliance with all state and
federal securities laws and in accordance with the terms and conditions of the
Proposed Stock Option Plan, an option to purchase 250,000 shares of common stock
authorized for issuance under the Proposed Stock Option Plan which will vest
pursuant to a vesting schedule. The proposed form of grant and vesting schedule
is attached hereto as Exhibit B.
7. Termination. This Agreement may be terminated before its expiration
date specified in paragraph 4:
a. By either party for any reason upon thirty (30) days'
written notice;
b. Upon written notice by the non-breaching party specifying a
material breach of this Agreement by the other party (including without
limitation breach of any obligation referenced in paragraphs 18 through 19
below);
c. Any willful and continual failure of Consultant to
substantially perform his duties;
d. Upon written notice by APC based on Consultant's inability
to perform services due to disability continuing for a continuous period of ten
(10) calendar days or aggregating to ten (10) calendar days during the term of
this Agreement; or
e. Automatically upon Consultant's death or the insolvency APC
resulting in a petition in bankruptcy or the commencement of an assignment for
the benefit of its creditors.
Notwithstanding any notice of termination pursuant to subparagraphs a
through e above, Consultant shall remain bound by the promises contained in
paragraphs 17 through 19 below.
8. Supplies and Equipment. Except as provided in this paragraph,
Consultant will provide the supplies and equipment necessary to perform the
services requested. APC shall provide Consultant with reasonable access to the
information and facilities necessary to enable Consultant to perform services
under this Agreement.
9. Expenses. Consultant shall pay all expenses incurred in performance
of said services except for travel costs approved in advance by APC. Unless
otherwise agreed upon by APC in writing, expenses incurred by Consultant in
performing services for, or on behalf of APC, except for travel costs, shall not
be reimbursed by APC.
10. Relationship Between Parties. The parties intend that Consultant
shall provide services to APC as an independent contractor. Nothing in this
Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between APC and Consultant, or any
employee or agent of Consultant. Consultant shall be solely and entirely
responsible for Consultant's acts and the acts of Consultant's employees, agents
or subcontractors.
11. Control. Consultant retains the sole and exclusive right to control
or direct the manner or means by which the services described herein are to be
performed.
12. Non-Exclusive Arrangement. It is not intended that APC will have an
exclusive right to Consultant's services during the course of this Agreement,
and Consultant shall retain the right to perform services for others, to become
employed by others during the term of this Agreement, provided such services (a)
are not competitive with APC or its affiliates and (b) do not involve Consultant
in a conflict of interest with respect to the consulting arrangements set forth
in this Agreement. APC is free to utilize the services of others during the term
of this Agreement.
13. Time and Place of Work. Consultant's services shall be rendered in
a timely and professional manner at such places and during such hours as
Consultant and APC may determine, consistent with the needs of the services as
referenced in paragraph 3 above.
14. Benefits. Because Consultant is engaged as an independent
contractor and not as an employee, Consultant will not be eligible to
participate in employee benefits, leaves of absence or other programs that are
now or may be provided by APC to its employees.
15. Taxes. Because Consultant is engaged as an independent contractor
and not an employee, no payment received by Consultant pursuant to this
Agreement shall be subject to employment tax withholding, nor shall APC withhold
or pay federal social security tax (FICA), Medicare tax, or federal or state
income tax, or make contributions to the federal or state unemployment or
disability insurance funds on behalf of Consultant. Consultant is responsible
for filing all income and other tax forms and paying all taxes due. Consultant
shall indemnify and defend APC against all liability or loss, and against all
claims or actions based upon or arising out of Consultant's tax treatment of
payments or failure to comply with the terms of this paragraph.
16. Insurance. Consultant shall be solely responsible for maintaining
insurance coverage applicable to Consultant's performance of services under this
Agreement, including but not limited to workers' compensation, automobile,
general liability and property damage insurance. Consultant shall indemnify and
defend APC against all liability or loss, and against all claims or actions
based upon or arising out of damage or injury to persons or property caused by
or sustained in connection with Consultant's performance of services under this
Agreement.
17. Arbitration. Except for any legal action seeking a temporary
restraining order or preliminary injunction, Consultant and APC consent to
submit to final and binding arbitration any and all disputes and controversies
between Consultant and APC, or any of their respective employees, officers,
agents, or representatives, including without limitation any claims relating to
Consultant's engagement, claims for breach of contract, statute or public
policy, or personal injury (tort). The arbitration shall be conducted in the
County of Xxxxxx, in accordance with Ohio Revised Code Annotated sections
2711.01 through 2711.16, as amended, except as modified by this Agreement. Any
dispute submitted to arbitration shall be decided by a single, neutral
arbitrator, which shall be mutually selected by the parties not later than
forty-five days after service of the demand for arbitration. If the parties for
any reason do not mutually select the Arbitrator within the forty-five (45) day
period, then either party may apply to any court of competent jurisdiction to
appoint a retired judge as the arbitrator. Judgment on an award issued by the
arbitrator may be entered in any court of competent jurisdiction. The prevailing
party shall be entitled to recover all costs incurred as a result of the
arbitration, including without limitation, filing fees, attorneys' fees,
compensation paid to the arbitrator and costs of transcripts.
18. Confidential Information, Inventions, Non-Solicitation. Consultant
acknowledges and agrees to comply with all of the terms of the Consultant
Confidentiality and Non-Disclosure Agreement ("Confidentiality Agreement")
executed by Consultant, attached hereto as Exhibit C, during the term of this
Agreement and thereafter as provided in the Confidentiality Agreement.
19. Company Property. Upon request or upon the termination of this
Agreement, at any time for any reason, Consultant shall promptly deliver to APC
all company property (whether maintained in tangible documentary form, or in
computer memory or other electronic format) which Consultant or Consultant's
employees, agents or subcontractors produced or received while performing
services pursuant to this Agreement, without keeping any copy of any such APC
property for Consultant or any other entity or individual.
20. Compliance with Laws. In performing services under this Agreement,
Consultant promises to comply with all applicable federal, state, county and
city laws, ordinances and regulations.
21. Assignment/Subcontracting. This Agreement is assignable by APC upon
written notice to Consultant. However, since the services to be rendered by
Consultant are personal in nature, this Agreement may not be assigned by
Consultant without the written consent of APC. Consultant shall not utilize
Consultant's employees, agents, or subcontractors to perform services under this
Agreement without the express, written consent of APC.
22. No Authority to Bind APC. Consultant has no authority to enter into
contracts or agreements on behalf of APC, or to represent APC as an agent or in
any other capacity without the express written consent of the President of APC.
23. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Ohio.
24. Notices. All notices or other communications provided for in this
Agreement shall be made in writing and shall be deemed properly delivered when
(i) delivered personally or (ii) by the mailing of such notice by registered or
certified mail, postage prepaid, to the parties at the addresses set forth on
the signature page of this Agreement (or to such other address as one party
designates to the other in writing).
25. Reformation/Severability. If any provision of this Agreement is
declared invalid by any tribunal, then such provision shall be deemed
automatically adjusted to the minimum extent necessary to conform to the
requirements for validity as declared at such time and, so adjusted, shall be
deemed a provision of this Agreement as though originally included therein. In
the event the provision invalidated is of such a nature that it cannot be so
adjusted, the provision shall be deemed deleted from this Agreement as though
such provision had never been included. In either case, the remaining provisions
of this Agreement shall remain in effect.
26. Entire Agreement. This Agreement is the entire agreement between
the parties relating to the engagement of Consultant by APC. Except as
specifically incorporated herein, this Agreement supersedes and terminates all
prior agreements, whether oral or written, between APC and Consultant.
27. Amendments. No supplement, modification or amendment of any term,
provision or condition of this Agreement shall be binding or enforceable unless
evidenced in writing executed by the parties hereto.
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After carefully reading and considering the foregoing provisions of
this Agreement, Consultant and APC have voluntarily signed this Agreement to be
effective as of the date first above written.
Xxxx Xxxxxxx Amish Naturals, Inc.
/s/ Xxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Signature Xxxxx X. Xxxxxxx, Xx.
Its: President and Chief Executive Officer
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Tax I.D. Number
