Exhibit 10.31
CONSULTING AGREEMENT
The J. M. SMUCKER COMPANY, an Ohio corporation with its principal place of
business at Strawberry Lane, Orrville, Ohio 44667 ("JMS"), and Richard G. Jirsa,
169 Whittlesey Drive, Tallmadge, Ohio 44278 ("CONSULTANT"), hereby agree as
follows:
1. RECITALS. Consultant has substantial experience and knowledge relating
to JMS's financial and accounting procedures. 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 accounting or financial services
as set forth in the areas outlined above, pursuant to 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 January 1, 2006 and
will terminate on December 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 December 31, 2005, 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 not be modified or assigned without the express
permission of both parties in a writing referring to this Agreement.
2
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: December 16, 2005
The J. M. SMUCKER COMPANY CONSULTANT
By: /s/ Mark R. Belgya /s/ Richard G. Jirsa
--------------------------------- ----------------------------------------
Mark R. Belgya Richard G. Jirsa
Vice President - Chief Financial
Officer and Treasurer
3
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.