THE J. M. SMUCKER
COMPANY, an Ohio corporation with its principal place of business
at Strawberry Lane, Orrville, Ohio 44667 (“ JMS
”), and Donald D. Hurrle, Sr., 8255 Wilhite Dr., Wadsworth
Ohio 44281, (“ Consultant ”), hereby agree as
follows:
1.
Recitals . Consultant has substantial experience and
knowledge relating to JMS’s business, and specifically, its
sales function. Due to the Consultant’s experience, JMS
desires to engage him on a consulting basis to provide advice in
this area. 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 the Consultant’s area of expertise
consistent with the terms of 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 of the Board 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
July 7, 2009 and will terminate on July 6, 2010 (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 . Within 10 days of executing of
this Agreement, 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, coffee,
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 b
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