Exhibit 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
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THIS AMENDMENT TO EMPLOYMENT AGREEMENT is entered into as of the 30th
day of October 2003 (this "Agreement"), by and between OVERHILL FARMS, INC., a
Nevada corporation, (hereinafter "Farms" or the "Company") and Xxxxx Xxxxx, an
individual residing in the state of New York (hereinafter "Xxxxx" or
"Employee").
R E C I T A L S
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WHEREAS, Overhill Corporation (f/k/a Polyphase Corporation n/k/a
TreeCon Resources, Inc.,) a Nevada corporation (hereinafter "TreeCon"), Farms
and Xxxxx entered into that certain Employment Agreement dated as of the 1st day
of November 1999 (the "Employment Agreement"); and
WHEREAS, TreeCon and Farms were jointly and severally liable to Xxxxx
for all obligations imposed on the Companies (as that term is defined in the
Employment Agreement) pursuant to the Employment Agreement including all
compensation and benefits; and
WHEREAS, On or about the 29th day of October 2002, TreeCon, Xxxxx and
Farms entered into that certain Limited Release Agreement wherein the parties
set forth the terms and conditions of the termination of Xxxxx' employment with
TreeCon, including the granting of partial releases of liability between Xxxxx
and TreeCon from certain obligations created by or arising pursuant to the
Employment Agreement (the "Release Agreement"); and
WHEREAS, On or about the 29th day of October 2002, Xxxxx and Farms
entered into that certain Amended and Restated Investor Rights Agreement with
Xxxxxx Xxxxxxxxx Capital Partners II, L.P., a California limited partnership
("LLCP"), as amended by an Amendment to Amended and Restated Investor Rights
Agreement dated as of April 16, 2003; (the "XXX"); and
WHEREAS, contemporaneously with the execution hereof, Xxxxx and Farms
are executing a Second Amendment to Amended and Restated Investor Rights
Agreement with LLCP, modifying certain provisions of the XXX and reaffirming the
obligations created by the XXX that are not modified thereby (as so amended, the
"INVESTOR RIGHTS AGREEMENT"); and
WHEREAS, the Employment Agreement expires by its own terms on the 31st
day of October 2004; and
WHEREAS, Farms has requested that Xxxxx extend the term of his
employment by amending the Employment Agreement as set forth herein; and
WHEREAS the parties desire to enter into this Agreement to amend the
Employment Agreement on the terms and conditions as specifically set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt, and adequacy of which are hereby acknowledged by the
parties hereto, Farms and Xxxxx agree as follows:
1. ACKNOWLEDGEMENT OF EXISTING OBLIGATIONS. Farms hereby
acknowledges, agrees and affirms its continuing obligations
under the Employment Agreement in its entirety, including the
obligation to pay all deferred compensation and all other
benefits due Xxxxx, if any, that will accrue or have accrued,
whether currently owing, owing in the future or presently past
due prior to the execution hereof. More specifically, without
limiting the generality of the forgoing, Employee shall be
entitled to receive all monetary compensation, accrued but
unused vacation and sick leave pay, indebtedness owed by the
Companies to him, reimbursement for reasonable and necessary
business expenses previously incurred, all rights granted in
the Employment Agreement with respect to insurance, all
amounts to which the he is entitled under any Profit Sharing
Plan of the Companies and all other benefits not specified
herein to which he may be entitled throughout the entire Term
of the Employment Agreement.
2. AMENDMENTS TO EMPLOYMENT AGREEMENT. The following sections of
the Employment Agreement entitled "TERM" and "COMPENSATION"
shall be amended and superceded by the terms and provisions
set forth hereinbelow. The remaining terms and provisions of
the Employment Agreement remain unaffected and the Employment
Agreement shall continue to be enforceable in its entirety,
modified only by the amendments specifically set froth
hereinbelow as follows:
2.1 AMENDMENT OF SECTION 2.1 ENTITLED "TERM". Section 2.1
of the Employment Agreement entitled "Term",
contained on page 1, is hereby amended by deleting
such Section in its entirety and replacing it with
the following, to read in its entirety as follows:
Section 2.1: Term. Subject to the provisions for
termination hereinafter provided, the initial term
of this Agreement shall begin on the 1st day of
November 1999, and shall end on October 31, 2006
(the "Initial Term"). This Agreement shall
continue from year to year thereafter (each
constituting an "Annual Extended Term") unless
terminated by either party hereto as provided for
in the next sentence. Any reference in this
Agreement to the "Term" that is not specified as
either the Initial Term or an Annual Extended Term
shall mean the Initial Term and each Annual
Extended Term collectively. Prior to the
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expiration of the Initial Term or any Annual
Extended Term, Farms may terminate this Agreement
effective as of the last day of the Initial Term
or any subsequent Annual Extended Term, provided
that Farms provides Employee with a minimum of
ninety (90) days prior written notice which must
be actually received by the Employee at least
ninety (90) days prior to the expiration of the
Initial Term or the anniversary or renewal date
for the beginning of the next Annual Extended
Term.
2.2 AMENDMENT OF SECTION 2.2 ENTITLED "COMPENSATION".
Section 2.2 of the Employment Agreement entitled
"Compensation", contained on page 1, is hereby
amended by deleting such Section in its entirety and
replacing it with the following, to read in its
entirety as follows:
Section 2.2: Compensation.
i) For all services rendered by the
Employee under this Agreement, the
Company shall pay the Employee an
initial salary of $230,000 per year
during the Term of this Agreement,
payable in monthly installments on
or before the last day of each
month during the full Term hereof,
or in such other convenient
periodic payments as the Company
and the Employee may mutually
agree. Compensation shall be
reviewed on an annual basis and
shall be subject to a minimum
increase in a percentage not less
than that of the annual increase in
the cost of living. The Employee
will be entitled to participate in
any Stock Option or Bonus Plans
offered by the Companies. In the
event that Overhill Farms, Inc.
meets or exceeds the Board of
Directors approved budget for
fiscal 2000, Employee will be
entitled to a minimum annual cash
bonus of $40,000 for that fiscal
year.
ii) Beginning on November 1, 2003 and
continuing thereafter until this
Agreement is terminated, in
accordance with the terms herein
provided, for all services rendered
by the Employee under this
Agreement, the Company shall pay
the Employee an annual base salary
of $275,000 per year, during the
Term of this Agreement, payable in
monthly installments on or before
the last day of each month
throughout the full Term hereof, or
in such other convenient periodic
payments as the Company and the
Employee may mutually agree.
Compensation shall be reviewed on
an annual basis and shall be
subject to a minimum increase in a
percentage not less than that of
the annual increase in the cost of
living. The Employee will be
entitled to participate in any
Stock Option or Bonus Plans offered
by the Companies. The Board of
Directors of the Company intends to
establish an incentive based bonus
program within which the Employee
would participate. Such incentive
based bonus program may compensate
the Employee with cash or options
to purchase the common stock of the
Company, in the sole discretion of
the Board of Directors.
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2.3 AMENDMENT OF SECTION 4.3 ENTITLED "TERMINATION BY THE
COMPANIES FOR CAUSE". Section 4.3 of the Employment
Agreement entitled "Termination by the Companies for
Cause" contained on pages 4 and 5, is hereby amended
by replacing subparagraph (b) thereof (being one of
the delineated acts constituting "Cause" contained in
such Section) with the following subparagraph (b); to
read in pertinent part as follows:
Section 4.3: Termination by the Companies for
Cause. Subject to any opportunity to cure on the
part of the Employee, the Companies may for Cause
(as hereinafter defined) terminate the Employee's
employment hereunder upon written notice
specifying the particulars of the Cause. "Cause"
shall mean:
a) (NOT AMENDED)
b) A breach by the Employee of, or a
failure by the Employee to comply
with, the Employee's fiduciary
duties to Farms (for the purposes
of this subsection only, "fiduciary
duties to Farms" shall include
without limitation, (i) the failure
of the Employee to resign from his
positions at TreeCon Resources,
Inc. (including, without
limitation, as its Chairman of the
Board, President and Chief
Executive Officer, and as a
director) on or before December 31,
2003 or (ii) a failure of the
Employee to comply with the terms
of Section 1.2 (a) and (b) of the
Investor Rights Agreement, which is
the direct cause of the LLCP
Representative (as defined in said
agreement) not being elected or
appointed as a member of the board
of directors of Overhill Farms,
Inc.).
REMAINDER OF SECTION 4.3 NOT AMENDED
3. ENFORCEABILITY OF EMPLOYMENT AGREEMENT. This Agreement is
being executed and entered into without prejudice to the
rights, remedies or powers of any party under or in connection
with the Employment Agreement, applicable laws or otherwise,
and nothing contained in this Agreement is intended to or
shall be construed as a waiver of any breach, violation or
default, whether past, present or future, under the Employment
Agreement in its original form or as amended by this
Agreement, or a forbearance by the Employee of any of his
rights, remedies or powers against the Companies. The Employee
hereby expressly reserves all of his rights, powers and
remedies under or in connection with the Employment Agreement
as amended hereby. The rights of the Employee with respect to
the Employment Agreement except as specifically and expressly
modified herein, shall remain in full force and effect, it
being expressly stated and understood that this Agreement is
not a termination of the Employment Agreement, or any
provision thereof, but is a modification (and, as modified, a
continuation) of the Employment Agreement. Every provision of
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the Employment Agreement, as it existed prior to the execution
hereof, shall survive the execution hereof with respect to
liability from any party to any other party and the terms of
the Employment not specifically modified hereby shall remain
in full force and effect as if this Agreement had never been
executed.
4. MISCELLANEOUS.
4.1 BINDING EFFECT. This Agreement and the terms,
covenants, conditions, provisions, obligations,
undertakings, rights and benefits hereof, shall be
binding upon, and shall inure to the benefit of,
Farms and the Employee and their respective heirs,
executors, administrators, representatives, officers,
directors, shareholders, successors, agents,
servants, employees, attorneys, and assigns.
4.2 WAIVER OF BREACH. The waiver by Farms or the Employee
of a breach of any provision of this Agreement by the
other party hereto shall not operate or be construed
as a waiver of any subsequent breach of the same or
any other provision hereof by the same party.
4.3 AMENDMENTS. No charge, alteration or amendment to
this Agreement shall be valid or binding upon the
parties hereto unless made in writing and signed by
the party sought to be charged with performance
thereunder.
4.4 CONSTRUCTION. This Agreement constitutes the entire
understanding between the parties hereto and the
parties hereby declare that other than the Employment
Agreement modified hereby, there are no oral or other
agreements or understandings between them with
respect to the subject matter hereof.
4.5 MULTIPLE COUNTERPARTS. This Agreement may be executed
in multiple identical counterparts, each of which
shall be deemed an original, and all of which taken
together shall constitute but one and the same
instrument; but in making proof of this Agreement, it
shall not be necessary to produce or account for more
than one counterpart executed by the party sought to
be charged with performance hereunder.
4.6 JURISDICTION; GOVERNING LAW. The parties agree that
the courts of the State of New York, and any courts
whose jurisdiction is derivative on the jurisdiction
of the courts of the State of New York, shall have
personal jurisdiction over all parties to this
Agreement. The parties further agree that this
Employment Agreement, as amended from time to time,
and the rights and obligations arising hereunder
shall be governed by, and construed and enforced in
accordance with, the laws of the state of New York
applicable to contracts made and that are to be
wholly performed within such state, without regard to
principles regarding choice of law or conflicts of
laws, except to the extent that federal law may
apply.
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4.7 ATTORNEYS' FEES. If any action, whether at law or in
equity, is necessary to enforce or interpret any of
the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees,
court costs and other reasonable expenses of
litigation, in addition to any and all other relief
to which such party may be entitled.
4.8 HEADINGS AND PRONOUNS. The subject headings of the
sections of this Agreement are included for purposes
of convenience only, and shall not affect the
construction or interpretation of any of its
provisions. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the
entities or persons referred to may require.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized representatives as of the date
first written above.
"Xxxxx" "Farms"
OVERHILL FARMS, INC., a Nevada
corporation
/S/ Xxxxx Xxxxx By: /S/ Xxxx Steinbrun
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Xxxxx Xxxxx Xxxx Steinbrun
Senior Vice President and Chief
Financial Officer
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