Exhibit 10.5
Conformed Copy
RETENTION AGREEMENT
THIS AGREEMENT, made as of this 1st day of January,
1992 (the "Effective Date"), by and between DEL MONTE
CORPORATION, a New York corporation (the "Company") and XXXXXX X.
XXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, in order to provide the Executive continued
incentives to remain in the services of the Company, its
subsidiaries or affiliates, the Company desires to provide the
Executive with compensation security under the conditions set
forth in this Agreement in the event that the Executive's
employment hereunder is terminated by the Company or any such
subsidiary or affiliate without Cause (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and
covenants herein contained, the parties hereto hereby agree as
follows:
1. Employment. The Executive agrees to devote his
working time, on substantially a full-time basis, to the
performance of such services for the Company, its subsidiaries
and affiliates as may be assigned to him from time to time and to
perform such services faithfully and to the best of his ability.
This Agreement shall commence on the Effective Date and shall
remain in effect so long as the Executive remains employed by the
Company, any of its subsidiaries or any successor organization.
2. Termination for Cause; Termination by Reason of
Death. (a) This Agreement shall be terminated immediately and
neither party shall have any obligation hereunder if the
Executive's employment is terminated for Cause (as hereinafter
defined) or by reason of the Executive's death. (b) The Executive
shall be terminated for "Cause" only if the Executive's
employment is terminated as a result of (i) criminal dishonesty,
(ii) deliberate and continual refusal to perform employment
duties on substantially a full-time basis or to act in accordance
with any specific lawful instructions given to the Executive in
connection with the performance of his duties for the Company or
any of its subsidiaries or affiliates, unless, the Executive is
disabled, or (iii) deliberate misconduct which is reasonably
likely to be materially damaging to the Company without a
reasonable good faith belief by the Executive that such conduct
was in the best interests of the Company. (c) The Executive may
voluntarily terminate his employment at any time prior to notice
by the Company of termination under Sections 2(a) or 3(a) of this
Agreement by written notice to the Company. Upon such notice,
this Agreement shall be terminated immediately and Executive
shall have no entitlement to any compensation provided under
Section 3 of this Agreement. 3. Termination Without Cause. (a)
Severance Amount. If the Executive's employment hereunder is
terminated by the Company without Cause, the Company shall pay to
the Executive the Severance Amount (as hereinafter defined) over
an eighteen (18) month period commencing with the date of such
termination (the "Severance Period"). The total severance amount
(the "Severance Amount") for the Severance Period shall equal the
greater of (i) the total dollar amount payable to the
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Executive under the formula for separation pay as
determined by the then existing separation program applicable to
the Executive as of the date of such termination or (ii) the sum
of (A) plus (B), where (A) is the Executive's highest annual rate
of salary in effect during the twelve (12) month period prior to
such termination and (B) is the target award under the Company's
Annual Incentive Award Plan (or successor thereto) for the year
in which such termination occurs (or, if greater, the amount of
the award for the next preceding year of full-time employment).
The Severance Amount shall be paid to the Executive in eighteen
(18) equal monthly installments over the Severance Period and
each such installment shall be subject to regular payroll
deductions. Payment of the Severance Amount and continuation of
benefits under Section 3(b), below, is conditioned upon the
Executive executing and delivering to the Company a written
agreement in the form furnished by the Company by which the
Executive effectively reaffirms the conditions of Section 5 and
releases the Company from employment termination-related claims.
In addition, the Executive will also be paid an award under the
Annual Incentive Award Plan (or successor thereto, if any) of the
Company, based upon the target award for the year in which the
Executive's termination without Cause occurs, prorated for the
active employment during such year and adjusted for performance.
Such pro rata bonus shall be paid within thirty (30) days of the
date of such termination. (b) Employee Benefit Plans. In the
event the Company terminates the Executive's employment other
than for Cause, the Executive will continue to be eligible for
the welfare benefits (other than disability benefits) afforded by
the employee welfare benefit plans and programs maintained by the
Company in which he participated (and at an equivalent level of
participation) immediately prior to such termination until the
earlier to occur of (i) the end of the Severance Period or (ii)
such time as the Executive is covered by comparable programs of a
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subsequent employer. For all other employee benefit plans of the
Company, the date of termination of employment will be treated as
the Executive's severance date, as of which plan participation
will cease. Anything herein to the contrary notwithstanding, the
Company shall have no obligation to continue to maintain during
the Severance Period any plan or plan provision solely as a
result of the provisions of this Agreement and Executive will be
subject to all changes in such plans occurring during the
Severance Period, unless former employees on salary continuation
are specifically excepted.
(c) Death. In the event of the Executive's death
subsequent to commencement of the Severance Period, the balance
of the Severance Amount will be paid to his beneficiary in a lump
sum. "Beneficiary" shall mean the person or persons designated by
the Executive in writing to the Company to receive payments under
this Agreement or, if no such person or persons are designated,
the Executive's estate.
(d) Outplacement Counseling. During the Severance
Period, the Executive will be provided with outplacement
counseling services at Company expense; provided, however. the
expense for such services in any calendar year shall not exceed
eighteen percent (18%) of the Severance Amount paid to the
Executive for such calendar year. This counseling shall include,
but not be limited to, skill assessment, job market analysis,
resume preparation, interviewing skills, job search techniques
and negotiating.
(e) Fringe Benefits. The Company will continue the
Executive's participation in the Management Perquisite Program
applicable to the Executive as of the date of such termination
until the earlier to occur of (i) the first anniversary of such
termination or (ii) the date the Executive is covered by
comparable fringe benefit programs and perquisites of a
subsequent employer.
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4. Disability. The event of Permanent Disability (as
hereinafter defined) shall not entitle the Executive to any of
the payments or benefits described in Section 3 above unless the
Executive is terminated by the Company other than for Cause.
"Permanent Disability" shall mean physical or mental disability
as a result of which the Executive is unable to perform his
duties with the Company on substantially a full-time basis for
any period of six (6) consecutive months. Any dispute as to
whether or not the Executive is so disabled shall be resolved by
a physician reasonably acceptable to the Executive and the
Company whose determination shall be final and binding upon both
the Executive and the Company.
5. Conditions Applicable to Severance Benefits.
(a) Confidentiality and Conduct. The Executive warrants
and agrees that he will not disclose to any person, other than
the employees, officers, directors or shareholders of DMPF
Holdings Corporation, a Maryland corporation, or its affiliates
and subsidiaries in connection with the performance of his duties
hereunder, any confidential information or trade secrets
concerning the Company or any of its subsidiaries or affiliates
at any time. Notwithstanding the foregoing, confidential
information and trade secrets shall not be deemed to include,
without limitation, information which (i) is or becomes available
to the public other than as a result of disclosure by the
Executive in violation of this Section 5(a) or (ii) the Executive
is required to disclose under any applicable laws, regulations or
directives of any government agency, tribunal or authority having
jurisdiction in the matter or under subpoena or other process of
law. The Executive will at all times refrain from taking any
action or making any statements, written or oral, which are
intended to and do demonstrably and materially damage the
Company, its subsidiaries and affiliates and their respective
directors, officers or employees. In the event that the Executive
materially violates the terms and conditions of this Section
5(a), the Company
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may, at its election, upon ten (10) days' notice, terminate the
Severance Period and discontinue payments of the Severance Amount
and cease providing the benefits described in Section 3 above.
The Company may also initiate any form of legal action it may
deem appropriate seeking damages or injunctive relief with
respect to any material violations of this Section 5(a).
(b) Non-Competition. The Severance Period shall be
terminated and the Company shall have no further obligation to
pay the Severance Amount or to provide the benefits described in
Section 3 above if the Executive, without the Company's written
approval, accepts a position of employment with any other company
conducting a business which is substantially competitive with a
business conducted by the Company.
(c) No Other Severance Benefits. Except as
specifically set forth in this Agreement, the Executive covenants
and agrees that he shall not be entitled to any other form of
severance benefits from the Company, including, without
limitation, benefits otherwise payable under any of the Company's
regular severance policies, (including any benefits under the
existing separation program referenced in Section 3(a)(i) above)
in the event his employment with the Company ends for any reason
and, except with respect to obligations of the Company expressly
provided for herein, the Executive unconditionally releases the
Company and its subsidiaries and affiliates, their respective
directors, officers, employees and stockholders, or any of them,
from any and all claims, liabilities or obligations under this
Agreement or under any severance or termination arrangement of
the Company or any of its subsidiaries or affiliates for
compensation or benefits in connection with his employment or the
termination thereof.
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6. General Provisions.
(a) Notices. Any noticehereunder by either party to the
other shall be given in writing by personal delivery, telex,
telecopy or registered mail, return receipt requested, to the
applicable address set forth below:
(i) To the Company: Del Monte Corporation
Xxx Xxxxxx Xxxxx X.X.
Xxx 000000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Secretary of the Board
(ii) To the Executive: Xxxxxx X. Xxxxxxx
c/o Del Monte Corporation
X.X. Xxx 000000
Xxx Xxxxxxxxx, XX 00000-0000
(b) Limited Waiver. The waiver by the Company or the
Executive of a violation of any of the provisions of this
Agreement, whether express or implied, shall not operate or be
construed as a waiver of any subsequent violation of any such
provision.
(c) No Assignment. No right, benefit or interest
hereunder shall be subject to assignment, encumbrance, charge,
pledge, hypothecation or set off by the Executive in respect of
any claim, debt, obligation or similar process. This Agreement
and all of the Company's rights and obligations hereunder may be
assigned, transferred or delegated to any business entity which,
at the time of any sale, merger, consolidation or other business
combination, acquires all or substantially all of the assets of
the Company or to which the Company transfers all or
substantially all of its assets, but no such assignment, transfer
or delegation shall impair any rights that the Executive may have
hereunder. Upon such assignment, transfer or delegation, any such
business entity shall be deemed to be substituted for all
purposes as the Company hereunder; provided, however, that no
such assignment, transfer or delegation shall relieve the
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Company of its obligations under this Agreement in the event that
such obligations are not performed when due by any such successor
to the Company hereunder.
(d) Amendment. This Agreement may not be amended,
modified or canceled except by written agreement of the parties.
(e) Severability. In the event that any provision or
portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, the remaining provisions of this
Agreement shall remain in full force and effect to the fullest
extent permitted by law.
(f) Unsecured Promise. Unless otherwise stated herein,
no benefit or promise hereunder shall be secured by any specific
assets of the Company. Unless otherwise stated herein, the
Executive shall have only the rights of an unsecured general
creditor of the Company in seeking satisfaction of such benefits
or promises.
(g) Governing Law. This Agreement has been made in and
shall be governed by and construed in accordance with the laws of
the State of New York.
(h) Entire Agreement. This Agreement sets forth the
entire agreement and understanding of the parties hereto with
respect to the matters covered hereby.
(i) Headings. The headingsand captions of the Sections
of this Agreement are included solely for convenience of
reference and shall not control the meaning or interpretation of
any provisions of this Agreement.
(j) Counterparts. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed an
original, but both such counterparts shall together constitute
one and the same document.
IN WITNESS WHEREOF, the parties have executed this
Agreement effective as of the day and year first written above.
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DEL MONTE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Title: Sr. Vice President
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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