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EXHIBIT 10.28
Execution Copy
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of the
_____ day of September, 1997, by and between SOUTHERN FOODS GROUP, L.P., a
Delaware limited partnership (the "EMPLOYER"), and XXXX XXXXXXXX (the
"EMPLOYEE").
Recitals
WHEREAS, Southern Foods Group, Inc., a Delaware corporation ("SFG
INC."), and Employee entered into that certain Executive Employment and Stock
Agreement, dated as of February 18, 1994 (the "PRIOR EMPLOYMENT AGREEMENT");
WHEREAS, Employer succeeded to the assets and liabilities of SFG Inc. on
December 31, 1994; and
WHEREAS, the parties desire to terminate the Prior Employment Agreement
and to enter into this Agreement to provide for the employment of Employee by
Employer and certain other matters as provided herein;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and promises hereinafter contained, do hereby agree as follows:
1. Employment. Employer hereby employs Employee and Employee hereby
accepts the employment, on the terms and conditions hereinafter set forth.
This Agreement supersedes and terminates the Prior Employment Agreement, and
the Prior Employment Agreement is now of no further force or effect.
2. Duties. During the term of this Agreement, Employee will serve
as the President and Chief Executive Officer of Employer and will render such
services to Employer and its affiliates of an executive and administrative
character as the general partner of Employer may from time to time reasonably
direct. Employee will devote his best efforts and substantially all of his
business time and attention (except for vacation periods and reasonable periods
of illness or other incapacity) to the business of Employer and its affiliates;
provided, however, that Employee may devote a reasonable amount of time
(consistent with Employee's past practices) to civic, charitable, political and
passive investment endeavors.
3. Employment Term. The employment term shall begin on the date
hereof and continue until the first to occur of:
(a) The fifth anniversary of the date hereof; provided,
however, that the term shall be automatically extended for one or more
one (1) year periods unless Employer or Employee, not less than ninety
(90) days prior to the commencement of any such one (1)
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year period, notifies the other party in writing that this Agreement
shall expire rather than be extended for additional one (1) year
periods; or
(b) The date on which the employment period is terminated
pursuant to Section 12 hereof.
4. Salary and Other Compensation. As compensation for the services
to be rendered by Employee to Employer pursuant to this Agreement and as
consideration for Employee's obligations under Sections 6 through 10 hereof,
Employee shall be paid the following compensation and other benefits:
(a) SALARY: Employer shall pay Employee an annual salary of
$359,000, or such higher compensation as may be established by Employer
from time to time (the "BASE SALARY").
(b) ANNUAL BONUS: Employer shall pay Employee an annual bonus
(each, an "ANNUAL BONUS") with respect to each Fiscal Year (as defined
in Section 5) fully completed during the term of Employee's employment
of such amount as may from time to time be determined by Employer.
(c) DISABILITY: Should Employee become disabled, which for
purposes of this subsection 4(c) means Employee's inability because of
any physical or emotional illness to perform Employee's assigned duties
under this Agreement more than 30 hours per week, Employee's Base Salary
shall nevertheless be paid at its full rate prior to the Employee's
termination pursuant to Section 12(b); provided, however, that if
Employee receives any periodic payments representing lost compensation
under any health, disability, or accident insurance policy or under any
salary continuation insurance policy, the premiums for which have been
paid by Employer or paid for by Employee but reimbursed by Employer, the
amount of salary that Employee will be entitled to receive from Employer
during the disability shall be decreased by the gross amount of such
payments (before any withholding for taxes).
(d) EMPLOYEE BENEFIT PLANS: Employee shall be eligible to
participate, to the extent Employee may be eligible, in any profit
sharing, retirement, insurance, health coverage or other employee
benefit plan maintained by Employer.
(e) FRINGE BENEFITS: Except as provided otherwise in this
Agreement, Employee shall be entitled to the fringe benefits available
to the other employees of Employer, as such benefits may be revised from
time to time.
(f) VACATIONS AND LEAVE: Employee shall be entitled to the
same vacation and leave time as the other executive officers of
Employer.
5. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
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(a) "TRADE SECRETS" means any scientific or technical
information, formula, design, process, procedure or improvement that is
valuable to Employer and not generally known to the competitors of
Employer. To the fullest extent consistent with the foregoing and
otherwise lawful, Trade Secrets shall include, without limitations, all
information and documentation pertaining to the invention, development,
nature, design and specifications of and the production, application and
processing techniques and procedures relating to Employer's present and
future products and processes.
(b) "CONFIDENTIAL INFORMATION" means any data or information
and documentation, other than Trade Secrets, that is valuable to
Employer and not generally known to the public. To the fullest extent
consistent with the foregoing and otherwise lawful, Confidential
Information shall include, without limitation, Employer's marketing
techniques, pricing information, business plans and opportunities, bids
in process or under consideration (regardless of whether Employer has
entered into any agreement, made any commitment, or issued any bid or
offer), financial statements and projections, specialized customer
information concerning unique or novel marketing habits, and the special
products and services Employer may offer or provide to its customers
from time to time.
(c) "CONFIDENTIAL CUSTOMER INFORMATION" means any technical or
accounting data or proprietary information or confidential business
information of any of Employer's customers.
(d) "AFFILIATE" with respect to any person or entity means any
person or entity that directly or indirectly controls, is controlled by,
or is under common control with such person or entity.
(e) "FISCAL YEAR" shall mean Employer's fiscal year for
accounting and tax purposes, and shall include any fiscal year that is
shorter or longer than twelve (12) months due to a change in the date
Employer's fiscal year ends.
6. Employer Property. With respect to any and all Trade Secrets,
Confidential Information and other processes, formulae, inventions and works
made or conceived by Employee during his employment, whether (i) solely or
jointly with any other person, firm, organization or employee, (ii) during or
after his regular hours of employment, or (iii) with or without the use of
Employer's facilities, materials or personnel:
(a) Employee will disclose promptly to Employer all such Trade
Secrets, Confidential Information and other processes, formulae,
inventions and works.
(b) Employee will execute and promptly deliver to Employer
such written instruments, and, upon the request of Employer, do such
other acts, as may be required to patent, copyright or otherwise protect
such Trade Secrets, Confidential Information and other processes,
formulae, inventions and works, and any documentation or other materials
pertaining thereto, and to vest all rights, title and interest therein
in Employer. All such Trade Secrets, Confidential Information and other
processes, formulae, inventions and works, together with any
documentation or other materials pertaining thereto, shall be
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considered work made for hire and prepared by Employee as an employee
within the scope of his employment by Employer.
(c) Employer shall have the perpetual and unlimited right,
without cost, to make, use and sell, in whole or in part, any of such
Trade Secrets, Confidential Information or other processes, formulae,
inventions or works, and to make, use and sell any and all products,
processes and services derived from any of such Trade Secrets,
Confidential Information or other processes, formulae, inventions or
works.
7. Confidentiality. Except as required by law, during the term of
employment by Employer and thereafter, Employee shall not, without the prior
written consent of Employer, directly or indirectly use, disclose or
disseminate to any other person, firm, organization or employee, or otherwise
employ any Trade Secrets, Confidential Information or Confidential Customer
Information. This obligation shall not apply to any Trade Secrets or
Confidential Information (i) that shall have become generally known to
competitors of Employer (in the case of Trade Secrets) or to the public (in the
case of Confidential Information) through no act or omission of Employee, or
(ii) that shall have been disclosed to Employee by a person or entity
unaffiliated with Employer that has legitimate possession thereof in its
entirety, and possesses the unrestricted right to make such disclosure.
Employee acknowledges that Employer may be bound by contract with Employer's
customers not to disclose any Confidential Customer Information. Accordingly,
Employee agrees to indemnify and hold Employer harmless from and against any
claim for damages, including attorneys' fees and court costs, brought by
Employer's customers or any other interested party, and against any other claim
based on contract, tort or common law indemnity arising out of his unauthorized
disclosure of Confidential Customer Information in violation of this Section 7.
8. Return of Material to Employer. Employee will deliver to
Employer, upon termination of Employee's employment with Employer and at any
other time upon Employer's request, all memoranda, notes, records, drawings or
other documentation, whether made or compiled by him alone or with others or
made available to him while employed by Employer, pertaining to Confidential
Customer Information, Trade Secrets, Confidential Information or other
inventions and works of Employer, and all Confidential Customer Information,
Trade Secrets, Confidential Information and other inventions and works of
Employer in his possession.
9. Noncompetition. During Employee's employment by Employer and for
a period of two (2) years after Employee's termination of employment with
Employer, Employee shall not, directly or indirectly, either individually or
jointly or on behalf of or in concert with any other person or entity, as a
proprietor, partner, shareholder, member, director, officer, employee, agent,
consultant or through any other kind of ownership (other than ownership of less
than five percent (5%) of any class of outstanding securities of any company
listed on any national securities exchange or traded in the over-the-counter
market) or in any other representative or individual capacity (a) engage in any
business or render any services to any business that is in competition with the
business of Employer in Texas, Louisiana, Oklahoma or Arkansas (the
"RESTRICTIVE AREA") so long as Employer continues to conduct business in the
Restrictive Area during such two (2) year period, (b) engage in any business
which calls upon, solicits, diverts, or takes away any customer or customers of
Employer in the Restrictive Area for the purpose of selling or attempting
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to sell to any of such customers any products similar to any products
theretofore sold or provided to any of such customers by Employer so long as
Employer continues to conduct business in the Restrictive Area during such two
(2) period, (c) solicit any present or future employee of Employer, or discuss
with any such employee termination or resignation from employment with
Employer, so that such employee may accept employment with, or engagement as a
partner, investor, shareholder or consultant with, Employee, directly or
indirectly as specified above, or (d) otherwise interfere with, disrupt or
attempt to disrupt relationships, contractual or otherwise, between Employer
and any of its lenders, customers, employees or suppliers.
10. Notice of Employment. So long as Employee is subject to the
Noncompetition provisions of Section 9, Employee shall notify Employer in
writing, within five (5) days after accepting employment with any other person,
firm or organization of the name and address of such employer and his
employment capacity with such employer.
11. Injunctive Relief. The parties recognize that irreparable damage
will result to Employer from any violation of this Agreement by Employee. The
parties expressly agree that, in addition to any and all other remedies
available to Employer for any such violation, Employer shall have the remedies
of restraining order and injunction, and any such other equitable relief as may
be declared or issued by a court to enforce the provisions of Sections 6
through 10 above, without posting any bond that might be required, and Employee
agrees not to claim in any such equitable proceedings that a remedy at law is
available to Employer. The existence of any claim or cause of action by
Employee against Employer, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Employer of any provision
hereof. Notwithstanding anything contained herein to the contrary, and if and
only if a provision of this type contained in this Section is enforceable in
the jurisdiction in question, if any one or more of the provisions contained in
Sections 6 through 10 shall for any reason be held to be excessively broad as
to duration, geographical scope, activity or subject, such provisions shall be
construed by limiting and reducing it so as to be enforceable to the extent
compatible with the applicable law in such jurisdiction as it shall then
appear. Employee agrees to reimburse Employer for any and all expenses
incurred, including attorneys' fees, expenses, court costs and settlement
costs, in connection with the enforcement of its rights and Employee's
obligations under this Agreement.
12. Termination. Employment of Employee under this Agreement may be
terminated:
(a) By Employee's voluntary resignation after giving at least
60 days' written notice.
(b) By Employer With Cause. For purposes of this Agreement
"WITH CAUSE" shall mean:
(i) Employee's becoming Totally Disabled. For the
purposes of this Agreement, Employee will be "TOTALLY DISABLED"
if he is "totally disabled" as defined in and for the period
necessary to qualify for benefits under any long-term disability
income insurance policy then in effect that is applicable to
executive employees of Employer;
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(ii) the dissolution and liquidation of Employer, other
than as part of a reorganization, merger, consolidation or sale
of all or substantially all of the assets of Employer whereby
Employer's business is continued;
(iii) a conviction of or a plea of guilty or nolo
contendere by Employee to a felony involving fraud, embezzlement,
theft, or dishonesty or other criminal conduct;
(iv) habitual neglect of Employee's duties or failure by
Employee to perform or observe any substantial obligation of such
employment that is not remedied within thirty (30) days after
written notice thereof from Employer; or
(v) any material breach by Employee of this Agreement
which is not cured within thirty (30) days after written notice
thereof from Employer.
(c) By Employer Without Cause. For purposes of this
Agreement, "WITHOUT CAUSE" shall mean Employee's termination by Employer
for any reason other than (i) those set forth in subsections 12(a) and
12(b), or (ii) the termination of this Agreement due to the expiration
of the term set forth in Section 3(a).
(d) By Employee due to any material breach by Employer of this
Agreement which is not cured within thirty (30) days after written
notice thereof from Employee.
In the event of termination of this Agreement other than for death, Employee
shall resign from all positions held in Employer, including without limitation
any position as a director, officer, agent, trustee or consultant of Employer
or any affiliate of Employer. Except as provided in Section 9, termination of
the employment of Employee shall not terminate or otherwise affect the party's
respective obligations under Sections 6 through 14 of this Agreement.
13. Severance Benefits.
(a) VOLUNTARY RESIGNATION: In the event this Agreement is
terminated due to Employee's voluntary resignation, Employee shall not
be entitled to any severance benefits whatsoever.
(b) DEATH: In the event this Agreement is terminated because
of Employee's death, Employer shall continue to pay to Employee's estate
or his heirs, as applicable,
(i) his full Base Salary through the first anniversary
of the date of Employee's death; and
(ii) one-half of his full Base Salary for the period
commencing on the first anniversary of the date of his death and
continuing to the second anniversary of the date of his death.
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Except as otherwise provided for in this Section 13(b), Employer shall
have no further obligations to Employee's estate or his heirs, as
applicable, pursuant to the terms of this Agreement following the death
of Employee.
(c) TERMINATION WITH CAUSE: In the event this Agreement is
terminated With Cause, Employee shall be entitled to (i) his full Base
Salary through his date of termination (ii) any benefits or awards which
pursuant to the terms of any compensation or benefit plan have been
earned or become payable as of Employee's date of termination, but which
have not yet been paid to Employee, and (iii) the amount due to Employee
for any expenses for which Employee shall not yet have been reimbursed
by Employer as of Employee's date of termination. Except as otherwise
provided for in the immediately preceding sentence, Employee shall not
be entitled to further compensation as of the date of termination of
this Agreement With Cause (specifically including, but not limited to,
any unearned bonuses). Any termination of this Agreement With Cause
shall be without prejudice to any right or remedy to which Employee may
be entitled either at law, in equity or under this Agreement.
(d) TERMINATION WITHOUT CAUSE: In the event this Agreement is
terminated Without Cause or by Employee pursuant to Section 12(d),
Employee shall be entitled to receive as the full amount due Employee
from Employer hereunder a severance benefit in an amount equal to (i)
the Base Salary for the then remaining term of Employee's employment
determined in accordance with Section 3(a), payable in equal monthly
installments until the each of such term, plus (ii) the Annual Bonus, if
any, which would have otherwise been paid to Employee during each year
of the remaining term of Employee's employment.
14. Waiver. A party's failure to insist on compliance or enforcement
of any provision of this Agreement shall not affect the validity or
enforceability or constitute a waiver of future enforcement of that provision
or of any other provision of this Agreement by that party or any other party.
15. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF TEXAS.
16. Severability. The invalidity or unenforceability of any
provision in the Agreement shall not in any way affect the validity or
enforceability of any other provision and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision had never been in
the Agreement.
17. Notice. Any and all notices required or permitted herein shall
be deemed delivered if delivered personally or if mailed by registered or
certified mail to such party at the address hereinafter set forth following
such party's signature, or at such other address or addresses as either party
may hereafter designate in writing to the other.
18. Assignment. This Agreement, together with any amendments hereto,
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors,
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assigns, heirs and personal representatives, except that the rights, benefits
and obligations of Employee under this Agreement are personal in nature and may
not be assigned without the prior written consent of Employer.
19. Amendments. This Agreement may be amended at any time by mutual
consent of the parties hereto, with any such amendment to be invalid unless in
writing, signed by the parties.
20. Entire Agreement. This Agreement contains the entire agreement
and understanding by and between the parties to the employment of Employee, and
no representations, promises, agreements, or understandings, written or oral,
relating to the employment of Employee by Employer not contained herein shall
be of any force or effect.
21. References and Headings. In construing this Agreement, feminine
or number pronouns shall be substituted for those masculine in form and vice
versa, and plural terms shall be substituted for singular and singular for
plural in any place in which the context so requires. The various headings in
this Agreement are inserted for convenience only and are not part of the
Agreement.
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IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement as of the day and year first above written.
SOUTHERN FOODS GROUP, L.P.
By: SFG Management Limited Liability
Company, sole general partner
By: /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, Assistant
Secretary
Address for Notice Purposes:
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
EMPLOYEE:
/s/ XXXX XXXXXXXX
---------------------------------------------
Xxxx Xxxxxxxx
Address for Notice Purposes:
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
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