Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this day of , by and
------ -----------------
between NABISCO, INC., a Delaware corporation (the "Company") and
--------------
(the "Executive").
RECITALS
--------
WHEREAS, in order to provide the Executive continued incentives to remain
in the services of the Company or its subsidiaries, the Company desires to
provide the Executive with compensation security under the conditions set forth
in this Agreement should his employment with the Company or its designated
subsidiaries for any reason be terminated without cause by the Company during
the term of this Agreement;
NOW, THEREFORE, it is hereby agreed by and between the parties as follows:
1. Employment. The Executive agrees to devote his working time exclusively to
----------
the performance of such services of the Company or its subsidiaries as may be
assigned to him from time to time and to perform such services faithfully and to
the best of his ability except as the provisions of subsection 4(b)(b) shall
apply.
2. Term of Agreement. This Agreement shall commence on the date hereof and
-----------------
shall remain in effect so long as the Executive remains employed by the Company,
any of its subsidiaries or any successor organization.
3. Termination of Employment Without Compensation Continuance.
------------------------
(a) Termination for Cause. This Agreement shall immediately be terminated
and neither party shall have any obligation hereunder if the Executive's
employment is terminated for "cause." Termination for cause shall arise where
termination results from (a) criminal dishonesty, (b) deliberate and continual
refusal to perform employment duties on substantially a full-time basis, (c)
deliberate and continual refusal to act in accordance with any specific lawful
instructions of a majority of the Board of Directors of the Company, or (d)
deliberate misconduct which could be materially damaging to the Company without
reasonable good faith belief by the Executive that such conduct was in the best
interests of the Company.
(b) Voluntary Termination of Employment by the Executive. The Executive
reserves the right to voluntarily terminate his employment at any time for any
reason; provided, he shall give the Company not less than three (3) months
written notice thereof, unless the Company consents to a shorter notice period.
Three (3) months after the Company receives such notice, this Agreement shall
cease, all obligations of the Company hereunder shall be cancelled
automatically, and the Executive shall not be entitled to any
form of Compensation Continuance under this Agreement, including that described
in Section 5 below.
(c) Disability. The event of physical or mental disability of a nature
that entitles the Executive to benefits under the Company's Long-Term Disability
Plan is not a termination of employment under any section of this Agreement. As
such, disability shall not qualify the Executive for the Compensation
Continuance described herein unless the Executive is terminated under Section
4(a).
(d) Death. In the event of the Executive's death prior to involuntary
termination, this Agreement will be null and void.
4. Termination With Compensation Continuance.
-----------------------------------------
(a) Involuntary Termination Without Cause by the Company. The Company
reserves the right to terminate the employment of the Executive at any time for
any reason subject to providing the compensation and benefits described herein.
Except as provided in Section 6, the Company will provide the Executive with the
Compensation Continuance described in Section 5 hereof if the Executive is
involuntarily separated from active employment without cause by the Company
("Involuntary Termination"). Involuntary Termination shall not include the
divestiture of the Operating Company employing the Executive, and the
obligations of the Company under this Agreement shall be assigned to the
Operating Company, or its successors or acquiror, in connection with the
divestiture of either all, or substantially all, the shares or assets of such
Operating Company. Nor shall Involuntary Termination include transfer of the
Executive's employment to any company that owns at least 50% of the voting power
of the Company, or any subsidiary of such company (an "Affiliated Company");
provided, that the obligations of the Company under this Agreement are assigned
to such employing Affiliated Company. The transfer of the Executive's
employment to any company that owns at least 50% of the voting power of the
Company, or any subsidiary of such company (an "Affiliated Company") shall not
be deemed an Involuntary Termination, if and only if such transfer would not be
deemed an Involuntary Termination under Section 4(b) hereof and the obligations
of the Company under this Agreement are assigned to such employing Affiliated
Company and the Company agrees to guarantee the obligations of such Affiliated
Company under this Agreement.
(b) Deemed Involuntary Termination Without Cause by the Company.
Involuntary Termination shall be deemed to occur if the Executive voluntarily
terminates employment after: (a) the total amount of his base salary and
targeted awards under the Long-Term Incentive Plan and the Annual Incentive
Award Plan (or successors thereto) is at any time reduced by more than 20%
without the Executive's consent, provided, however, nothing herein shall be
construed to guarantee the Executive's target award if performance is below
target, (b) his job responsibilities are substantially reduced in importance
without the Executive's consent, or (c) he, without his consent, is at any time
required as a condition of continued employment to relocated from his then
current place of employment a distance equal to or greater than the mileage
threshold required by the IRS for a moving expense deduction. Unless the
Executive provides written notification of his non-consent to any of
the events in (a) or (b) or (c) above within 90 days after the occurrence of
such events, the Executive shall be deemed to have consented to the occurrence
of such event or events and no deemed Involuntary Termination shall occur. If
the Executive provides written notice of his non-consent to any of the events in
(a) or (b) or (c) above within 90 days after the occurrence of such events, he
shall be deemed to have been Involuntarily Terminated ninety (90) days after
receipt of such written notice by the Company.
5. Compensation Continuance Under this Agreement.
---------------------------------------------
(a) Compensation Period. If at any time during the term of this Agreement
the Executive has an Involuntary Termination pursuant to Section 4, he will be
provided with Compensation Continuance as provided in this Section 5 for a
period of three (3) years commencing with the effective date of such Involuntary
Termination (the "Compensation Period").
(b) Cash Compensation.
(i) The Executive will be entitled to such compensation equal to two
(2) years pay, calculated as described below, payable in equal monthly
installments over the three (3) year Compensation Period, each installment
representing two-thirds (2/3) of the Executive's full pay for such period. The
aggregate cash compensation will be calculated as twice the sum of (A) plus (B),
where (A) is the Executive's highest annual rate of base salary in effect during
the twelve (12) month period prior to his involuntary termination and (B) is the
target amount of his award under the Company's Annual Incentive Award Plan (or
successor Short-Term Incentive Plan) for the calendar year in which his
employment terminated.
(ii) Cash compensation paid pursuant to this Section 5(b) shall be
payable in equal monthly installments over the Compensation Period, and shall be
subject to regular payroll deductions.
(iii) For purposes of calculating Average Final Compensation for
pension benefits, to the extent permitted by law the Executive will be deemed to
be paid during the entire Compensation Period at the annual rate of cash
compensation equal to the sum of the amounts determined pursuant to Sections
5(b)(i)(A) and (B).
(c) Short Term Incentive Plan Awards. The Executive will be paid at the
time of Involuntary Termination 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 Involuntary Termination occurs, prorated for
the Executive's active employment during such year and adjusted for performance.
Except as stated in the foregoing sentence, all provisions of the Annual
Incentive Award Plan (or successor thereto) shall be applicable to the
Executive.
(d) Long Term Incentive Plan Awards. The treatment of long term incentive
awards during the Compensation period shall be determined pursuant to the term
of the
appropriate long term incentive award plan and the specific long term incentive
award agreement; provided, however, that for such purposes, the Compensation
Period shall be treated as a period of salary and benefit continuance.
(e) Welfare Benefits. During the Compensation Period, the Executive will
be provided the welfare benefits afforded by the Employee Benefit Plans and
programs maintained by the Company in which he participated immediately prior to
his Involuntary Termination, except that he will not be eligible to participate
in the Company's short-term or long-term disability plans.
(f) Internal Revenue Code Qualified Defined Benefit Plans. If the
Executive was participating in an IRC Section 401(a) defined benefit plan prior
to Involuntary Termination, he will, to the extent permitted by law, continue to
accrue benefits under such plan during the Compensation Period.
(g) Internal Revenue Code Qualified Defined Contribution Plans. If the
Executive was participating in an IRC Section 401(a) defined contribution plan
prior to separation from active employment, he may, to the extent permitted by
law, continue to so participate pursuant to the terms of that plan during the
Compensation Period.
(h) ERISA Excess Plans. The Executive shall be eligible to participate
during the Compensation Period in any plan of the Company adopted for the
purpose of restoring benefits under the Qualified Defined Benefit and Defined
Contribution Plans of the Company which would otherwise be reduced by the
limitations so imposed by Section 415 and other sections of the IRC.
(i) Executive or Management Program. The Executive may continue to
participate in the Executive or Management Program, if a participant on the date
immediately prior to Involuntary Termination, pursuant to the terms of the
program governing inactive pay status as in effect on the date of this Agreement
or as each respective provision of the Program may be improved from time to time
or as additional provisions become effective.
(j) Outplacement. During the Compensation Period, the Executive will be
provided with outplacement counseling services at Company expense; provided,
however, this expense shall not exceed 18% of the amount of cash Compensation
Continuance paid in a single calendar year. This counseling shall include, but
is not limited to, skill assessment, job market analysis, resume preparation,
interviewing skills, job search techniques and negotiating.
6. Conditions on Compensation Continuance.
--------------------------------------
(a) Availability and Consulting. During the Compensation Period the
Executive shall provide consulting services to the Company on a reasonable basis
subject to appropriate notice and reimbursement of all travel and other
expenses. During the first six (6) months of the Compensation Period the
Executive may be required by the Company to provide up to fifteen (15) days of
consultation during normal business hours and business
days. When and if the Executive becomes employed on a full-time basis, either
with another company or on a self-employed basis, his obligation to provide
consulting services shall be limited by the requirements of such employment, and
under appropriate circumstances, may be restricted to telephone conference.
(b) Confidentiality and Conduct. The Executive warrants that he will not
disclose to any other person any confidential information or trade secrets
concerning the Company or any of its subsidiaries at any time during or after
the Compensation Period. The Executive will at all times refrain from taking
any action or making any statements, written or oral, which are intended to and
do disparage the goodwill or reputation of the Company, its directors, officers
or executives or which could adversely affect the morale of Company employees.
(c) Breach of Conditions. In the event that the Executive unreasonably
refuses to provide consulting services in accordance with paragraph (a) above or
materially violates the terms and conditions of paragraph (b) above, the Company
may, at its election upon ten (10) days notice, terminate the Compensation
Period, discontinue cash compensation payments and employee benefits coverage
and cancel any outstanding Long Term Incentive Plan awards (if permitted under
the terms of such awards). 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 paragraph (b) above.
(d) Non-Competition. The Compensation Period shall be terminated if the
Executive, without the Company's written approval, accepts a substantially
similar or higher executive position, paying a substantially comparable or
greater level of cash compensation, with any other company conducting a business
which is substantially competitive with a business conducted by the Company.
Alternatively, the Company may, in its discretion, appropriately reduce the
Executive's cash compensation and employee benefits coverage for the balance of
the Compensation Period.
(e) Employment With Another Employer During Compensation Period. Except
as otherwise provided in this Section 6, if the Executive commences employment
with another employer during the Compensation Period, he will continue to
receive the compensation continuance provided under Section 5 for the balance of
the Compensation Period, except that, unless otherwise required by law, benefits
under the Company's Employee Benefits Plans, including the Executive or
Management Program, if applicable, shall be appropriately terminated or offset
to the extent provided by the other employer.
(f) Other Severance Benefits. The Executive is entitled to no other form
of severance benefits, including benefits otherwise payable under any of the
Company's regular severance policies, other than those set forth elsewhere in
this Agreement. The Executive will at the time of termination of employment be
eligible for any form of post-retirement benefit provided under the Company's
qualified Employee Benefits Plans, including retiree medical benefits, as any
other employee upon retirement with the same age and service. Nothing contained
in this Agreement shall adversely affect the Executive's rights to accrued
vested pension benefits or his right to receive previously deferred awards under
any of the
Company's incentive award plans.
(g) Release and Waiver of Claims. In consideration of the compensation
and benefits continuance available pursuant to this Agreement, the Executive,
except as otherwise expressly provided in this Agreement, unconditionally
releases the Company and its subsidiaries, any Affiliated Companies, their
directors, officers, employees and stockholders, or any of them, from any and
all claims, liabilities, and obligations of any nature pertaining to termination
of employment including, but not limited to, (a) any claims under federal, state
or local laws prohibiting age discrimination, or (b) any claims growing out of
any alleged legal restrictions on the Company's right to terminate its
employees, such as any alleged implied contract of employment or termination
contrary to public policy.
(h) Death. In the event of the Executive's death subsequent to
commencement of this Compensation Period hereunder, the balance of Compensation
Continuance will be paid to his beneficiary in a lump sum. "Beneficiary" shall
mean the Executive's designated beneficiary under his Executive Program life
insurance, or, if not so eligible, his core life insurance benefit under the
Company's plans.
7. General Provisions.
------------------
(a) Limited Right of Appeal.
(i) If the Executive is advised in writing that he is being
terminated for cause and within fifteen (15) days thereafter submits to the
Chief Executive Officer of the Company a written objection to such a
determination, Section 3(a) will not be applicable unless the Compensation
Committee of the Board of Directors of the Company at or before its next
regularly scheduled meeting determines by majority vote that the Executive has
been terminated for cause.
(ii) If the Executive's Compensation Period is terminated pursuant to
Section 6, he may, within fifteen (15) days after mailing of notice thereof to
him, submit to the Chief Executive Officer of the Company a written objection to
such termination. In such event, the Compensation Committee of the Board of
Directors at or before its next regularly scheduled meeting must determine by
majority vote that termination of the Compensation Period was appropriate or,
failing that, the Compensation Period must be reinstated with full retroactive
effect.
(b) Notices. All notices hereunder shall be in writing and deemed
properly given if delivered by hand and receipted or if mailed by registered
mail, return receipt requested. Notices to the Company shall be directed to the
Corporate Secretary at the Company's headquarters offices. Notices to the
Executives shall be directed to his last known home address.
(c) Limited Waiver. The waiver by the Company 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.
(d) No Assignment. No right, benefit or interest hereunder shall be
subject to assignment, encumbrance, charge, pledge, hypothecation or set off by
Executive in respect of any claim, debt or obligation, or similar process. The
Company, however, may assign its obligations hereunder in the event of the
transfer of the Executive's employment to an Affiliated Company or the
divestiture (whether by the sale of shares or assets) of the Operating Company
employing the Executive.
(e) Amendment. This Agreement may not be amended, modified or canceled
except by written agreement of the parties.
(f) 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.
(g) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Executive, the Company, its affiliates, and any successor
organization or organizations which shall succeed to substantially all of the
business and property of the Company, whether by means of merger, consolidation,
acquisition of substantially all of the assets of the Company or otherwise,
including by operation of law.
(h) 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.
(i) Governing Law. This Agreement has been made in and shall be governed
and construed in accordance with the laws of the State of Delaware.
(j) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the matters covered hereby.
This Agreement supersedes and replaces any prior agreement with respect to
employment, compensation continuation and the matters contained in this
Agreement which the Executive may have had with the Company or any affiliate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
NABISCO, INC.
By:
---------------------------------
Executive Vice President
and Chief Personnel Officer
---------------------------------
[Executive]
