EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 1, 1998 between R. XXXXXX
XXXXXXX (the "Executive") and RONNYBROOK FARM DAIRY, INC., a New York
corporation (the "Company").
WHEREAS, the Executive is presently employed by the Company; and
WHEREAS, the Executive is willing to enter into an agreement with the
Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Term of Agreement. Subject to the terms and conditions hereof, the term
of employment of the Executive under this Employment Agreement shall be for the
period commencing on January 1, 1998 (the "Commencement Date") and terminating
on December 31, 2000, unless sooner terminated as provided in accordance with
the provisions of Section 6. (Such term of employment is herein sometimes called
the "Employment Term").
2. Employment. As of the Commencement Date, the Company hereby agrees to
employ the Executive as Vice President - Production, Chief Operating Officer and
Treasurer and the Executive hereby accepts such employment and agrees to perform
his duties and responsibilities hereunder in accordance with the terms and
conditions hereinafter set forth.
3. Duties and Responsibilities. Executive shall be Vice President -
Production, Chief Operating Officer and Treasurer of the Company during the
Employment Term. Executive shall report to and be subject to the direction of
the Board of Directors and shall perform such duties consistent with his title
and position as may be assigned to him from time to time by the Board of
Directors. During the Employment Term, Executive shall devote his full time,
skill, energy and attention to the business of the Company and shall perform his
duties in a diligent, trustworthy, loyal and businesslike manner.
4. Compensation. Commencing January 1, 1998, the Company shall pay to
Executive a salary at the annual rate of $9,360. Subject to the closing of the
Company's proposed initial public offering (the "IPO"), the Company shall pay to
Executive a salary at the annual rate of (i) $30,000 commencing on the closing
date of the Company's IPO, (ii) $75,000 commencing on January 1, 1999, and (iii)
$100,000 commencing on January 1, 2000. Salary shall be payable in such manner
as the Company shall determine, but in no event any less often than monthly,
less withholding required by law and other deductions agreed to by Executive.
5. Expenses and Benefits.
(a) The Company shall, consistent with its policy of reporting and
reimbursement of business expenses, reimburse Executive for such ordinary and
necessary business related expenses as shall be incurred by Executive in the
course of the performance of his duties under this Agreement.
(b) Executive shall be eligible to participate to the extent that he
qualifies in all benefit plans, including without limitation, pension, term life
insurance, hospitalization, medical insurance and disability plans as are made
available from time-to-time to executives of the Company.
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(c) Executive shall be entitled to three (3) weeks of paid vacation
annually, which shall be taken in accordance with the procedures of the Company
in effect from time-to-time.
6. Termination.
(a) The Company shall have the right to terminate the employment of
the Executive under this Agreement for disability in the event Executive suffers
an injury, illness or incapacity of such character as to substantially disable
him from performing his duties hereunder for a period of more one hundred eighty
(180) consecutive days upon the Company giving at last thirty (30) days written
notice of termination; provided, however, that if the Executive is eligible to
receive disability payments pursuant to a disability insurance policy paid for
by the Company, the Executive shall assign such benefits to the Company for all
periods as to which he is receiving full payment under this Agreement.
(b) This Agreement shall terminate upon the death of Executive.
(c) The Company may terminate this Agreement at any time because of
(i) Executive's material breach of any term of this Agreement or (ii) the
willful engaging by the Executive in misconduct which is materially injurious to
the Company, monetarily or otherwise; provided, in each case, however, that the
Company shall not terminate this Agreement pursuant to this Section 6(c) unless
the Company shall first have delivered to the Executive a notice which
specifically identifies such breach or misconduct and the Executive shall not
have cured the same within fifteen (15) days after receipt of such notice.
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7. Revealing of Trade Secrets, etc. Executive acknowledges the interest of
the Company in maintaining the confidentiality of information related to its
business and shall not at any time during the Employment Term or thereafter,
directly or indirectly, reveal or cause to be revealed to any person or entity
the supplier lists, customer lists or other confidential business information of
the Company; provided, however, that the parties acknowledge that it is not the
intention of this paragraph to include within its subject matter (a) information
not proprietary to the Company, (b) information which is then in the public
domain, or (c) information required to be disclosed by law.
8. Covenants Not to Compete. During the Employment Term and for a period
of one year thereafter, the Executive shall not, directly or indirectly: (i) in
any manner, engage in any business which competes with any business conducted by
the Company and will not directly or indirectly own, manage, operate, join,
control or participate in the ownership, management, operation or control of, or
be employed by or connected in any manner with any corporation, firm or business
that is so engaged, (provided, however, that nothing herein shall prohibit the
Executive from owning not more than three (3%) percent of the outstanding stock
of any publicly held corporation), (ii) persuade or attempt to persuade any
employee of the Company to leave the employ of the Company or to become employed
by any other entity or (iii) persuade or attempt to persuade any current client
or former client with, or to reduce the amount of business it does or intends or
anticipates doing with the Company.
9. Opportunities. During his employment with the Company, and for one year
thereafter, Executive shall not take any action which might divert from the
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Company any opportunity learned about by him during his employment with the
Company (including without limitation during the Employment Term) which would be
within the scope of any of the businesses then engaged in or planned to be
engaged in by the Company.
10. Survival. In the event that this Agreement shall be terminated, then
notwithstanding such termination, the obligations of Executive pursuant to
Sections 7 and 8 of this Agreement shall survive such termination.
11. Contents of Agreement, Parties in Interest, Assignment, etc. This
Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Executive hereunder which are of
a personal nature shall neither be assigned nor transferred in whole or in part
by Executive. This Agreement shall not be amended except by a written instrument
duly executed by the parties.
12. Severability. If any term or provision of this Agreement shall be held
to be invalid or unenforceable for any reason, such term or provision shall be
ineffective to the extent of such invalidity or unenforceabiltiy without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforcable term or provision had not been
contained herein.
13. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally or five (5) days after
dispatch by
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registered or certified mail, postage prepaid, return receipt requested, to the
party to whom the same is so given or made:
If to the Company
addressed to: Ronnybrook Farm Dairy, Inc.
Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
with a copy to: Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxx
If to Executive
addressed to: R. Xxxxxx Xxxxxxx
Xxxxxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
or to such other address as the one party shall specify to the other party in
writing.
15. Counterparts and Headings. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all which
together shall constitute one and the same instrument. All headings are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
RONNYBROOK FARM DAIRY, INC.
By: /s/ Xxxxxxx Xxxxxxx
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/s/ R. Xxxxxx Xxxxxxx
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R. Xxxxxx Xxxxxxx
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