EXHIBIT 10.95
Xx. Xxxxx X. Xxxxxxxxxx
Page 4
May 1, 1999
May 1, 1999
Xx. Xxxxx X. Xxxxxxxxxx
c/o Specialty Foods Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Dear Xxxxx:
We are pleased to inform you that you are eligible to
participate in a retention bonus plan that has been adopted by
Specialty Foods Corporation (the "Company"). Under this plan,
you will receive bonus payments in consideration for your
continued employment by the Company or any affiliate or
subsidiary of the Company (collectively, the "SFC Companies").
This Agreement amends and restates that certain Retention Bonus
Agreement between you and the Company dated as of March 15, 1999.
The terms and conditions of this bonus are set forth below.
1. Retention Bonus Payment.
(a) Subject to the provisions of Section 2, you are
eligible to receive a one-time bonus (the "Retention Bonus") in
an amount equal to the aggregate gross amount of cash payments
which you receive from the SFC Companies for annual bonus
payments covering the fiscal years 1999 and 2000. In no event
shall any payments made to you (x) for base salary or (y) or
under any other plan, agreement, award or bonus, other than the
Annual Bonus Plan, be included in calculating the amount of the
Retention Bonus.
(b) The entire amount of the Retention Bonus shall be
paid on the earlier of (x) the date occurring ninety (90) days
after a Change of Control of SFAC or the Company and (y) March
31, 2001.
2. Conditions. The payment of all or any part of the
Retention Bonus potentially payable to you hereunder is expressly
conditioned upon your continued employment with the Company
through March 31, 2001, unless you are terminated by the Company
prior to such date for other than Cause or you Voluntarily
Terminate with Good Reason, as each such term is defined in your
Employment Agreement in effect with SFC on the date hereof.
3. Continued Employment. This Agreement is not a contract
of employment. Nothing expressed or implied in this Agreement
shall create any right or duty of your continued employment by
the Company or its successor. Except as otherwise provided in
your Employment Agreement in effect with SFC on the date hereof,
the Company reserves all rights to cause your employment to be
terminated at any time with or without cause.
4. Unfunded Plan. The Company's obligations under this
Agreement shall be unfunded. Neither the Company nor any of its
subsidiaries shall be required to establish any special or
separate fund or to make any other segregation of assets to
assure the payment of any award under this Agreement.
5. Successors Bound. The rights and obligations of the
Company hereunder shall inure to the benefit of and be binding
upon the successors of the Company.
6. Assignment. You shall not assign any rights or
benefits granted to you by the terms of this Agreement or
encumber in any way your interests herein; provided, however,
that in the event of your death, any payments then due and owing
will be made when due to the legal representative of your estate.
7. Notices and Other Documents. All payments, requests,
notices and the like may be made to you by mailing the same to
you at the address set forth below or at such other address as
you may file in writing with the Company for that purpose.
Notices, requests and the like sent by you to the Company shall
be sufficient if mailed to Specialty Foods Corporation, 000 Xxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: Chief
Financial Officer, or to such other address as the Company may
furnish to you for this purpose from time to time in writing.
8. Employment Taxes. All payments made under this
Agreement shall be subject to withholding tax, other employment
taxes and other withholds and deductions as required by
applicable law or regulation, as in effect from time to time.
9. Effect of Agreement. This Agreement shall have a term
expiring on June 30, 2001, at which time it shall expire and be
of no further force or effect, except to the extent that rights
of payment have accrued to you hereunder prior to such date.
10. Governing Law/Jurisdiction. The substantive law (and
not the law of conflicts) of the State of Illinois will govern
all questions concerning the construction, validity and
interpretation of this Agreement and the performance of the
obligations imposed by this Agreement. The parties hereby waive
their rights to request or demand a trial by jury in the event
controversy arises under this Agreement.
11. Definition of Change of Control. "Change of Control"
shall mean (i) with respect to Specialty Foods Acquisition
Corporation ("SFAC") or the Company, a transaction pursuant to
which a person or group (as such term is used in Section 13(d)(3)
of the Securities Exchange Act of 1934), other than Acadia
Partners, L.P., Keystone, Inc., HWP Specialty Partners, L.P. and
their respective "affiliates" (as such term is defined in Section
2.1 of the Principal Stockholders Agreement, dated as of August
16, 1993, among SFAC and its principal stockholders) (such person
or group being a "Non-Affiliate"), acquires the collective
ability to designate directly or indirectly a majority of the
members of the board of directors of SFAC or SFC (whether by
contract or otherwise), and (ii) with respect to the Company, a
transaction (including a sale, merger, or other similar
transaction, but excluding any transaction among only SFAC, SFC
and/or their subsidiaries) (x) pursuant to which all or
substantially all the assets of the Company (as exist on the date
hereof) are sold to Non-Affiliates, (y) pursuant to which Non-
Affiliates acquire the collective ability to designate directly
or indirectly a majority of the Board of Directors of Holdings or
the Company (whether by contract or otherwise) or (z) which the
committee determines, in its discretion, to constitute a Change
of Control.
12. Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the
subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement
has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any
illegal representation, promise or inducement not so set forth.
13. Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or
covenants hereof may be waived, only by a written instrument
executed by the parties hereto, or in the case of a waiver, by
the party waiving compliance. The failure of a party at any time
or times to require performance of any provision hereof shall in
no manner affect the right at a later time to enforce the same.
No waiver by either party of the breach of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in
this Agreement.
14. Headings. The section headings contained herein are
for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
If the foregoing correctly sets forth your understanding of
the Agreement between us, please sign both copies of this
Agreement in the place indicated below and return one copy to us.
Very truly yours,
SPECIALTY FOODS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
Agreed to this 1st day of May, 1999
/s/ Xxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxxx
Address:______________________
