Exhibit 10.4
Conformed Copy
RETENTION AGREEMENT
THIS AGREEMENT, made as of this 5th day of October,
1994 (the "Effective Date"), by and between DEL MONTE
CORPORATION, a New York corporation (the "Company") and Xxxxx X.
Xxxxxxxx (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 hereby agree as follows:
1. Employment. The Executive agrees to devote his
working time, on substantially a full-time basis, to the
performance of 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 affiliates, or any successor
organization.
2. Termination for Cause: Resignation for Good Reason:
Termination by Reason of Death. (a) This Agreement shall be
terminated immediately and neither party shall have any
obligation hereunder, except as so provided herein, 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)
dishonesty, (ii) deliberate and continual refusal to perform
employment duties on substantially a full-time basis; (iii)
failure 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
(iv) 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) Resignation for "Good Reason" shall mean the
resignation of the Executive after: (i) a reduction without the
Executive's consent in the Executive's salary or the bonus that
the Executive is eligible to earn under the Company's annual cash
bonus plan (or successor plan thereto); provided, however, that
nothing herein shall be construed to guarantee
the Executive's bonus for any year if the applicable performance
targets are not met; and provided, further, that it shall not
constitute Good Reason hereunder if the Company makes an
appropriate pro rata adjustment to the applicable bonus and
targets under the annual cash bonus plan in the event of a change
in the Company's fiscal year; (ii) a material reduction without
the Executive's consent in the aggregate welfare benefits
provided to the Executive pursuant to the welfare plans, programs
and arrangements in which the Executive is eligible to
participate; or (iii) a material reduction without the
Executive's consent in the Executive's job title or
responsibilities. Unless the Executive provides written
notification of an event described in clauses (i) through (iii)
above within ninety (90) days after the Executive knows or has
reason to know of the occurrence of any such event, the Executive
shall be deemed to have consented thereto and such event shall no
longer constitute Good Reason for purposes of this Agreement. If
the Executive provides such written notice to the Company, the
Company shall have ten (10) business days from the date of
receipt of such notice to effect a cure of the event described
therein and, upon cure thereof by the Company to the reasonable
satisfaction of the Executive, such event shall no longer
constitute Good Reason for purposes of this Agreement.
(d) 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 (other than
pursuant to section 2(c)), this Agreement shall be terminated
immediately and the Executive shall have no entitlement to any
compensation other than what has already been earned or accrued
at the time of termination.
3. Termination Without Cause.
(a) Severance Amount. If the Executive's employment is
terminated by the Company without Cause or by the Executive for
Good Reason, the Company shall pay to the Executive the following
Severance Amount. For purposes hereinafter, the Severance Period
shall mean three (3) months unless the Executive becomes entitled
to 18 months as deemed hereunder:
The Executive shall be entitled to three months of
current base pay, to be paid on the Company's regular pay days.
In addition, if the Executive executes and delivers to the
Company, on a timely basis, 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,
its subsidiaries and affiliates from all types of
employment-related claims, the Company will then provide the
Executive over an eighteen (18) month period commencing on the
date of termination the total severance amount which is 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 such termination and (B) is the target award under the
Company's annual cash bonus plan for the year in which such
termination occurs (or, if greater, the amount of the award for
the next preceding year of employment).
The Executive will also be eligible for an award under
the annual cash bonus plan of the Company, based upon the target
award for the year in which the Executive's termination without
Cause or for Good Reason occurs, prorated for the active
employment period during
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such year and adjusted for performance. Such pro rata bonus, if
any, shall be paid following the end of the normal performance
cycle.
(b) Employee Benefit Plans. In the event the Company
terminates the Executive's employment other than for Cause, or
the Executive terminates for Good Reason, 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 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 the Executive will
be subject to all changes in such plans occurring during the
Severance Period generally applicable to all employees, unless
former employees on salary continuation are specifically
excepted.
(c) Facilities. During the Severance Period, or the
first six months thereof if longer, the Executive will, at his
option, be provided with an office and secretarial services
during regular business hours at a location selected by him
subject to the consent of the Company, which shall not be
unreasonably withheld. Except as may be specifically approved,
the Executive will not be provided with the use of any other
Company facility or services during the Severance Period or at
any time thereafter.
(d) 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.
(e) 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.
(f) Fringe Benefits. During the Severance Period, the
Company will continue the Executive's participation in any
management perquisites applicable to the Executive as of the date
of such termination until the first 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, or the end of the Severance Period.
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
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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 real 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
Del Monte Foods Company, 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 tune. 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 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 notice hereunder 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: Xxxxx X. Xxxxxxxx
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 against the Company. 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 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.
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(g) Governing Law. This Agreement has been made by and
construed in accordance with the laws of the State of New York.
(h) Entire Agreement. This Agreement sets forth the
entire understanding of the parties hereto with respect to the
matters covered hereby.
(i) Headings. The headings and 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.
DEL MONTE CORPORATION
By: /s/ Xxxxxxx Xxx Xxxxxx
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Title: Senior Vice President
Executive: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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