Exhibit 10.16
PIERRE HOLDING CORP.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 11th day of May, 2004, by and between Pierre Holding Corp., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxx, a resident of the State of
Ohio ("Executive").
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its Subsidiaries to retain the
services of Executive as Senior Vice President of Sales and Marketing of the
Company and Pierre Foods, Inc., an indirect wholly-owned Subsidiary of the
Company ("Pierre Foods"); and
WHEREAS, the Company wishes to assure itself of the services of the
Executive as provided in this Agreement, and the Executive wishes to serve in
the employ of the Company and its Subsidiaries in the capacity and on the terms
and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
Section 1.1 EMPLOYMENT. As of the Effective Date, the Company hereby
employs Executive, and Executive accepts employment with the Company and its
Subsidiaries as an employee of the Company and its Subsidiaries, upon the terms
and subject to the conditions hereinafter set forth.
Section 1.2 DUTIES. Executive shall serve as Senior Vice President
of Sales and Marketing of the Company and Pierre Foods and shall (a) be
primarily responsible for all sales, marketing, and new product development
activities of the Company and its Subsidiaries, (b) develop policies, strategies
and plans to identify and capitalize on growth and profitability opportunities
within all sales divisions, and (c) train, evaluate and set performance
standards for sales and marketing division managers, develop and implement
expense budgets for marketing and sales functions, direct development of sales
plans and market and sales incentive programs, and direct and coordinate
activities of the sales and marketing personnel. Executive will report directly
to the President and Chief Executive Officer of the Company and to the Board of
Directors of the Company (the "Board"). Executive agrees to devote his best
efforts to the performance of his duties for the Company and its Subsidiaries,
and shall perform such duties in a diligent, trustworthy, and business-like
manner, all for the purpose of advancing the business of the Company and its
Subsidiaries. Executive acknowledges that his primary office location shall be
in the principal operations offices of the Company in Cincinnati, Ohio.
Executive further acknowledges that due to the nature of his duties with respect
to marketing and sales he will be required to spend considerable time away from
his office dealing with customers, vendors, and suppliers and handling marketing
promotions and new product development. For purposes of this Agreement,
Subsidiaries shall mean any corporation or other entity of which the securities
or other ownership interests having the voting power to elect a majority of the
board of directors or
other governing body are at the time of determination, owned by the Company,
directly or through one or more Subsidiaries.
ARTICLE II
TERMS OF EMPLOYMENT
Section 2.1 TERM. Except as otherwise provided in Section 2.2, the
term of Executive's employment under this Agreement shall be for one (1) year
(the "Initial Term"), beginning on the Effective Date, and shall be
automatically renewed thereafter for successive one (1) year terms (each a
"Renewal Term") unless either party gives to the other written notice no fewer
than sixty (60) days prior to the expiration of the Initial Term, or any Renewal
Term, that it does not wish to extend Executive's employment for a successive
one-year term. The Initial Term and any Renewal Term, if any, shall be referred
to herein as "the term".
Section 2.2 TERMINATION. The employment of Executive hereunder shall
terminate prior to the expiration of the term hereof in the following manner:
a. DEATH OR DISABILITY. Immediately upon the death of Executive
during the term of his employment hereunder or, at the option of the Company, in
the event of Executive's disability, upon thirty (30) days' notice to Executive.
The Executive will be considered "disabled" if, as a result of incapacity due to
physical or mental illness or injury, Executive shall be unable to perform the
material duties of his position on a full time basis for a period of two (2)
consecutive months or if the Executive shall become eligible to currently
receive disability payments under the disability policy referenced in Section
3.2e hereunder, even after reasonable accommodations for such disability or
incapacity provided by the Company and its Subsidiaries or if providing such
accommodations would be unreasonable, all as determined by the Board in its
reasonable good faith judgment. Executive shall cooperate in all respects with
the Company if a question arises as to whether he has become disabled
(including, without limitation, submitting to an examination by a medical doctor
or other health care specialist selected by the Company and authorizing such
medical doctor or such other health care specialist to discuss Executive's
condition with the Company).
b. FOR CAUSE. For "Cause" immediately upon written notice by the
Company to the Executive after compliance in full by the Company with paragraph
3 of this subsection b below. For purposes of this Agreement:
1. "CAUSE" shall mean, with respect to Executive one or more
of the following: (i) the commission of a felony or the commission of any other
act or omission involving dishonesty or fraud with respect to the Company or any
of its Subsidiaries or any of their customers or suppliers, (ii) reporting to
work under the influence of alcohol or illegal drugs, the use of illegal drugs
(whether or not at the workplace) or other repeated conduct causing the Company
or any of its Subsidiaries substantial public disgrace or disrepute or
substantial economic harm, (iii) substantial and repeated willful failure to
perform duties as reasonably directed by the Board or the Company's President
(provided that the failure shall not be related to poor job performance or the
overall underperformance of the Company), (iv) any act or omission aiding or
abetting a competitor, supplier or customer of the Company or any of its
Subsidiaries to the material disadvantage or detriment of the Company and its
Subsidiaries, (v) willful breach of
fiduciary duty, gross negligence or willful misconduct with respect to the
Company or any of its Subsidiaries or (vi) any other willful material breach of
this Agreement which is not cured to the Board's reasonable satisfaction within
15 days after written notice thereof to Executive.
2. For purposes of this subsection b, no act, or failure to
act, on the Executive's part shall be considered "willful" unless unilaterally
done by him not in good faith and without reasonable belief that his action or
omission was not in the best interest of the Company and its Subsidiaries.
3. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the entire authorized membership of the Board of
Directors at a meeting of the Board called and held for the purpose, finding
that in the good faith opinion of the Board the Executive was guilty of conduct
set forth in any of clauses (i) through (vi) of paragraph 1 above and specifying
the particulars thereof in detail.
c. WITHOUT CAUSE. At any time after commencement of employment, the
Company may, without Cause, terminate the Executive's employment, effective upon
written notice from the Company to the Executive.
d. RESIGNATION FOR GOOD REASON. By the Executive upon thirty (30)
days written notice to the Company of the resignation of the Executive for Good
Reason (as defined below). For purposes of this Agreement, the term "Good
Reason" shall mean:
1. Without his express written consent, the assignment to the
Executive of any duties materially inconsistent with his positions, duties,
responsibilities and status with the Company and its Subsidiaries as described
in Section 1.2 hereof, or a material change in his reporting responsibilities,
titles or offices, or any removal of the Executive from or any failure to
re-elect the Executive to any of such positions, except in connection with the
termination of his employment for Cause or as a result of his death or
disability or by the Executive other than for Good Reason;
2. A material breach of this Agreement by the Company which
is not cured to the Executive's reasonable satisfaction within 15 days after
written notice thereof to the Company; or
3. The relocation of the Executive's primary office from the
Cincinnati, Ohio metropolitan area without the express written consent of the
Executive.
e. RESIGNATION WITHOUT GOOD REASON. By the Executive upon thirty
(30) days written notice to the Company of resignation without Good Reason. In
such event, the provision of 4.2 hereof shall not apply unless the Company
agrees to make the payments under Section 2.3 e subject to the terms therein
(the "Non-Compete Option").
Section 2.3 OCCURRENCES UPON TERMINATION. Upon termination of the
employment term under this Agreement, Executive shall be subject to the
following:
a. CESSATION OF SALARY AND BENEFITS. The obligation of the Company
and its Subsidiaries to provide Executive all compensation and benefits as
provided herein shall discontinue at the termination date of the employment term
under this Agreement, except as otherwise required herein or by law.
b. PAYMENT OF BONUS. Except in the case of termination by the
Company for Cause and resignation by the Executive without Good Reason,
Executive, or his estate if deceased, shall be entitled to payment of any bonus
declared or granted to the Executive prior to termination which remains unpaid
as of such time and a pro rata portion of any bonus payable for the fiscal year
during which the termination occurred, based upon the portion of such fiscal
year Executive was employed by the Company or its Subsidiaries and the
performance of the Company and its Subsidiaries for the full fiscal year during
which the termination occurs.
c. SURRENDER OF COMPANY PROPERTY. Promptly upon termination of
Executive's employment, Executive or Executive's personal representative shall
return to the Company (a) all Confidential Information (hereinafter defined);
(b) all other records, designs, patents, business plans, financial statements,
manuals, memoranda, lists, correspondence, reports, records, charts, advertising
materials, and other data or property delivered to or compiled by Executive by
or on behalf of the Company and its Subsidiaries that pertain to the business of
the Company and its Subsidiaries, whether in paper, electronic, or other form;
and (c) all keys, credit cards, vehicles, and other property of the Company and
its Subsidiaries. Executive shall not retain or cause to be retained any copies
of the foregoing. Executive hereby agrees that all of the foregoing shall be and
remain the property of the Company and its Subsidiaries and be subject at all
times to its discretion and control.
d. BENEFITS. With respect to any incentive plans, deferred
compensation arrangements or other plans or programs in which the Executive is
participating at the time of termination of his employment, the Executive's
rights and benefits under each such plan shall be determined in accordance with
the terms, conditions, and limitations of the plan and any separate agreement
executed by the Executive which may then be in effect.
e. TERMINATION WITHOUT CAUSE; DEATH/DISABILITY; RESIGNATION FOR GOOD
REASON; NON-COMPETE OPTION; NONRENEWAL. During the Initial Term, or any Renewal
Term, if the Executive's employment is terminated by the Company without Cause
or the Executive voluntarily terminates his employment with the Company for Good
Reason, or Executive's employment is terminated by reason of death or
disability, or if the Company elects not to renew Executive's employment
pursuant to Section 2.1 above, or if Employee resigns without Good Reason or
elects not to renew his employment pursuant to Section 2.1 (and in either case
the Company elects the "Non-Compete Option"), then the Company shall continue to
pay to the Executive or his estate as special severance payments hereunder the
Executive's then current base salary as provided in Section 3 payable in regular
installments over a period of one year after termination in accordance with the
normal payroll practices of the Company or its Subsidiaries, but if and only if,
Executive has executed and delivered to the Company a general release (the
"RELEASE") in customary form and substance reasonably satisfactory to the
Company and the Release has become effective, and only so long as Executive has
not revoked or breached the provisions of the Release or breached the provisions
of Article IV hereof.
In addition, the Company and its Subsidiaries shall maintain in full
force and effect for the continued welfare benefit of the Executive, for the
term of this one-year period after such termination, all employee welfare
benefit plans and programs or arrangements in which the Executive was entitled
to participate immediately prior to the date of termination, provided that his
continued participation is possible under the general terms and provisions of
such plans and programs. It being understood that such employee welfare benefits
do not include club memberships or annual medical exams. In the event that the
Executive's participation in any such plan or program is barred, the Company
shall arrange to provide the Executive with benefits substantially similar to
those to which he is entitled to receive under such plans and programs. The
Company represents that it will cause to be set aside all necessary funds to
satisfy its obligations hereunder.
ARTICLE III
COMPENSATION AND BENEFITS
Section 3.1 COMPENSATION. As compensation for services rendered to
the Company and its Subsidiaries hereunder during the term of this Agreement,
the Company or a Subsidiary will compensate Executive as follows:
a. BASE SALARY. Commencing on the Effective Date hereof, the Company
shall pay the Executive an annual base salary of Two Hundred and Fifty Thousand
and No/Dollars ($250,000.00), pro rated for periods of less than 12 months, or
as increased from time to time by the Board of Directors of the Company. Such
base salary shall be paid in bi-weekly installments in accordance with the
payroll schedule followed by the Company or a Subsidiary (less applicable
withholding and other deductions). Base salary shall be reviewed and adjusted by
the Company at least annually. Notwithstanding the foregoing sentence,
Executive's base salary shall be increased annually to at least equal the CPI
increase for the prior twelve months. The Company may not reduce the Executive's
base salary at any time during the term of this Agreement.
b. BONUS. In addition to any other compensation or consideration
payable to the Executive hereunder, the Executive shall be entitled to receive
such bonuses as may be approved by the Executive Compensation Committee and
ratified by the Board based on such meritorious performance or such other
criteria measuring the performance of the Executive as may be determined from
time to time, which will be based upon the bonus program for senior executives
in place for Pierre Foods as of the date of this Agreement and subject to annual
performance goals set by the Board.
Section 3.2 BENEFITS. In addition to, and not in lieu of, base
salary, bonus or other compensation payable to the Executive, during the term of
employment hereunder, the Executive shall be entitled to participate in all of
the Company's and its Subsidiaries' employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible,
which shall include the benefits and programs set forth on EXHIBIT A hereto.
Section 3.3 REIMBURSEMENT OF EXPENSES. The Company or a Subsidiary
shall reimburse the Executive for all reasonable out-of-pocket expenses incurred
by the Executive in the course of his duties in accordance with normal Company
policies.
Section 3.4 AUTOMOBILE ALLOWANCE. The Executive shall be provided by
the Company or Subsidiary with an automobile for his use, and the associated
expenses of maintenance, repairs and fuel.
ARTICLE IV
CONFIDENTIAL INFORMATION/NON-COMPETE
COVENANT/INVENTIONS
Section 4.1 COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION.
During Executive's position with the Company and its Subsidiaries (including
Pierre Foods, Inc. prior to the Effective Date) and during the term of this
Agreement, Executive has and will become acquainted with confidential and
proprietary information of the Company and its Subsidiaries, in whatever form,
whether oral, written, or electronic including, but not limited to, manner of
operation, manufacturing processes and know-how, plant design, customer names
and representatives, customer files, customer lists, customer specifications and
requirements, product recipes, product pricing, special customer matters, sales
methods and techniques, merchandising concepts and plans, business plans,
sources of supply and vendors, terms and conditions of business relationships
with vendors, agents and brokers, promotional materials and information,
financial matters, mergers, acquisitions, personnel matters and confidential
processes, designs, formulas, ideas, plans, devices and materials and other
similar matters that are kept confidential (any and all such information being
referred to herein as "Confidential Information"). The parties agree that the
use of Confidential Information against the Company and its Subsidiaries would
seriously damage business of the Company and its Subsidiaries. Accordingly,
Executive agrees that he (individually or in concert with others) during or
after the term of this Agreement:
a. Shall not, directly or indirectly, use any Confidential
Information for any purpose other than to benefit the Company and its
Subsidiaries, except with the prior, express and written consent of the Company
or as required by law;
b. Shall not, directly or indirectly, divulge, publish or otherwise
reveal or allow to be revealed any Confidential Information as to any individual
or entity except with the prior, express and written consent of the Company or
as required by law;
c. Shall refrain from any action or conduct that might reasonably or
foreseeably be expected to compromise the confidentiality or proprietary nature
of any Confidential Information; and
d. Shall have no rights to apply for, or to obtain any patent,
copyright or other form of intellectual property protection regarding, any
Confidential Information.
This restriction shall not apply to any Confidential Information that
(i) becomes known generally to the public through no fault of the Executive;
(ii) is required by applicable law, legal process, or any order or mandate of a
court or other governmental authority to be disclosed; or (iii) is reasonably
believed by Executive, based upon the advice of legal counsel, to be required to
be disclosed in defense of a lawsuit or other legal or administrative action
brought against Executive; PROVIDED, that in the case of clauses (ii) or (iii),
Executive shall give the Company reasonable advance written notice of the
Confidential Information intended to be disclosed and
the reasons and circumstances surrounding such disclosure, in order to permit
the Company to seek a protective order or other appropriate request for
confidential treatment of the applicable Confidential Information.
Section 4.2 COVENANT NOT TO COMPETE.
a. COVENANT. Executive hereby stipulates, covenants and agrees that,
during the Restrictive Period (as defined below), he, individually or in concert
with others, shall not, directly, or indirectly, other than on behalf of the
Company and its Subsidiaries, Without the Company's prior, express and written
consent:
1. Engage in Competition (as defined below) in the Territory
(as defined below) with the Company or any Subsidiary or any of their respective
successors or assigns; or
2. Employ or solicit the employment of any individual who is
at the time or was at any time during the twelve complete calendar months
immediately preceding, an employee of the Company or any Subsidiary.
b. CERTAIN DEFINITIONS. As used in this Section, the following terms
shall have the following meanings:
1. "Business" shall mean the processing and distribution of
fully-cooked branded and private label protein and bakery products and
microwaveable sandwiches.
2. "Competition" shall mean:
(i) Engaging in the Business in the Territory with a Contact
Person;
(ii) Assisting any individual or entity, whether in a
financial, managerial, employment, advisory or other material capacity, to
engage in the Business in the Territory with a Contact Person; or
(iii) Owning any interest in, or organizing an entity that
engages in, the Business in the Territory with a Contact Person; provided,
however, that nothing herein shall preclude Executive, directly or indirectly,
from holding not more than one percent of the outstanding shares of common stock
of any company whose shares of common stock are listed on a national securities
exchange or authorized for quotation by NASDAQ.
3. "Contact Person" shall be (i) any customer, vendor,
supplier, agent, distributor or broker having a principal manufacturing plant or
principal office located within the Territory with which or with whom the
Executive has had contact on behalf of the Company or any Subsidiary at any time
during the eighteen (18) month period preceding the Termination Date, or (ii)
any customer, agent, distributor or broker having a principal manufacturing
plant or principal office located in the Territory doing business with the
Company or any Subsidiary within the eighteen (18) months preceding the
Termination Date who or which made or brokered purchases of product from the
Company or any Subsidiary or made or brokered product on behalf of the Company
or any Subsidiary which purchases or sales were in excess of 3% of the revenues
of the Company or any Subsidiary during such period.
4. "Restrictive Period" shall mean the one-year period
beginning on the Termination Date.
5. "Territory" shall mean all fifty states in the United
States, the District of Columbia and all possessions of the United States and
all provinces of Canada. Executive acknowledges that the Company and its
Subsidiaries conducts significant sales of its product in all of the
aforementioned Territory.
6. "Termination Date" shall mean the date upon which the
employment of the Executive was terminated by resignation or other voluntary
action, or involuntarily by the Company, whether with or without cause.
Section 4.3 INVENTIONS.
a. Executive shall disclose promptly to the Company any and all
significant conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, that are conceived or made by Executive,
solely or jointly with another, during the period of employment or within one
year thereafter, and that are directly related to the business or activities of
the Company and its Subsidiaries and that Executive conceives as a result of his
employment by the Company and its Subsidiaries, regardless of whether or not
such ideas, inventions, or improvements qualify as "works for hire". Executive
hereby assigns and agrees to assign all his interests therein to the Company or
its nominee. Whenever requested to do so by the Company, Executive shall execute
any and all applications, assignments, or other instruments that the Company
shall deem necessary to apply for and obtain patent registrations in the United
States or any foreign country or to otherwise protect the Company's and its
Subsidiaries interest therein.
b. In accordance with the Delaware Labor Law Section 805, Executive
is hereby advised that this paragraph 4.3 regarding the Company's and its
Subsidiaries' ownership of Inventions does not apply to any invention for which
no equipment, supplies, facilities or trade secret information of the Company or
any Subsidiary was used and which was developed entirely on Executive's own
time, unless (i) the invention relates to the business of the Company or any
Subsidiary or to the Company's or any Subsidiary's actual or demonstrably
anticipated research or development or (ii) the invention results from any work
performed by Executive for the Company or any Subsidiary.
Section 4.4 ENFORCEMENT AND REMEDIES.
a. Executive further covenants, agrees, and recognizes that because
the breach or threatened breach of the covenants, or any of the, contained in
Section 4.1 or 4.2 or 4.3 will result in immediate and irreparable injury to the
Company and its Subsidiaries, the Company and its Subsidiaries shall be entitled
to a preliminary and permanent injunction restraining Executive from any
violation of Section 4.1 or 4.2 or 4.3 to the fullest extent allowed by law, in
addition to any other rights available at law, in equity or otherwise.
b. Executive further covenants, agrees and recognizes that in the
event of a violation of any of the covenants and agreements contained in
Sections 4.1 and 4.2 and 4.3 hereof, the Company, shall be entitled to an
accounting of all profits, compensation, commissions,
remunerations or benefits which Executive directly or indirectly has realized as
a result of, growing out of or in connection with any such violation and shall
be entitled to receive all such other amounts to which Executive would be
entitled as damages under law or at equity.
Section 4.5 ACKNOWLEDGEMENT OF ADEQUATE CONSIDERATION. The parties
stipulate and agree that the payment and other benefits owed to Executive by the
Company and its Subsidiaries under this Agreement and the performance of the
Company's obligations hereunder constitute sufficient consideration to support
enforcement of the covenants of this Agreement.
Section 4.6 ACKNOWLEDGEMENT OF REASONABLENESS. Executive has
carefully read and considered the provisions of this Agreement in consultation
with attorneys of his choice and agrees that the restrictions set forth herein
are fair and reasonably required for the protection of the Company and its
Subsidiaries and are legally binding and enforceable and the enforcement thereof
will not impair Executive's ability to earn a livelihood. In the event that any
provisions relating to any of the Restrictive Period, the Territory or the
Contact Persons shall be declared by a court of competent jurisdiction to exceed
the maximum time period or maximum geographical area or other restraint such
court deems reasonable and enforceable under applicable law, the time period or
area of restriction or other restraint considered reasonable and enforceable by
the court shall thereafter be the applicable Restrictive Period, Territory, or
other Contact Persons under this Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 WAIVER OF BREACH OR VIOLATION. The waiver by either
party of a breach or violation of any provision of this Agreement shall not
operate as or be construed to be a waiver of any subsequent breach of any
provision of this Agreement.
Section 5.2 NOTICES. All notices required or permitted to be given
under this Agreement will be sufficient if furnished in writing, sent by
registered mail or express overnight carrier service to the last known residence
of the Executive.
Section 5.3 INDEMNIFICATION. In the event Executive is made a party
to any threatened or pending action, suit, or proceeding, whether civil,
criminal, administrative or legislative (other than an action by the Company or
any Subsidiary against Executive, and excluding any action by Executive against
the Company or any Subsidiary), by reason of the fact that he is or was
performing services under this Agreement or as an officer or director of the
Company or any Subsidiary, then, to the fullest extent permitted by applicable
law, the Company shall indemnify the Executive against all expenses (including
reasonable attorney's fees), judgments, fines, and amounts paid in settlement,
as actually and reasonably incurred by Executive in connection therewith. Such
indemnification shall continue as to Executive even if he has ceased to be an
employee, officer, or director of the Company or any Subsidiary and shall inure
to the benefit of his heirs and estate. To the fullest extent permitted under
applicable law, the Company shall advance to Executive all reasonable costs and
expenses directly related to the defense of such actions, suit or proceeding
within 20 days after written request therefore by Executive to the Company. In
the event that both Executive and the Company are made party to the same
third-party action, complaint, suit, or proceeding, the Company will engage
competent legal
representation, and Executive agrees to use the same representation; PROVIDED,
that if counsel selected by the Company shall have a conflict of interest that
prevents counsel from representing Executive, Executive may engage separate
counsel and the Company shall pay all reasonable attorney's fees of such
separate counsel. The provisions of this Section are in addition to, and not in
derogation of, the indemnification provisions of the Company's By-law. The
foregoing indemnification also shall be applicable to Executive in his capacity
as an officer, director, or representative of any subsidiary of the Company or
any entity controlled by or affiliated with the Company.
Section 5.4 CONFIDENTIALITY; COVENANT NOT TO DISPARAGE. Each party
covenants and agrees with the other not to disclose the existence or terms of
this Agreement to any person at any time for any purpose, except that (a) either
party may make such disclosures confidentially to the party's lawyers and
accountants in connection with the rendition of their professional services or
as otherwise required by law and (b) the Company may make such disclosures as it
deems to be required by applicable securities laws. Each party covenants and
agrees with the other not to disparage the reputation of the other.
Section 5.5 GOVERNING LAW. This Agreement is made in and shall be
interpreted, construed, and governed according to the laws of the State of
Delaware. Section 5.6 HEADINGS. The paragraph and section headings contained in
this agreement are for convenience only and shall in no manner be construed as
part of this Agreement.
Section 5.7 LEGAL CONSTRUCTION. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had
never been included in the Agreement.
Section 5.8 PRIOR AGREEMENTS SUPERSEDED. As of the Effective Date,
this Agreement constitutes the sole agreement of the parties with respect to
employment of the Executive and supersedes any prior understandings or written
or oral arrangements between the parties respecting the subject hereunder,
including, without limitation, the Employment Agreement, dated as of December
31, 2001, between the Executive and Pierre Foods, Inc., but not with respect to
any breach of such agreement prior to the Effective Date.
Section 5.9 ASSIGNMENT. The Executive may not assign his rights or
delegate his duties or obligations hereunder without the written consent of the
Company.
Section 5.10 ENFORCEMENT. In the event either party resorts to legal
action to enforce the terms and provisions of the Arbitration award, the
prevailing party shall be entitled to recover the costs of such action so
incurred, including, without limitation, reasonable attorney's fees.
Section 5.11 GENDER AND NUMBER. Whenever the context hereof requires,
the gender of all words shall include the masculine, feminine, and neuter and
the number of all words shall include the singular and plural.
Section 5.12 AMENDMENTS AND AGREEMENT EXECUTION. This Agreement may
be modified or amended only in writing, signed by the Executive and the Company.
Section 5.13 COUNTERPARTS. This Agreement (and any written amendment
thereto) may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
Section 5.14 EXECUTIVE'S HEIRS. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. Notwithstanding any other provision herein to the
contrary, if the Executive should die while any amounts would still be payable
to him hereunder if he had continued to live, all such amounts shall be paid in
accordance with the terms of this Agreement to his designee or, if there be no
such designee, to his estate.
Section 5.15 EFFECTIVE DATE. This Agreement shall become effective
automatically without any further actions by the Company or Executive
immediately upon the closing of the acquisition of PFMI by the Company pursuant
to the Purchase Agreement (the "EFFECTIVE DATE"), and this Agreement shall
terminate and shall be of no further force and effect if the Purchase Agreement
is terminated prior to the Effective Date in accordance with its terms.
Section 5.16 EQUITY ARRANGEMENTS. In connection with the closing of
the transactions under the Purchase Agreement, Executive shall participate in
the Company's equity as set forth in the term sheet attached hereto as EXHIBIT
B. Executive hereby agrees that he will enter into appropriate agreements
necessary to effect the foregoing equity arrangements in a manner consistent
with the investment in the Company by Madison Dearborn Capital Partners IV, L.P
and its affiliates. Notwithstanding the provisions of Section 5.15 above, this
Section 5.16 shall be in full force and effect and enforceable commencing on the
date of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EXECUTIVE: COMPANY:
PIERRE HOLDING CORP.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
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Its: President
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