EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of the 2nd day of June,
1997, by and between NORTHLAND CRANBERRIES, INC., a Wisconsin corporation
("Company"), and XXXXXX X. XXXXXXXX ("Executive").
RECITALS
A. The Executive has served as a director of the Company since
1994 and has extensive management experience in product marketing,
including holding the positions of Director of Marketing for the Food
Service Division of General Xxxxx Corporation since September 1993,
Marketing Director of the Gold Medal Division of General Xxxxx
Corporation, and Marketing Manager of the Gold Medal Division of General
Xxxxx Corporation.
B. The Board of Directors of the Company (the "Board")
believes that the Executive's experience in marketing products within the
food industry, combined with his intimate knowledge of the business of the
Company, will allow him to provide valuable service to the Company and its
shareholders as an executive officer of the Company, and, in particular,
in directing, managing and overseeing the growth and expansion of the
Company's Northland brand 100% cranberry juice blend product line.
C. The Executive desires to be employed by the Company on the
terms and conditions hereinafter set forth.
D. It is the intention of the parties hereto that this
Agreement establish the terms of the Executive's employment by the Company
both prior to and subsequent to a Change in Control of the Company (as
hereinafter defined), if any such Change of Control of the Company were to
occur. Article I of this Agreement establishes the terms and conditions
of the Executive's employment prior to any Change in Control of the
Company. Articles II and III of this Agreement establish the terms and
conditions of the Executive's employment subsequent to any Change in
Control of the Company.
E. The Company recognizes that circumstances in which a Change
in Control of the Company occurs, through acquisition or otherwise, are
highly disruptive and will cause uncertainty about the Executive's future
employment with the Company without regard to the Executive's competence
or past contributions and that such uncertainty may materially adversely
affect the Company.
F. The Company and the Executive are desirous that any
proposal for a Change in Control of the Company will be considered by the
Executive objectively, with reference only to the best interests of the
Company and its shareholders and without undue regard for the Executive's
personal interests.
G. To promote continuity of management and attract and retain
the services of the Executive and to further align the economic interests
of the Executive with those of the Company's shareholders, the Board
believes it is in the Company's and its shareholders' best interests to
grant an equity interest in the Company to the Executive in the form of
12,000 shares of the Company's Class A Common Stock, $.01 par value
("Stock") (to be adjusted subsequent to the date of this Agreement to take
into account the effect of any subsequent stock dividends or stock splits)
("Stock"), which Stock is subject to certain restrictions on transfer by
Executive to encourage Executive's longevity of service to the Company.
H. To further align the Executive's economic interests with
those of the Company and its shareholders, the Board believes it is in the
Company's best interests to grant the Executive options to purchase 10,000
shares of Stock pursuant to the terms of the 1995 Stock Option Plan, which
options shall be fully vested and immediately exercisable upon grant.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto
mutually covenant and agree as follows:
ARTICLE I
EMPLOYMENT PRIOR TO CHANGE IN CONTROL
1.1 First Employment Period. For purposes of this Agreement, the
term "First Employment Period" means the period commencing on the date of
this Agreement and ending on the first to occur of the following: (i) the
date of termination of the Executive's employment pursuant to the terms of
Article I of this Agreement; (ii) a Change in Control of the Company; or
(iii) on the first anniversary of the date of this Agreement; provided,
however, that the First Employment Period and the provisions of this
Agreement relating thereto shall automatically renew for one additional
year on the first anniversary of the date of this Agreement and on each
anniversary thereafter, unless (a) a Change in Control of the Company has
occurred; (b) the date of termination of the Executive's employment
pursuant to the terms of Article I of this Agreement has occurred; or (c)
at least ninety (90) days prior to such applicable annual anniversary of
the date of this Agreement, the Executive shall have delivered to the
Company, or the Company shall have delivered to the Executive, written
notice that the First Employment Period will not be extended.
1.2 Duties During the First Employment Period.
(a) Offices. The Executive shall initially serve as President
and Chief Operating Officer of the Company, or in such other offices as
determined by the Board, the Chief Executive Officer or the Chairman of
the Board, with such duties and responsibilities as are customarily
assigned to such positions, and such other duties and responsibilities as
may from time to time be assigned to him by the Board, the Chief Executive
Officer or the Chairman of the Board.
(b) Time. The Executive shall devote his full business time
and effort during normal business hours to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive under this Agreement, use Executive's best
efforts to carry out such responsibilities faithfully and efficiently and
in the best interests of the Company and its shareholders. The Executive
shall also serve on such corporate, industry, civic or charitable boards
or committees as reasonably requested by the Board, the Chief Executive
Officer or the Chairman of the Board.
1.3 Compensation.
(a) Salary. During the First Employment Period, the Company
shall pay to the Executive an annual salary ("Annual Salary") of $220,000.
The Annual Salary shall be payable in accordance with the Company's
regular payroll practice for its senior executives, as in effect from time
to time. The Annual Salary will be initially reviewed in October, 1998
for adjustment by the Board based on the recommendations of the Company's
Chief Executive Officer or Chairman of the Board. Following any such
adjustment, the term "Annual Salary" as used in this Agreement shall mean
such adjusted salary.
(b) Additional Compensation. The Executive shall receive a
bonus of $50,000 cash payable upon execution of the Agreement. The
Company shall cause the Executive to be eligible to participate in all
applicable incentive, savings and retirement plans, practices, policies
and programs made available to executives of the Company (including,
without limitation, the 1997 Incentive Bonus Plan (at a level to be
determined by the Compensation Committee of the Board), the 1995 Stock
Option Plan and the 401(k) Plan) to the same extent and subject to the
same terms and conditions as other eligible and similarly situated
executives of the Company or as otherwise determined by the Board,
Chairman of the Board or Chief Executive Officer (such additional benefits
as described solely in this sentence are hereinafter referred to as
"Additional Compensation"). The Company shall cause the Executive and/or
the Executive's family, as the case may be, to be eligible for immediate
participation in, and to receive all benefits under, all applicable
welfare benefit plans, practices, policies and programs made available to
similarly situated executives of the Company, including, without
limitation, directors' and officers', medical, dental, group life
insurance and accidental death and travel accident insurance plans and
programs, to the same extent as other eligible executives of the Company
or as otherwise determined by the Board, Chairman of the Board or Chief
Executive Officer.
(c) Expense Reimbursement. The Company shall reimburse the
Executive for all reasonable and documented expenses incurred by the
Executive in the performance of the Executive's duties under this
Agreement in accordance with the policies and procedures established by
the Board for its senior executive officers.
(d) Automobile. The Executive shall be entitled to the
ordinary and reasonable use of a GMC Suburban or its equivalent in
accordance with the Company's existing policies and practices. The
Company shall reimburse the Executive for all applicable maintenance
expenses not otherwise covered by any manufacturer or dealer warranties.
(e) Vacation. The Executive shall be entitled to the number of
paid vacation days in each calendar year as determined by the Board or the
Chairman of the Board or Chief Executive Officer consistent with policies
and practices in effect from time to time for the Company's senior
executive officers. Unused vacation shall not accumulate. The Executive
shall also be entitled to all paid holidays given by the Company to its
senior executive officers.
(f) Grant of Options to Purchase Stock. The Company hereby
grants to the Executive an option to purchase 10,000 shares of Stock
pursuant to the terms of the 1995 Stock Option Plan at an exercise price
equal to the fair market value of the Stock on the date hereof. Such
option shall be fully vested and immediately exercisable upon grant. This
option will be evidenced by a separate stock option agreement.
1.4 Grant of Restricted Stock.
(a) Grant of Stock. In consideration of the acceptance of
employment and the continued employment of the Executive, and as a
critical inducement to Executive to enter this Agreement and to better
align the Executive's economic interests in the operations of the business
with those of the Company's shareholders, the Company grants to the
Executive 12,000 shares of Stock (to be adjusted subsequent to the date of
this Agreement to take into account the effect of any subsequent stock
dividends or stock splits) upon the terms and conditions set forth herein.
Such Stock is being issued on the date hereof represented by four (4)
stock certificates of equal share amounts (together aggregating 12,000
shares) to be held in trust by the Company until each respective portion
of such Stock is fully vested pursuant to Sections 1.4(b) or 1.4(c)
hereof.
(b) Vesting Schedule. The Stock granted to the Executive
pursuant to Section 1.4(a) hereof shall vest in the Executive ratably on
the first, second, third and fourth anniversaries of the date of this
Agreement (i.e., 3,000 shares on each such date), as long as the Executive
is still employed by the Company as its President and Chief Operating
Officer on each such respective anniversary with respect to the Stock then
vesting.
(c) Vesting Upon a Change of Control of the Company.
Notwithstanding the vesting schedule in Section 1.4(b) above, (i) all
shares of Stock granted to the Executive pursuant to Section 1.4(a) hereof
shall vest in the Executive immediately upon a Change in Control of the
Company if Executive is then employed by the Company on the date of such a
Change in Control of the Company; and (ii) in the event of the Executive's
death or disability prior to the fourth anniversary of the date of this
Agreement, a pro rata portion (based on the number of days elapsed from
the immediately preceding anniversary to the date of death or disability
divided by 365) of the Stock that would have vested on the next succeeding
anniversary shall vest as of the date of death or disability.
(d) Restrictions on Transferability. The Executive may not
sell, pledge, encumber, transfer by or pursuant to a gift or bequest or
otherwise transfer or dispose of, and the Company will not permit to be
sold, encumbered, attached, or otherwise disposed of or transferred in any
manner, either voluntarily or by operation of law (collectively referred
to as "Transfer"), any Stock granted to the Executive pursuant to this
Agreement (or any Stock at any time hereafter acquired by the Executive in
respect of such Stock) which has not yet vested pursuant to Section 1.4(b)
or 1.4(c) hereof.
(e) Termination of Employment. In the event of the Executive's
death, disability or termination from employment, any shares of Stock
granted to the Executive pursuant to Section 1.4(a) hereof but not yet
vested pursuant to Section 1.4(b) or 1.4(c) hereof shall automatically be
forfeited and cancelled by the Company and any dividends or other
distributions held in trust by the Company pursuant to Section 1.4(g)
hereof and applicable to such shares shall automatically be forfeited to
the Company.
(f) Voting Rights. The Executive shall have voting rights for
all Stock granted pursuant to Section 1.4(a) hereof regardless of whether
it has vested pursuant to Section 1.4(b) or 1.4(c) hereof; provided,
however, that with respect to all unvested shares of Stock, the Executive
shall vote all such unvested shares of Stock in accordance with the
recommendation of the Board.
(g) Dividends and Other Distributions. The Executive shall be
entitled to receive all cash dividends and other distributions paid from
the date of original issuance of the Stock when and after such shares of
Stock have vested pursuant to Section 1.4(b) or 1.4(c) hereof. For shares
of Stock granted to the Executive pursuant to this Agreement that have not
vested in the Executive in accordance with Section 1.4(b) or 1.4(c)
hereof, the Company will hold all cash dividends and other distributions
paid with respect to these shares of Stock in trust. Any shares of Stock
paid as dividends or distributions on any unvested Stock held in trust by
the Company pursuant to this Section 1.4(g) shall be subject to the same
restrictions on transferability as the shares of Stock with respect to
which they were paid. Dividends or distributions paid in cash on any
unvested shares of Stock held in trust by the Company pursuant to this
Section 1.4(g) shall be deposited in an interest-bearing money-market or
similar account by the Company with any bank or financial institution of
its choice, and distributed to Executive when and if the shares of Stock
with respect to which such cash dividends or distributions were paid vest
in accordance with Section 1.4(b) or 1.4(c) hereof. The Company shall not
be liable for any act taken or omitted by it with respect to the
investment of cash dividends held by it in trust under this Section 1.4(g)
if taken or omitted by it in good faith and in the exercise of its own
best judgment. The Executive agrees to indemnify the Company and hold it
harmless against any and all liabilities incurred by it under this Section
1.4(g) except for liabilities incurred by the Company from its own willful
misconduct or negligence.
(h) Endorsement on Stock Certificates. Conspicuously noted on
each certificate representing Stock issued to the Executive pursuant to
the terms of this Agreement (or hereafter acquired in respect of such
stock) shall be a legend reading substantially as follows:
"ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR ANY OTHER
DISPOSITION OF THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED BY, AND SUBJECT TO, THE TERMS AND
PROVISIONS OF AN EMPLOYMENT AND SEVERANCE AGREEMENT DATED AS OF
JUNE ___, 1997. A COPY OF SUCH AGREEMENT AND OF ALL AMENDMENTS
OR SUPPLEMENTS THERETO IS ON FILE IN THE OFFICE OF THE SECRETARY
OF THE COMPANY. BY ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER
AGREES TO BE BOUND BY THE TERMS OF SAID AGREEMENT AND ALL
AMENDMENTS OR SUPPLEMENTS THERETO."
Upon the vesting of shares of Stock issued to the Executive pursuant to
Sections 1.4(b) or 1.4(c) hereof and upon request of the Executive, the
Company shall instruct its transfer agent to remove such legend from the
certificate(s) representing such fully vested shares of Stock, and such
Stock shall no longer be subject to the Transfer restrictions contained in
Section 1.4(d) hereof.
1.5 Termination of Employment During the First Employment Period.
(a) Death. The Executive's employment and the First Employment
Period shall terminate automatically upon the Executive's death during the
First Employment Period.
(b) Incapacity. The Company shall be entitled to terminate the
Executive's employment and the First Employment Period because of the
Executive's Incapacity during the First Employment Period. "Incapacity"
means that (i) the Executive has been substantially unable, for a period
of 30 consecutive days, to perform the Executive's duties under this
Agreement, as a result of physical or mental illness or injury, or (ii) a
physician selected by the Company or its insurers has determined that the
Executive's incapacity substantially prevents or limits Executive from
performing his duties hereunder for an extended or indefinite period. A
termination of the Executive's employment by the Company for Incapacity
shall be communicated to the Executive by delivery of written notice of
such termination, which shall be effective on receipt of such notice by
the Executive.
(c) By Company. The Company may terminate the Executive's
employment and the First Employment Period pursuant to (i) a Forced
Termination immediately upon notice to the Executive or (ii) for any other
reason upon 30 days written notice to the Executive.
For purposes of this Agreement, the term "Forced Termination"
shall mean a termination of the Executive's employment during the First
Employment Period for (i) the willful and continued failure (following
written notice thereof to the Executive and a reasonable opportunity to
cure) of the Executive substantially to perform the Executive's duties
under this Agreement (other than as a result of Incapacity) or (ii)
illegal conduct or gross misconduct by the Executive, in either case that
is willful and results in material and demonstrable damage to the business
or reputation of the Company.
(d) By Executive. The Executive may terminate the Executive's
employment and the First Employment Period at any time for any reason or
for no reason upon giving the Company written notice at least 90 days
prior to the date of termination specified in such notice.
1.6 Obligations of Company upon Termination During the First
Employment Period.
(a) Death and Incapacity. If Executive's employment is
terminated during the First Employment Period by reason of Executive's
death or Incapacity, Company shall pay to Executive or, in the case of
Executive's death, to Executive's designated beneficiaries (or, if there
is no such beneficiary, to Executive's estate or legal representative), in
a lump sum in cash within 30 days after the date of termination, the sum
of the following amounts (the "Accrued Obligations"): (i) any portion of
Executive's Annual Salary through the date of termination that has not yet
been paid; (ii) an amount representing the Additional Compensation (which
term does not include any shares of Stock granted to the Executive
pursuant to Section 1.4(a) hereof) for the period that includes the date
of termination, computed by assuming that the amount of all such
Additional Compensation would be equal to the maximum amount of such
Additional Compensation that Executive would have been eligible to earn
for such period, and multiplying that amount by a fraction, the numerator
of which is the number of days in such period through the date of
termination, and the denominator of which is the total number of days in
the relevant period; and (iii) any accrued but unpaid Additional
Compensation. All shares of Stock granted to the Executive pursuant to
Section 1.4(a) hereof which have not yet vested pursuant to Section 1.4(b)
or 1.4(c) hereof on the date of termination of the Executive's employment
hereunder shall be forfeited back to the Company and cancelled.
(b) Forced Termination By The Company; Termination By
Executive. If Executive's employment is terminated by Company pursuant to
a Forced Termination during the First Employment Period, or if Executive
voluntarily terminates employment during the First Employment Period, the
Company shall pay Executive the Annual Salary through the date of
termination to the extent not yet paid, and Company shall have no further
obligations under this Agreement. All shares of Stock granted to the
Executive pursuant to Section 1.4(a) hereof which have not yet vested
pursuant to Section 1.4(b) or 1.4(c) hereof on the date of termination of
the Executive's employment hereunder shall be forfeited back to the
Company and cancelled.
(c) By Company During the First Year of Employment Other Than
Pursuant to a Forced Termination. If Company shall terminate Executive's
employment prior to the first anniversary of the Executive's employment
hereunder for any reason other than pursuant to a Forced Termination,
Company shall pay to Executive the Annual Salary through the date of
termination to the extent not yet paid plus, in lieu of any further salary
payments to Executive for periods subsequent to the date of termination,
Company shall pay as liquidated damages or severance pay, or both, to
Executive on the fifth day following the date of termination, a lump-sum
amount equal to the Annual Salary in effect as of the date of termination.
All shares of Stock granted to the Executive pursuant to Section 1.4(a)
hereof which have not yet vested pursuant to Section 1.4(b) or 1.4(c)
hereof on the date of termination of the Executive's employment hereunder
shall be forfeited back to the Company and cancelled.
ARTICLE II
EMPLOYMENT AFTER AFTER A CHANGE IN CONTROL
2.1 Second Employment Period. If a Change in Control of the Company
occurs when the Executive is employed by the Company, the Company will
continue thereafter to employ the Executive during the Second Employment
Period, and the Executive will remain in the employ of the Company, in
accordance with and subject to the terms and provisions of this Agreement.
2.2 Duties During the Second Employment Period. During the Second
Employment Period, the Executive shall, in the same capacities and
positions held by the Executive at the time of the Change in Control of
the Company or in such other capacities and positions as may be agreed to
by the Company and the Executive in writing, devote the Executive's best
efforts and all of the Executive's business time, attention and skill to
the business and affairs of the Company, as such business and affairs now
exist and as they may hereafter be conducted. The services which are to
be performed by the Executive hereunder are to be rendered in the same
metropolitan area in which the Executive was employed at the time of such
Change in Control of the Company, or in such other place or places as
shall be mutually agreed upon in writing by the Executive and the Company
from time to time. Without the Executive's consent the Executive shall
not be required to be absent from such metropolitan area more than forty-
five (45) days in any twelve (12)-month period.
2.3 Compensation During the Second Employment Period. During the
Second Employment Period, the Executive shall be compensated as follows:
(a) Annual Base Salary. The Executive shall receive, at such
intervals and in accordance with such standard policies of the Company as
may be in effect immediately prior to the Change in Control of the
Company, an annual base salary in cash equivalent of not less that the
Annual Salary as in effect immediately prior to the Change in Control of
the Company (which base salary shall, unless otherwise agreed in writing
by the Executive, include the current receipt by the Executive of any
amounts which, prior to the Change in Control of the Company, the
Executive had elected to defer, whether such compensation is deferred
under Section 401(k) of the Code or otherwise), subject to adjustment as
hereinafter provided.
(b) Reimbursement. The Executive shall, at such intervals and
in accordance with such standard policies as may be in effect immediately
prior to the Change in Control of the Company, be reimbursed for any and
all monies advanced in connection with the Executive's employment for
reasonable and necessary expenses incurred by the Executive on behalf of
the Company, including travel expenses and expenses contemplated by
Section 1.3(d) hereof.
(c) Benefits. The Executive shall be included, to the extent
eligible thereunder (which eligibility shall not be conditioned on the
Executive's salary grade or on any other requirement which excludes
persons of comparable status to the Executive unless such exclusion was in
effect for such plan or an equivalent plan immediately prior to the Change
in Control of the Company), in any and all plans providing benefits for
the Company's salaried employees in general, including but not limited to
group life insurance, hospitalization, medical, dental, profit sharing and
stock bonus plans; provided, that, in no event shall the aggregate level
of benefits under such plans in which the Executive is included be less
than the aggregate level of benefits under plans of the Company of the
type referred to in this Section 2.3(c) which the Executive was
participating immediately prior to the Change in Control of the Company.
The Executive shall also be entitled to the use of the automobile pursuant
to Section 1.3(d) hereof through the term of the Second Employment Period.
(d) Vacation and Holidays. The Executive shall annually be
entitled to not less than the amount of paid vacation and not fewer than
the number of paid holidays to which the Executive was entitled annually
immediately prior to the Change in Control of the Company or such greater
amount of paid vacation and number of paid holidays as may be made
available annually to other executives of the Company of comparable status
and position to the Executive.
(e) Executive Benefits. The Executive shall be included in all
plans providing additional benefits to executives of the Company of
comparable status and position to the Executive, including but not limited
to deferred compensation, split-dollar life insurance, supplemental
retirement, stock option, stock appreciation, stock bonus, cash bonus and
similar or comparable plans; provided, that, in no event shall the
aggregate level of benefits under such plans be less than the aggregate
level of benefits under plans of the Company of the type referred to in
this Section 2.3(e) in which the Executive was participating immediately
prior to the Change in Control of the Company.
2.4 Annual Compensation Adjustments During the Second Employment
Period. During the Second Employment Period, the Board (or an appropriate
committee thereof) will consider and appraise, at least annually, the
contributions of the Executive to the Company's operating efficiency,
growth, cash flow from operations and operating profits, and, in
accordance with the Company's practice prior to the Change in Control of
the Company, due consideration shall be given to the upward adjustment of
the Executive's base compensation rate, at least annually, commensurate
with (i) increases generally given to other executives of the Company of
comparable status and position to the Executive, and (ii) as the scope of
the Company's operations or the Executive's duties expand.
2.5 Termination During the Second Employment Period For Cause or
Without Good Reason. It there is a Covered Termination for Cause or due
to the Executive's voluntarily terminating his employment other than for
Good Reason (any such terminations to be subject to the procedures set
forth in Section 2.11 hereof), then the Executive shall be entitled to
receive only Accrued Benefits pursuant to Section 2.7(a) hereof.
2.6 Termination During the Second Employment Period Giving Rise to a
Termination Payment.
(a) If there is a Covered Termination by the Executive for Good
Reason, or by the Company other than by reason of (i) death, (ii)
disability pursuant to Section 2.10 hereof, or (iii) Cause, then the
Executive shall be entitled to receive, and the Company shall promptly
pay, Accrued Benefits pursuant to Section 2.7(a) hereof and, in lieu of
further base salary for periods following the Termination Date, as
liquidated damages and severance pay, the Termination Payment pursuant to
Section 2.7(b) hereof.
(b) If there is a Covered Termination and the Executive is
entitled to Accrued Benefits and the Termination Payment, then the
Executive shall be entitled to the following additional benefits:
(i) The Executive shall receive, at the expense of the
Company, outplacement services on an individualized basis provided by
a nationally recognized executive placement firm selected by the
Company.
(ii) Until the earlier of the third anniversary of the
Termination Date or such time as the Executive has obtained new
employment and is covered by benefits which in the aggregate are at
least equal in value to the following benefits the Executive shall
continue to be covered, at the expense of the Company, by the same or
equivalent life insurance, hospitalization, medical and dental
coverage as was required hereunder with respect to the Executive
immediately prior to the date the Notice of Termination is given.
2.7 Payments.
(a) Accrued Benefits. For purposes of this Agreement, the
Executive's "Accrued Benefits" shall include the following amounts,
payable as described herein: (i) all base salary for the time period
commencing on the start of the Second Employment Period and ending with
the Termination Date to the extent not yet paid; (ii) reimbursement for
any and all monies advanced in connection with the Executive's employment
for reasonable and necessary expenses incurred by the Executive on behalf
of the Company through the Termination Date; (iii) any and all other cash
earned through the Termination Date and deferred at the election of the
Executive or pursuant to any deferred compensation plan then in effect;
(iv) a lump sum payment of the bonus or incentive compensation otherwise
payable to the Executive with respect to the year in which termination
occurs under all bonus or incentive compensation plan or plans of the
Company in which the Executive is a participant; and (v) all other
payments and benefits to which the Executive may be entitled as
compensatory fringe benefits, including a lump sum cash payment in an
amount equal to the total remaining lease payments due under the lease
pursuant to Section 1.3(d), or under the terms of any benefit plan of the
Company, including severance payments under the Company's severance
policies and practices as in effect immediately prior to the Change in
Control of the Company. Payment of Accrued Benefits shall be made
promptly in accordance with the Company's prevailing practice with respect
to Subsections (i) and (ii) hereof or, with respect to Subsections (iii),
(iv) and (v) hereof, pursuant to the terms of the benefit plan or practice
establishing such benefits.
(b) Termination Payment. The Termination Payment shall be an
amount equal to the average of the Executive's annual base salary over the
five (5) fiscal years of the Company (or such shorter period) immediately
prior to the Change in Control of the Company multiplied by two (2). The
Termination Payment shall be paid to the Executive in cash no later than
ten (10) business days after the Termination Date. The Executive shall
not be required to mitigate the amount of the Termination Payment by
securing other employment or otherwise, nor will such Payment be reduced
by reason of the Executive securing other employment or for any other
reason.
It is the intention of the Company and the Executive that no
portion of the Termination Payment, Accrued Benefits or any other payment
or benefit under this Agreement, or payment to or for the benefit of the
Executive under any other agreement or plan of the Company, regardless of
whether such payment or benefit was paid or provided for prior to the
termination of the Executive's employment hereunder (herein all
collectively referred to as the "Total Payments"), be deemed to be an
"excess parachute payment" as defined in Section 280G of the Code. It is
agreed that the present value of the Total Payments and any other payments
to or for the benefit of the Executive in the nature of compensation to
which Section 280G of the Code or any successor provision thereto applies
(in the aggregate "Total Benefits") shall not exceed an amount equal to
one dollar less than the maximum amount which the Executive may receive
without becoming subject to the tax imposed by Section 4999 of the Code or
any successor provision (the "Excise Tax") or which the Company may pay
without loss of deduction under Section 280G(a) of the Code or any
successor provision thereto. Present value for purposes of this Agreement
shall be calculated in accordance with Section 280G(d)(4) of the Code or
any successor provision thereto. Within forty-five (45) days following
the Termination Date or notice by either party to the other of its belief
that there is a payment or benefit due the Executive which will result in
an excess parachute payment, the Executive and the Company, at the
Company's expense, shall obtain the opinion of such legal counsel (the
opinion of legal counsel need not be unqualified), and certified public
accountants as the Executive may choose, which sets forth (a) the amount
of the Base Period Income of the Executive, (b) the present value of Total
Benefits, and (c) the amount and present value of any excess parachute
payments. In the event that such opinions determine that there would be
an excess parachute payment, the Termination Payment or any other payment
determined by such counsel to be includible in the Total Benefits, shall
be reduced or eliminated as specified by the Executive in writing
delivered to the Company within thirty (30) days of his receipt of such
opinions or, if the Executive fails to so notify the Company, then as the
Company shall reasonably determine, so that under the bases of calculation
set forth in such opinions the Total Benefits paid to the Executive shall
be an amount equal to one dollar less than the maximum amount which the
Executive may receive without becoming subject to the Excise Tax (the
"Reduced Amount"). For purposes of this Agreement, the term "Base Period
Income" shall be an amount equal to the Executive's "annualized includible
compensation" from the Company for the "base period" as defined in
Sections 280G(d)(1) and (2) of the Code or any successor provisions
thereto. In the event that the provisions of Sections 280G and 4999 of
the Code or any successor provisions are repealed without succession this
provision shall be of no further force or effect.
As a result of the uncertainty in the application of Section
280G of the Code at the time of the initial determination by legal counsel
and accountants as provided in this provision, it is possible that amounts
will have been paid or distributed by the Company to or for the benefit of
the Executive pursuant to this Agreement which should not have been so
paid or distributed ("Over-payment") or that additional amounts which will
have not been paid or distributed by the Company to or for the benefit of
the Executive pursuant to this Agreement could have been so paid or
distributed ("Underpayment"), in each case, consistent with the
calculation of the Reduced Amount hereunder. In the event that such legal
counsel, based upon the assertion of a deficiency by the Internal Revenue
Service against the Company or the Executive which such legal counsel
believes has a high probability of success or other controlling precedent
or substantial authority, determines that an Overpayment has been made,
any such Overpayment paid or distributed by the Company to or for the
benefit of the Executive shall be treated for all purposes as a loan to
the Executive which the Executive shall repay to the Company together with
interest at the applicable federal rate provided for in Section 7872(f)(2)
of the Code; provided, however, that no amount shall be payable by the
Executive to the Company if and to the extent such payment would not
reduce that amount which is subject to the excise tax under Section 4999
of the Code. In the event that such legal counsel, based upon controlling
precedent or other substantial authority, determines that an Underpayment
has occurred, any such Underpayment shall be promptly paid by the Company
to or for the benefit of the Executive together with interest at the
applicable federal rate provide for in Section 7872(f)(2) of the Code.
2.8 Death.
(a) Prior to Notice of Termination. Except as provided in
Section 2.8(b) hereof, in the event of a Covered Termination due to the
Executive's death, the Executive's estate, heirs and beneficiaries shall
receive all the Executive's Accrued Benefits through the Termination Date.
(b) Following Notice of Termination. In the event the
Executive dies after a Notice of Termination is given (i) by the Company,
other than by reason of disability, or (ii) by the Executive for Good
Reason, the Executive's estate, heirs and beneficiaries shall be entitled
to the benefits described in Section 2.8(a) hereof and, subject to the
provisions of Article III of this Agreement, to such Termination Payment
as the Executive would have been entitled to had the Executive lived. For
the purposes of this Subsection (b), the Termination Date shall be the
earlier of thirty (30) days following the giving of the Notice of
Termination or one day prior to the end of the Second Employment Period,
subject to delay pursuant to Section 3.1(j) hereof.
2.9 Retirement. If, during the Second Employment Period, the
Executive and the Company shall execute an agreement providing for the
early retirement of the Executive from the Company, or the Executive shall
otherwise give notice that he is voluntarily choosing to retire early from
the Company, the Executive shall receive Accrued Benefits through the
Termination Date; provided, that, if the Executive's employment is
terminated by the Executive for Good Reason or by the Company other than
by reason of death, disability or Cause and the Executive also, in
connection with such termination, elects voluntary early retirement, the
Executive shall also be entitled to receive a Termination Payment pursuant
to Section 2.7(b) hereof.
2.10 Termination for Disability during the Second Employment Period.
If, during the Second Employment Period, as a result of the Executive's
disability (regardless of whether such illness or injury is job-related),
the Executive shall have been absent from the Executive's duties hereunder
on a full-time basis for six (6) consecutive months and, within thirty
(30) days after the Company notifies the Executive in writing that it
intends to terminate the Executive's employment (which notice shall not
constitute the Notice of Termination contemplated below), the Executive
shall not have returned to the performance of the Executive's duties
hereunder on a full-time basis, the Company may terminate the Executive's
employment pursuant to a Notice of Termination given in accordance with
Section 2.11 hereof. In the event the Executive's employment is
terminated on account of the Executive's disability in accordance with
this Section 2.10, the Executive shall receive Accrued Benefits in
accordance with Section 2.7(a) hereof and shall remain eligible for all
benefits provided by any long term disability programs of the Company in
effect at the time of such termination.
2.11 Termination Notice and Procedure. Any Covered Termination by
the Company or the Executive shall be communicated by written Notice of
Termination to the Executive, if such Notice is given by the Company, or
to the Company, if such Notice is given by the Executive, all in
accordance with the following procedures and those set forth in Section
3.11 hereof:
(a) If such termination is for disability, Cause or Good
Reason, the Notice of Termination shall indicate in reasonable detail the
facts and circumstances alleged to provide a basis for such termination.
(b) Any Notice of Termination by the Company pursuant to a
Covered Termination shall have been approved, prior to the giving thereof
to the Executive, by a resolution duly adopted by a majority of the
directors of the Company (or any successor corporation) then in office.
(c) The Executive shall have thirty (30) days, or such longer
period as the Company may determine to be appropriate, to cure any conduct
or act, if curable, alleged to provide grounds for termination of the
Executive's employment for Cause under this Agreement.
(d) The recipient of the Notice of Termination shall personally
deliver, or mail in accordance with Section 3.11 hereof, written notice of
any dispute relating to such Notice of Termination to the party giving
such Notice within fifteen (15) days after receipt thereof. After the
expiration of such fifteen (15) days, the contents of the Notice of
Termination shall become final and not subject to dispute.
ARTICLE III
DEFINITIONS
3.1 Definitions.
(a) Cause. For purposes of this Agreement, the term "Cause"
means termination by the Company of the Executive's employment after a
Change of Control of the Company for any of the following, but only the
following, reasons: (i) the engaging by the Executive in intentional
conduct not taken in good faith which has caused demonstrable and serious
financial injury to the Company, as evidenced by a determination in a
binding and final judgement, order or decree of a court or administrative
agency of competent jurisdiction, in effect after exhaustion or lapse of
all rights of appeal, in an action, suit or proceeding, whether civil,
criminal, administrative or investigative; (ii) conviction of a felony (as
evidenced by binding and final judgment, order, or decree of a court of
competent jurisdiction, in effect after exhaustion or lapse of all rights
of appeal) which substantially impairs the Executive's ability to perform
his duties or responsibilities; and (iii) continuing willful and
unreasonable refusal by the Executive to perform the Executive's duties or
responsibilities (unless significantly changed without the Executive's
consent).
(b) Change in Control of the Company. For purposes of this
Agreement, a "Change in Control of the Company" shall mean a change in
control of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Act.
Without limiting the inclusiveness of the definition in the preceding
sentence, a Change in Control of the Company shall be deemed to have
occurred if:
(i) any Person (other than any employee benefit plan of
the Company or of any subsidiary of the Company or any Person
organized, appointed or established pursuant to the terms of any such
benefit plan) is or becomes the Beneficial Owner of securities of the
Company representing at least 30% of the combined voting power of the
Company's then outstanding securities or 30% of the Company's then
outstanding Class A Common Stock;
(ii) two or more of the members of the Board are not
Continuing Directors;
(iii) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the continuing
or surviving corporation or pursuant to which shares of the Company's
capital stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's capital stock immediately prior to the merger have the
same proportionate ownership of capital stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company; or
(iv) the shareholders' of the Company approve any plan or
proposal for the liquidation or dissolution of the Company.
(c) Continuing Director. For purposes of this Agreement, the
term "Continuing Director" means any member of the Board who was a member
of the Board on the date hereof and any successor of a Continuing Director
who is recommended to succeed a Continuing Director by a majority of the
Continuing Directors then on such Board.
(d) Code. For purposes of this Agreement, the term "Code"
means the Internal Revenue Code of 1986, including any amendments thereto
or successor tax codes thereof.
(e) Covered Termination. For purposes of this Agreement, the
term "Covered Termination" means any termination of the Executive's
employment where the Termination Date is any date during the Second
Employment Period.
(f) Good Reason. For purposes of this Agreement, the Executive
shall have a "Good Reason" for termination of employment after a Change in
Control of the Company in the event of:
(i) any breach of this Agreement by the Company, including
specifically any breach by the Company of its agreements contained in
Sections 3.1, 3.2, 3.3 or 3.4 hereof;
(ii) the removal of the Executive from, or any failure to
reelect the Executive to, any of the positions held with the Company
on the date of the Change in Control of the Company or any other
positions with the Company to which the Executive shall thereafter be
elected or assigned, except in the event that such removal or failure
to reelect relates to the termination by the Company of the
Executive's employment for Cause or by reason of disability pursuant
to Section 3.10 hereof;
(iii) a good faith determination by the Executive that
there has been a significant adverse change, without the Executive's
written consent, in the Executive's working conditions or status with
the Company from such working conditions or status in effect
immediately prior to the Change in Control of the Company, including
but not limited to (A) a significant change in the nature or scope
of the Executive's authority, powers, functions, duties or
responsibilities, or (B) a reduction in the level of support
services, staff, secretarial and other assistance, office space and
accoutrements; or
(iv) failure by the Company to obtain the Agreement
referred to in Section 4.4 hereof as provided therein.
(g) Notice of Termination. For purposes of this Agreement,
"Notice of Termination" shall mean a written notice given by the Executive
to the Company or by the Company to the Executive notifying the recipient
party of the Termination of the Executive's employment pursuant to the
terms of this Agreement.
(h) Person. For purposes of this Agreement, the term "Person"
shall mean any individual, firm, partnership, corporation or other entity,
including any successor (by merger or otherwise) of such entity, or a
group of any of the foregoing acting in consent.
(i) Second Employment Period. For purposes of this Agreement,
the term "Second Employment Period" means a period commencing on the date
of a Change in Control of the Company, and ending at 11:59 p.m. Milwaukee
time on the second anniversary of such date.
(j) Termination Date. For purposes of this Agreement, except
as otherwise provided in Section 2.8(b) and Section 4.4(a) hereof, the
term "Termination Date" means (i) if the Executive's employment is
terminated by the Executive's death, the date of death; (ii) if the
Executive's Employment is terminated by reason of voluntary early
retirement, as agreed in writing by the Company and the Executive, the
date of such early retirement which is set forth in such written
agreement; (iii) if the Executive's employment is terminated by reason of
disability pursuant to Section 2.10 hereof, the earlier of thirty (30)
days after the Notice of Termination is given or one day prior to the end
of the Employment Period; (iv) if the Executive's employment is terminated
by the Executive voluntarily (other than for Good Reason), the date the
Notice of Termination is given; and (v) if the Executive's employment is
terminated by the Company (other than by reason of disability pursuant to
Section 2.10 hereof) or by the Executive for Good Reason, the earlier of
thirty (30) days after the Notice of Termination is given or one day prior
to the end of the Employment Period. Notwithstanding the foregoing,
(A) If termination is by the Company for Cause pursuant to
Section 3.1(a) of this Agreement and if the Executive has cured the
conduct constituting such Cause as described by the Company in its Notice
of Termination within such thirty (30) day or shorter period, then the
Executive's employment hereunder shall continue as if the Company had not
delivered its Notice of Termination.
(B) If the Company shall give a Notice of Termination for Cause
or by reason of disability and the Executive in good faith notifies the
Company that a dispute exists concerning the termination within the
fifteen (15) day period following receipt thereof, then the Executive may
elect to continue his employment during such dispute and the Termination
Date shall be determined under this paragraph. If the Executive so elects
and it is thereafter determined that Cause or disability (as the case may
be) did exist, the Termination Date shall be the earlier of (1) the date
on which the dispute is finally determined, either (x) by mutual written
agreement of the parties or (y) in accordance with Section 4.9 hereof, (2)
the date of the Executive's death, or (3) one day prior to the end of the
Employment Period. If the Executive so elects and it is thereafter
determined that Cause or disability (as the case may be) did not exist,
then the employment of the Executive hereunder shall continue after such
determination as if the Company had not delivered its Notice of
Termination and there shall be no Termination Date arising out of such
Notice. In either case, this Agreement continues, until the Termination
Date, if any, as if the Company had not delivered the Notice of
Termination except that, if it is finally determined that the Company
properly terminated the Executive for the reason asserted in the Notice of
Termination, the Executive shall in no case be entitled to a Termination
Payment (as hereinafter defined) arising out of events occurring after the
Company delivered its Notice of Termination.
(C) If the Executive shall in good faith give a Notice of
Termination for Good Reason and the Company notifies the Executive that a
dispute exists concerning the termination within the fifteen (15) day
period following receipt thereof, then the Executive may elect to continue
his employment during such dispute and the Termination Date shall be
determined under this paragraph. If the Executive so elects and it is
thereafter determined that Good Reason did exist, the Termination Date
shall be the earlier of (1) the date on which the dispute is finally
determined, either (x) by mutual written agreement of the parties or (y)
in accordance with Section 4.9 hereof, (2) the date of the Executive's
death or (3) one day prior to the end of the Employment Period. If the
Executive so elects and it is thereafter determined that Good Reason did
not exist, then the employment of the Executive hereunder shall continue
after such determination as if the Executive had not delivered the Notice
of Termination asserting Good Reason and there shall be no Termination
Date arising out of such Notice. In either case, this Agreement
continues, until the Termination Date, if any, as if the Executive had not
delivered the Notice of Termination except that, if it finally determined
that Good Reason did exist, the Executive shall in no case be denied the
benefits described in Sections 2.6(b) and 2.7 hereof (including a
Termination Payment) based on events occurring after the Executive
delivered his Notice of Termination.
(D) If an opinion is required to be delivered pursuant to
Section 2.7(b) hereof and such opinion shall not have been delivered, the
Termination Date shall be the earlier of the date on which such opinion is
delivered or one day prior to the end of the Employment Period.
(E) Except as provided in Paragraphs (B) and (C) above, if the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination within the fifteen (15) day
period following receipt thereof and it is finally determined that the
reason asserted in such Notice of Termination did not exist, then (1) if
such Notice was delivered by the Executive, the Executive will be deemed
to have voluntarily terminated his employment and (2) if delivered by the
Company, the Company will be deemed to have terminated the Executive other
than by reason of death, disability or Cause.
ARTICLE IV
MISCELLANEOUS
4.1 Confidentiality Obligations of the Executive; Noncompetition.
(a) Confidentiality. During and for a period of two years
following the First Employment Period and the Second Employment Period,
the Executive shall hold in confidence and not directly or indirectly
disclose or use or copy or make lists of any confidential information or
proprietary data of the Company, except to the extent authorized in
writing by the Board or the Chief Executive Officer or required by any
court or administrative agency, other than to an employee of the Company
or a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Executive of duties as an executive
of the Company. Confidential information shall not include any
information known generally to the public or any information of a type not
otherwise considered confidential by persons engaged in the same business
or a business similar to that of the Company. All records, files,
documents and materials, or copies thereof, relating to the business of
the Company which the Executive shall prepare, or use, or come into
contact with, shall be and remain the sole property of the Company and
shall be promptly returned to the Company upon termination of employment
with the Company.
(b) Non-Competition. The Executive agrees that, for a period
of one year after the termination of the Executive's employment hereunder,
the Executive shall not, within North America, expect as permitted by the
Company's prior written consent (which shall not be unreasonably
withheld), participate in the management of any business which is a direct
and substantial competitor of the Company. The ownership of less than
five percent of any class of securities of any corporation listed on a
national securities exchange or regularly traded over the counter even
though such corporation may be a competitor of the Company as specified
above, shall not be deemed as constituting a financial interest in such
competitor.
4.2 Expenses and Interest. If, after a Change in Control of the
Company, a good faith dispute arises with respect to the enforcement of
the Executive's rights under this Agreement or if any legal or arbitration
proceeding shall be brought in good faith to enforce or interpret any
provision contained herein, or to recover damages for breach hereof, the
Executive shall recover from the Company any reasonable attorneys' fees
and necessary costs and disbursements incurred as a result of such
dispute, legal or arbitration proceeding ("Expenses"), and prejudgment
interest on any money judgment or arbitration award obtained by the
Executive calculated at the rate of interest announced by Xxxxxx Trust and
Savings Bank, Chicago, Illinois from time to time as its prime or base
lending rate from the date that payments to him should have been made
under this Agreement. Within ten (10) days after the Executive's written
request therefor, the Company shall pay to the Executive, or such other
person or entity as the Executive may designate in writing to the Company,
the Executive's reasonable Expenses in advance of the final disposition or
conclusion of any such dispute, legal or arbitration proceeding.
4.3 Payment Obligations Absolute. The Company's obligation during
and after the First Employment Period and the Second Employment Period to
pay the Executive the amounts and to make the benefit and other
arrangements provided herein shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any
setoff, counterclaim, recoupment, defense or other right which the Company
may have against him or anyone else. Except as provided in Section 4.2 of
this Agreement, all amounts payable by the Company hereunder shall be paid
without notice or demand. Except as provided in Section 3.7(b) of this
Agreement, each and every payment made hereunder by the Company shall be
final, and the Company will not seek to recover all or any part of such
payment from the Executive, or from whomsoever may be entitled thereto,
for any reason whatsoever.
4.4 Successors.
(a) If the Company sells, assigns or transfer all or
substantially all of its business and assets to any Person, or if the
Company merges into or consolidates or otherwise combines with any Person,
then the Company shall assign all of its right, title and interest in this
Agreement as of the date of such event to such Person, and the Company
shall cause such Person, by written agreement in form and substance
reasonably satisfactory to the Executive, to expressly assume and agree to
perform from and after the date of such assignment all of the terms,
conditions and provisions imposed by this Agreement upon the Company.
Failure of the Company to obtain such agreement shall be a breach of this
Agreement constituting "Good Reason" hereunder, except that for purposes
of implementing the foregoing, the date upon which such transfer or other
succession becomes effective shall be deemed the Termination Date. In
case of such assignment by the Company and of assumption and agreement by
such Person, as used in this Agreement, "Company" shall thereafter mean
such Person which executes and delivers the agreement provided for in this
Section 4.4 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law, and this Agreement shall
inure to the benefit of and be enforceable by such Person. The Executive
shall, in his discretion, be entitled to proceed against any and all of
such Persons, any Person which theretofore was such a successor to the
company (as defined in the first paragraph of this Agreement) and the
Company (as so defined) in any action to enforce any rights of the
Executive hereunder. Except as provided in this Subsection, this
Agreement shall not be assignable by the Company. This Agreement shall
not be terminated by the voluntary or involuntary dissolution of the
Company.
(b) This Agreement and all rights of the Executive shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All
amounts payable to the Executive under Sections 2.5, 2.6, 2.7, 2.8, 2.9
and 2.10 hereof if the Executive had lived shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and
representatives.
4.5 Severability. The provisions of this Agreement shall be
regarded as divisible, and if any of said provisions or any part hereof
are declared invalid or unenforceable by a court of competent
jurisdiction, the validity and enforceability of the remainder of such
provisions or parts hereof and the applicability thereof shall not be
affected thereby.
4.6 Amendment. This Agreement may not be amended or modified at any
time except by written instrument executed by the Company and the
Executive.
4.7 Withholding. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state or local
withholding or other taxes or charges which it is from time to time
required to withhold; provided, that the amount so withhold shall not
exceed the minimum amount required to be withheld by the law. The Company
shall be entitled to rely on an opinion of a nationally recognized tax
counsel if any question as to the amount or requirement of any such
withholding shall arise.
4.8 Certain Rules of Construction. No party shall be considered as
being responsible for the drafting of this Agreement for the purpose of
applying any rule construing ambiguities against the drafter or otherwise.
No draft of this Agreement shall be taken into account in construing this
Agreement. Any provision of this Agreement which requires an agreement in
writing shall be deemed to require that the writing in question be signed
by the Executive and an authorized representative of the Company.
4.9 Governing Law; Resolution of Disputes. This Agreement and the
rights and obligations hereunder shall be governed by and construed in
accordance with the laws of the State of Wisconsin. Any dispute arising
out of this Agreement shall, at the Executive's election, be determined by
arbitration under the rules of the American Arbitration Association then
in effect or by litigation. Whether the dispute is to be settled by
arbitration or litigation, the venue for the arbitration or litigation
shall be Wisconsin Rapids, Wisconsin, or, at the Executive's election, if
the Executive is no longer residing or working in the Wisconsin Rapids,
Wisconsin metropolitan area, in the judicial district encompassing the
city in which the Executive resides. The parties consent to personal
jurisdiction in each trial court in the selected venue having subject
matter jurisdiction notwithstanding their residence or situs, and each
party irrevocably consents to service of process in the manner provided
hereunder for the giving of notices.
4.10 Notice. Notices given pursuant to this Agreement shall be in
writing and, except as otherwise provided by Section 3.11(d) hereof, shall
be deemed given when actually received by the Executive or actually
received by the Company's Secretary or any officer of the Company other
than the Executive. If mailed, such notices shall be mailed by Unites
States registered or certified mail, return receipt requested, addressee
only, postage prepaid, if to the Company, to Northland Cranberries, Inc.,
Attention: Secretary, 000 Xxxxx Xxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxxx
Rapids, Wisconsin 54495-8020, or, if to the Executive, at the address set
forth below the Executive's signature to this Agreement, or to such other
address as the party to be notified shall have heretofore given to the
other party in writing.
4.11 No Waiver. No waiver by either party at any time of any breach
by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by the other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.
4.12 Headings. The heading herein contained are for reference only
and shall not affect the meaning or interpretation of any provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
EXECUTIVE NORTHLAND CRANBERRIES, INC.
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxx Xxxx Xxxxxxxxxxx
Chairman of the Board and
Chief Executive Officer