Exhibit 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made and entered into as of the
18/th/ day of March 2002, between AMERICAN SEAFOODS GROUP LLC ("Employer" or the
"Company") and Xxxx Xxxxxxxx who resides at 0000 00/xx/ Xxxxxx XX Xxx Xxxxxx,
XX, 00000 ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer desires to employ Executive and Executive desires to
accept employment with Employer upon the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, and intending to be legally bound hereby, it is hereby
agreed as follows:
1. Employment Term. Employer agrees to employ Executive, and Executive
agrees to be so employed, in the capacity of Treasurer of American Seafoods
Group for a term commencing on the date hereof and ending on the third
anniversary of the date hereof (the "Initial Term"); provided, however, that,
notwithstanding anything to the contrary set forth in this Agreement, this
Agreement may be earlier terminated pursuant to the terms hereof. The terms of
this Agreement will automatically extend past the Initial Term for succeeding
periods of one year each unless either party terminates this Agreement as of the
end of the Initial Term, or as of the end of any subsequent one-year period (in
either case, the "Termination Date"), by delivering notice to the other party
specifying the applicable Termination Date not earlier than 180 days and not
later than 120 days prior to the date so specified. "Employment Term" as used
herein shall mean the term of this Agreement including any automatic extensions
pursuant to the preceding sentence.
2. Position and Duties. Executive shall (in accordance with Section 11
hereof) diligently and conscientiously devote his full business time, attention,
energy, skill and best efforts to the business of Employer and the discharge of
his duties hereunder. Executive's duties under this Agreement shall be to serve
as Treasurer of American Seafoods Group, with the responsibilities, rights,
authority and duties customarily pertaining to such office and as may be
established from time to time by or under the direction of the Board of
Directors or similar governing body of Employer (the "Board") or its designees,
and Executive shall also act as an officer and/or director and/or manager of
such subsidiaries or Employer as may be designated by the Board, commensurate
with Executive's office, all without further compensation, other than as
provided in this Agreement.
3. Compensation.
(a) Base Salary. Employer shall pay to Executive base salary compensation
at an annual rate of $185,000. In January 2003 and annually thereafter, the
Board shall review Executive's base Salary in light of performance of Executive
and the Company, and may, in its sole discretion, increase or decrease (but not
decrease below $185,000) such base salary by an amount it determines to be
appropriate. Executive's annual base salary payable hereunder, as it may be
increased or decreased from time to time, is referred to herein as "Base
Salary." Base Salary shall be paid in equal installments in accordance with
Employer's payroll practices in effect from time to time for executive officers,
but in no event less frequently than monthly.
(b) Bonus. In addition to Base Salary, Executive may receive an annual
bonus of an amount to be determined by the Board in its sole discretion, taking
into consideration individual and corporate performance. Further, Executive
shall be entitled to receive with respect to each fiscal year during the
Employment Term a nondiscretionary bonus if the EBITDA (as defined on Schedule I
hereto) of Parent and its subsidiaries in such fiscal year exceeds certain
targets. The amount and calculation of such bonus are described with
particularity on Schedule I hereto. In no event will (i) the nondiscretionary
bonus be payable if at the time of payment or at any time during the year of
measurement the Company was in default under any credit agreement relating to
indebtedness for borrowed money or (ii) the annual bonus (including
discretionary and nondiscretionary portions thereof) in any year exceed 150% of
Executive's Base Salary. The annual bonus with respect to any year, if any shall
be paid within 30 days after the receipt by the Board of audited financial
statements for Parent and its subsidiaries for the pertinent year.
(c) Equity Investments by Executive. Concurrently with the signing of
this Agreement, Executive is purchasing, pursuant to a subscription agreement,
dated as of the date hereof, between Executive and Parent, a number of Regular
Units (to be determent at market value) in Parent for an aggregate purchase
price of $250,000. Executive's purchase of such partnership units is being
funded by a loan in the amount of $200,000 from Parent to Executive pursuant to
the terms and condition of the loan documentation attached as Exhibit A hereto.
(d) Option Grants.
(i) Concurrently with the signing of this Agreement, Company shall grant
Executive non-qualified options to purchase 5,500 Regular Units in Parent, at a
price to be agreed.
2
(ii) The grant of 5,500 options pursuant to this Paragraph 3(d) shall be
compromised if 1,850 Series A Options, 1,850 Series B Options and 1,850 Series C
Options. All such options shall be subject to the terms and conditions set forth
in the Option Agreements applicable to such Series, forms of which are attached
hereto as Exhibits X-0, X-0 and B-3 and the American Seafoods L.P. Year 2000
Unit Option Plan referred to therein.
4. Benefits. Executive shall be eligible to participate in all employee
benefit programs of Employer offered from time to time during the term of
Executive's employment hereunder by Employer to employees or executives of
Executive's rank, to the extent that Executive qualifies under the eligibility
provisions of the applicable plan or plans, in each case consistent with
Employer's then-current practice as approved by the Board from time to time. The
foregoing shall not be construed to require Employer to establish such plans or
to prevent the modification or termination of such plans once established, and
no such action or failure thereof shall affect this Agreement. Executive
recognizes that Employer and its affiliates have the right, in their sole
discretion, to amend, modify or terminate their benefit plans without creating
any rights in Executive.
5. Vacation. Executive shall be entitled to up to four weeks of paid
vacation per calendar year. A maximum of one week of vacation time may be
carried over from one calendar year and into the following calendar year;
provided documentation therefore is submitted no later than 45 days after such
expense is incurred.
6. Business Expenses. To the extent that Executive's reasonable and
necessary expenditures for travel, entertainment and similar items made in
furtherance of Executive's duties under this Agreement comply with Employer's
expense reimbursement policy, are wholly or partially deductible by Employer for
federal income tax purposes pursuant to the Internal Revenue Code of 1986, as
amended and are documented and substantiated by Executive as required by the
Internal Revenue Service and the policies of Employer, Employer shall reimburse
the Executive for such expenditures; provided documentation therefore is
submitted no later than 45 days after such expense is incurred.
7. Termination by the Company.
(a) Employer shall have the right to terminate the Employment Term
under the following circumstances (and also as contemplated by Section 8(b)):
(i) upon the death of Executive;
3
(ii) in the event of a disability which prevents or seriously
inhibits Executive from performing his duties for 60 consecutive days as
determined in good faith by the Board, upon 30 days written notice from
Employer to Executive; or
(iii) for Cause (as defined below).
"Cause" as used in this Agreement shall mean (i) Executive's commission of a
felony or any other crime involving moral turpitude, fraud, misrepresentation,
embezzlement or theft, (ii) Executive's engaging in any activity that is harmful
(including, without limitation, alcoholic or other self-induced affliction), in
a material respect, to the Company or any of its subsidiaries, monetarily or
otherwise, as determined by a majority of the Board; (iii) Executive's material
malfeasance (including without limitation, any intentional act of fraud or
theft), misconduct, or gross negligence in connection with the performance of
his duties hereunder; (iv) Executive's significant violation of any statutory or
common law duty of loyalty to the Company or any of its subsidiaries; (v)
Executive's material breach of the Agreement or of a material Company policy
(including without limitation, disclosure or misuse of any confidential or
competitively sensitive information or trade secrets of the Company or a
subsidiary); or (vi) Executive's refusal or failure to carry out directives or
instructions of the Board that are consistent with scope and nature of
Executive's duties and responsibilities set forth herein, in the case of clause
(v) or (vi) above, only if such breach or failure continues for more than 10
days following written notice from Employer describing such breach or failure.
(b) If this Agreement is terminated pursuant to Paragraph 7(a), or for
any other reason (except by Executive pursuant to Paragraph 8 or by Employer
other than pursuant to Paragraph 7(a)), Executive's rights and Employer's
obligations hereunder shall forthwith terminate except that Employer shall pay
Executive his Base Salary earned but not yet paid through the date of
termination. In addition, if the Executive is terminated pursuant to Paragraph
7(a)(i) or 7(a)(ii), Employer shall also pay Executive within 30 days following
receipt of audited financial statements for the year during which such
termination occurred, a prorated annual bonus in respect of the partial year
during which such termination occurred, the amount to be equal to the full
amount of the nondiscretionary bonus, in any, that would be due under Section
3(b) multiplied by a fraction, the numerator of which is the number of days in
such fiscal year prior to such termination and the denominator of which is 365.
8. Termination by Executive.
(a) Executive shall have the right to terminate the Employment Term for
Good Reason (as defined below), upon 60 days' written notice to the Board given
within 60 days following the occurrence of an event constituting Good Reason;
provided that Employer shall have 10 days after the date such notice has been
given to the Board in
4
which to cure the conduct specified in such notice. For purposes of this
Agreement "Good Reason" shall mean:
(i) the Company's failure to pay or provide when due Executive's
Base Salary, which failure is not cured within 10 days after the
receipt by the Board from Executive of a written notice referring to
this provision and describing such failure; or
(ii) the failure to continue Executive in his position as
provided in Paragraph 1 or removal of him from such position; or
(iii) a material diminution of Executive's responsibilities,
duties or status, which diminution is not rescinded within 30 days
after the date of receipt by the Board from Executive of a written
notice referring to this provision and describing such diminution.
(b) If this Agreement is terminated pursuant to Paragraph 8(a), or if
Employer shall terminate Executive's employment under this Agreement other than
pursuant to Paragraph 7(a), Executive shall be entitled to the following, which
he acknowledges to be fair and reasonable, as his sole and exclusive remedy, in
lieu of all other remedies at law or in equity, for any such termination:
(i) Base Salary earned but not yet paid through date of
termination;
(ii) a prorated annual bonus in respect of the partial year
during which such termination occurred, the amount to be equal to the
full amount of the nondiscretionary bonus, if any, that would be due
under Section 3(b) multiplied by a fraction, the numerator of which is
the number of days in such fiscal year prior to such termination and
the denominator of which is 365; and
(iii) an amount equal to the Executive's actual Base Salary (not
including any bonus paid or payable) for the 12-month period
immediately prior to such termination (or the period during which
Executive was employed by Employer if less than 12 months), payable in
24 equal installments during the 24-month period following such
termination (the "Severance Pay Period").
In the event of any such termination, Executive shall use commercially
reasonable efforts to secure the alternative employment. During the last six
months of the Severance Pay Period, any compensation, income or benefits earned
by or paid to (in case or otherwise) the Executive as an employee of or
consultant to a company other than the Company shall reduce the amount of
severance payments payable during such six-month period pursuant to Paragraph
8(b)(iii).
5
(c) If Executive terminates his employment at any time during the term
of this Agreement other than pursuant to Section 8(a), without limiting or
prejudicing any other legal or equitable rights or remedies which Employer may
have upon such breach by Executive, Executive will receive his Base Salary
earned but not yet paid through the date of termination.
9. Services Unique. Executive recognizes that Executive's services
hereunder are of a special, unique, unusual, extraordinary and intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated for in damages, and in the event of a breach of this
Agreement by Executive (particularly, but without limitation, with respect to
the provisions hereof relating to the exclusivity of Executive's services and
the provisions of Paragraph 11), the Company shall, in addition to all other
remedies available to it, be entitled to equitable relief by way of an
injunction and any other legal or equitable remedies. Anything to the contrary
herein not withstanding, the Company may seek such equitable relief in a federal
or state court in New York, and the Executive hereby submits to jurisdiction in
those courts.
10. Protection of the Company's Interests. To the fullest extent
permitted by the law, all rights worldwide with respect to any intellectual or
other property of any nature conceived, developed, produced, created, suggested
or acquired by Executive during the period commencing on the date hereof and
ending six months following the termination of Executive's employment hereunder
shall be deemed to be a work made for hire and shall be the sole and exclusive
property of Employer. Executive agrees to execute, acknowledge and deliver to
Employer at Employer's request, such further documents as the Employer finds
appropriate to evidence the Employer's right in such property. Executive further
acknowledges that in performing his duties hereunder, he will have access to
proprietary and confidential information and to trade secrets of Employer with
its affiliates. Any confidential and/or proprietary information of Employer or
its affiliates shall not be used by Executive or disclosed or made available by
Executive to any person except (i) as required in the course of Executive's
employment or (ii) when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of Employer or by any
administrative or legislative body (including a committee thereof) with apparent
jurisdiction to order him to divulge, disclose or make accessible such
information, it being understood that Executive will promptly notify Employer of
such requirement so that Employer may seek to obtain a protective order. Upon
expiration of earlier termination of the term of Executive's employment,
Executive shall return to Employer all such information that exists in written
or physical form (and all copies thereof) under Executive's control.
6
11. Non-Competition.
(a) Exclusivity of Employment. Executive agrees that his employment
hereunder is on an exclusive basis, and that during the Employment Term, he will
not engage in any other business activity. Notwithstanding the foregoing,
nothing in this Agreement shall preclude Executive from serving on the Board of
Directors of other corporations (subject to approval of the Board which shall
not be unreasonably withheld), from engaging in charitable and public service
activities, or engaging in speaking and writing activities, or from managing his
personal investments, provided that such activities are disclosed in writing to
the Board in a notice that references this provision and do not interfere with
Executive's availability or ability to perform his duties and responsibilities
hereunder.
(b) Noncompete. Executive agrees that during the Employment Term, and
the Severance Pay Period (if applicable), and the 12-month period thereafter, he
shall not, directly or indirectly, engage in, or participate as an investor in,
an officer, an employee, director or agent of, or consultant for, any entity
engaging in any line of business competitive with that of Employer or any of its
subsidiaries, or any line of business which Employer or any of its subsidiaries
is contemplating; provided however that, nothing herein shall prevent him from
investing as less than 5% shareholder in the securities of any company listed on
a national securities exchange or quoted on an automated quotation system.
Executive's participation in an entity in any of the foregoing capacities, other
than participation described in the foregoing proviso, being sometimes referred
to herein as being a "Participant."
(c) Nonsolicitation of Employees. Executive agrees that during the
Employment Term and the Severance Pay Period (if applicable), and the 36-month
period thereafter (the "Nonsolicitation Period"), he will not directly or
indirectly, employ, or be a Participant in any entity that employs, any person
previously employed by the Company or any of its subsidiaries or in any way
induce or attempt to induce any person to leave the employment of the Company or
any of its subsidiaries.
(d) Nonsolicitation of Customers. Executive agrees that during the
Nonsolicitation Period, he will not directly nor indirectly, solicit or do
business with, or be a Participant in any entity that solicits or does business
with, any customer of Employer or any of its subsidiaries, nor shall Executive
in any way induce or attempt to induce any customer of Employer to do business
with any person or entity other than Employer; provided that, the foregoing
shall not restrict Executive or any entity in which he is a Participant from
soliciting or doing business with any customer of Employer or any of its
subsidiaries with respect to a line of business that Employer or any of its
subsidiaries is contemplating. Notwithstanding the foregoing, after the
expiration of the noncompetition period set forth in Paragraph 11(b), Executive
may participate as an investor in, an officer, employee, director of or agent of
or consultant for an entity that
7
does business with one or more customers of Employer so long as Executive has
not contact with such customer and has no direct or indirect involvement in the
solicitation of business from any such customer.
(e) Standstill. Executive agrees that during the Nonsolicitation
Period, Executive shall not, except at the specific written request of the
Board:
(i) engage in or propose, or be a Participant in any entity that
engages in or proposes, a Rule 13e-3 Transaction (as defined in Rule
13e-3 under the Securities Exchange Act of 1934) or any other material
transaction, between Parent, Employer or any of its subsidiaries, on
the one hand, and Executive or any entity in which Executive is a
Participant, on the other hand;
(ii) acquire any equity securities of Parent, Employer or any of
its subsidiaries (other than partnership units issued to Executive by
Parent or issued to Executive by Parent upon exercise of options issued
to Executive by Parent), or be a participant in any entity that
acquires any equity securities of Parent, Employer or any of its
subsidiaries;
(iii) solicit proxies, or be a Participant in any entity that
solicits proxies, or become a participant in any solicitation of
proxies, with respect to the election of directors of Parent, Employer
or any of its subsidiaries in opposition to the nominees recommended by
the Board of any such entity; or
(iv) directly or indirectly, engage in or participate in any
other activity that would be reasonably expected to result in change of
control of Parent, Employer or any of its subsidiaries.
The foregoing provisions of this Paragraph shall not be construed to prohibit or
restrict the manner in which the Executive exercises his voting rights in
respect to partnership units in Parent acquired in a manner that is not a
violation of the terms of this Paragraph 11.
12. Nondisparagement. Executive will not at any time during or after
this Agreement directly (or through any other person or entity) make any public
or private statements (whether oral or in writing) which are derogatory or
damaging to the Company, its business, activities, operations, affairs,
reputation or prospects or any of its officers, employees, directors or
shareholders. Employer will not at any time during or after the term of this
Agreement directly (or through any other person or entity) make any defamatory
public or private statements (whether oral or in writing) concerning the
Executive.
8
13. Representations of the Parties. Executive represents and warrants
to Employer that Executive has the capacity to enter into this Agreement and the
other agreements referred to herein, and that the execution, delivery and
performance of this Agreement and such other agreements by Executive will not
violate any agreement, undertaking or covenant to which Executive is party or is
otherwise bound. Employer represents to Executive that it is a limited liability
company or limited partnership, as applicable, and is duly organized and validly
existing under the laws of the State of Delaware, that it is fully authorized
and empowered by action of its Board or general partner, as applicable, to enter
into this Agreement and the other agreements referred to herein, and that
performance of its obligations under this Agreement and such other agreements
will not violate any agreement between it and any other person, firm or entity.
14. Key Man Insurance. Each of Employer and Centre Partners Management
LLC or its affiliates (collectively, "Centre Partners") will have the right
throughout the term of this Agreement to obtain or increase insurance on
Executive's life in such amount as the Board or Centre Partners (as applicable)
determines, the name of the Employer or Centre Partners, as the case may be, and
for its sole benefit or otherwise, in the discretion of the Board or Centre
Partners (as applicable). Executive will cooperate in any and all necessary
physical examinations without expense to Executive, supply information, and sign
documents, and otherwise cooperate fully with each Employer and Centre Partners
as Employer or Centre Partners (as applicable) may request in connection with
any such insurance. Executive warrants and represents, that, to his best
knowledge, he is in good health and does not suffer from any medical condition
which might interfere with the timely performance of his obligations under this
Agreement.
15. Notices. All notices given under this Agreement shall be in writing
and shall be deemed to have been duly given (a) when delivered personally, (b)
three business days after being mailed by first class certified mail, return
receipt requested, postage prepaid, (c) one business day after being sent by a
reputable overnight delivery service, postage or delivery charges prepaid, or
(d) on the date on which a facsimile is transmitted to the parties at their
respective addresses state below. Any party may change its address for notice
and the address to which copies must be sent by giving notice of the other
parties in accordance with this Paragraph 15, except that any such change of
address notice shall not be effective unless and until received.
9
If to the Employer or Parent:
c/o Centre Partners Management LLC
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-332-5801
Attention: Xxxxx Xxxxxxxxx
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Executive, to his address set forth above.
with a copy to:
[TO COME]
Facsimile: _________________
Attention: _________________
16. Entire Agreement, Amendments, Waivers, Etc.
(a) No amendments or modifications of this Agreement shall be effective
unless set forth in a writing signed by the Company and Executive. No waiver by
either party of any breach by the other party of any provision or condition of
this Agreement shall be deemed a waiver of any similar or dissimilar provision
or condition at the same or any prior or subsequent time. Any waiver must be in
writing and signed by the waiving party.
(b) This Agreement, together with the Exhibits and Schedules hereto and
the documents referred to herein and therein, sets forth the entire
understanding and agreement of the parties with respect to the subject matter
hereof and supersedes all prior oral and written understandings and agreements.
There are no representations, agreements, arrangements or understandings, oral
or written, among the parties relating to the subject matter hereof which are
not expressly set forth herein, and no party hereto has been induced to enter
into this Agreement, except by the agreements expressly contained herein.
10
(c) Nothing herein contained shall be construed so as to require the
commission of any act contrary to law, and wherever there is a conflict between
any provision of this Agreement and any present or future statute, law,
ordinance or regulation, the latter shall prevail, but in such event the
provision of this Agreement affected shall be curtailed and limited only to the
extent necessary to bring it within legal requirements.
(d) This Agreement shall inure to the benefit of and be enforceable by
Executive and his heirs, executors, administrators and legal representatives, by
the Company and its successors and assigns, by Parent and its successors and
assigns and, with respect to Xxxxxxxxx 00, Xxxxxx Partners and its successors
and assigns. This agreement and all rights hereunder are personal to Executive
and shall not be assignable. Each of the Company and Parent may assign its
rights under this Agreement to any successor by merger, consolidation, purchase
of all or substantially all of its and its subsidiaries' assets, or otherwise;
provided that such successor assumes all of the liabilities, obligations and
duties of the Company under this Agreement, either contractually or as a matter
of law.
(e) If any provisions of this Agreement or the application thereof is
held invalid, the invalidity shall not affect the other provisions or
application of this Agreement that can be given effect without the invalid
provisions or application, and to this end the provisions of this Agreement are
declared to be severable.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of conflict of laws.
18. Right to Equitable Relief. Executive recognizes that Employer will
have no adequate remedy at law for this breach of provision of Paragraph 10, 11
or 12 and in the event of any such breach or threatened breach he agrees that
Employer shall be entitled to obtain equitable relief in addition to other
remedies available at law and/or hereunder.
19. Taxes. All payments required to be made to Executive hereunder,
whether during the term of this employment hereunder or otherwise shall be
subject to all applicable federal, state and local tax withholding laws.
20. Headings, Etc. The headings set forth herein are included solely
for the purpose of identification and shall not be used for the purpose of
construing the meaning of the provisions of this Agreement. Unless otherwise
provided, references herein to Exhibits, Schedules and Paragraphs refer to
Exhibits and Schedules to and Paragraphs of this Agreement.
11
21. Arbitration. Any dispute or controversy between Employer and
Executive, arising out of or relating to this Agreement, the breach of this
Agreement, or Arbitration Association in accordance with its Commercial Rules
then in effect and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator shall have the
authority to award any remedy of relief that a court of competent jurisdiction
could order or grant, including, without limitation, the issuance of an
injunction. However, either party may, without inconsistency with this
arbitration provision, apply to any court having jurisdiction over such dispute
or controversy and seek interim provisional, injunctive or other equitable
relief until the arbitration award is rendered or the controversy is otherwise
resolved. Except as necessary in court proceedings to enforce this arbitration
provision or an award rendered hereunder, or to obtain interim relief, neither
party nor an arbitrator may disclose the existence, content or results of any
arbitration hereunder without the prior written consent of Employer and
Executive.
22. Survival. Executive's obligations under the provisions of
Paragraphs 10, 11 and 12, as well as provisions of Paragraphs 6, 7(b), 8(b) and
15 through and including 19 and Paragraphs 21 and 22, shall survive the
termination or expiration of this Agreement.
23. Construction. Each party has cooperated in the drafting and
preparation of this Agreement. Therefore, in any construction to be made of this
agreement, the same shall not be construed against any party on the basis that
the party was the drafter.
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYER:
AMERICAN SEAFOODS GROUP LLC
/s/ Xxxxx X. Xxxxx
By ___________________________
Name: Xxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
EXECUTIVE:
/s/ Xxxx Xxxxxxxx
______________________________
Xxxx Xxxxxxxx
13
