EXHIBIT 10.7
BI-XXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of September 1, 1990 between
XXXXXX INCORPORATED, a Delaware corporation (the "Company"), and XXXXXXXXX X.
XXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been employed in the beverage alcohol industry
for a number of years, and his experience, ability and knowledge would be
extremely valuable to the Company; and
WHEREAS, the Employee is willing to serve in an executive capacity with the
Company on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereafter set forth, and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged, it
is hereby mutually agreed as follows:
1. Employment. Company hereby agrees to employ Employee, and Employee
hereby accepts such employment, on the terms and conditions set forth herein,
for the "Term" as defined in this Section 1. The Term shall commence on
September 1, 1990 and, unless sooner terminated pursuant to Section 5 herein, or
extended under the terms of this Section 1, shall end on March 31, 1995. The
Term shall be automatically extended for additional one-year periods unless
Employee notifies the Board of Directors of the Company (the "Directors"), or
the Directors notify Employee, that the notifying party does not wish to extend
the then existing Term, which notice must be given in the manner described in
Section 10
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hereof at least one hundred eighty (180) days prior to the expiration of the
then existing Term.
2. Position and Duties. Employee shall serve as the President and Chief
Operating Officer of the Company and as a member of the boards of directors of
the Company and its principal subsidiaries, and as a member of a committee
comprised of some of the Company's Vice Presidents which consults with and
advises the Chief Executive Officer of the Company, but which has no authority
over the Chief Executive Officer of the Company (the "Management Committee").
The Employee shall report and be responsible directly to the Chief Executive
Officer of the Company, with such powers and duties consistent with his offices
as may from time to time be authorized or directed by the Company's Chief
Executive Officer. Employee shall devote his full-time services to the
employment provided for herein. All services and duties of Employee rendered
hereunder shall be performed faithfully, diligently and competently and to the
highest standards of loyalty.
3. Place of Employment. In connection with his employment by the Company,
the Employee shall not be required to relocate or transfer his principal
residence from the metropolitan Chicago, Illinois area and shall not be required
to perform services which would make the continuance of his principal residence
in such area unreasonably difficult or inconvenient for him.
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4. Compensation.
(a) The Employee shall receive a base salary, which shall be initially
at the rate or $275,000 per annum ("Base Salary"), payable semi-monthly. It
is contemplated that the Chief Executive officer will review the Employee's
Base Salary each April 1 during the Term hereof commencing April 1, 1991;
and, the Chief Executive Officer may, at his discretion, increase the
Employee's Base Salary from time to time based upon the Employee's
performance and other relevant factors. Any increase in Base Salary shall
in no way limit or reduce any other obligation of the Company hereunder;
and, once established at an increased specified rate, the Employee's Base
Salary hereunder shall not be reduced.
(b) Expenses. In addition, the Company agrees to reimburse all
ordinary and necessary expenses incurred by the Employee in performing
services hereunder, subject to appropriate accounting in accordance with
Company policy.
(c) Participation in Benefit Plans; Fringe Benefits. While employed
hereunder, the Employee shall be entitled to participate in or receive
benefits under any employee benefit plans and fringe benefits programs
which are from time to time made available to key executives of the Company
including, without limitation, the Xxxxxx Incorporated Management Incentive
Plan
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(Exhibit 4(c) attached hereto) and the use of a Company owned or leased
car, subject to such general modifications, increases or reductions in such
employee benefit plans and fringe benefits programs as may be made from
time to time by the Company.
(d) Vacations. During each fiscal year of the Company, Employee shall
be entitled to 20 business days of paid vacation. The paid vacation days
provided for hereunder must be used during the applicable fiscal year or
lost, and shall not accumulate from fiscal year to fiscal year.
5. Termination.
(a) Anything herein contained to the contrary notwithstanding, the
Employee's employment by the Company shall terminate (subject to the
obligations herein provided) prior to the expiration of the Term on the
happening of any of the following events:
(i) The death of the Employee;
(ii) The termination of the Employee's employment by the
Directors by written notice to Employee at any time within sixty (60)
days of the Complete Disability of the employee, as hereinafter
defined.
(iii) The termination of the Employee's employment by the
Directors for "Cause", as hereinafter defined, by written notice to
Employee
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at any time within forty-five (45) days of the event constituting
"Good Reason" hereunder: or
(iv) The termination of the Employee's employment by the Employee
for "Good Reason", as hereinafter defined, by written notice to the
Company at any time within forty-five (45) days of the event
constituting "Good Reason" hereunder; or
(v) The termination of the Employee's employment upon
"Retirement", as hereinafter defined.
(b) As used in this Agreement, the following terms shall be defined as
follows:
(i) "Cause" shall mean (X) the willful malfeasance or gross
negligence by the Employee in the performance of his duties hereunder,
(Y) the willful breach by the Employee of any material provision of
this Agreement, or (Z) the engaging by the Employee in misconduct
(whether in connection with his duties hereunder or otherwise) which
is demonstrably injurious to the Company monetarily or otherwise.
(ii) "Complete Disability" shall mean the inability of the
Employee to perform his duties hereunder due to illness, accident or
any other physical or mental incapacity, for a period of two hundred
seventy (270) days in the aggregate within
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any given period of twelve (12) consecutive months during the Term, it
being understood that, notwithstanding his complete disability, the
Employee shall be entitled to receive the Base Salary provided for
herein until the expiration of twelve (12) months from the first day
of such inability to perform in the above mentioned two hundred
seventy (270) days. Disability because of illness, accident or any
other physical or mental incapacity shall not be a basis for discharge
by the Company except as provided for herein for Complete Disability.
(iii) Employee shall have "Good Reason" if: (X) without his
consent, Employee's authority or responsibilities hereunder are
diminished or Employee is removed from the office of President and
Chief Operating Officer of the Company, from the boards of directors
of the Company or its principal subsidiaries, or from the Management
Committee; or (Y) the Company willfully fails to perform any of its
material obligations to Employee hereunder, including, without
limitation, failing to provide Employee with fringe benefits, or to
include Employee in benefit plans, available to other key executives
of the Company, requiring Employee to move his principal place of
residence outside of the
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metropolitan Chicago area or making the continuance of a principal
residence in the metropolitan Chicago area unreasonably difficult or
inconvenient, or failing to make regular Base Salary payments at the
level required in Section 4(a) hereof.
(iv) "Retirement" means retirement in accordance with the
Company's retirement policy from time to time in effect generally
applicable to the Company's salaried employees, including any
"voluntary early retirement" under such policy.
6. Post-Termination Benefits.
(a) If Employee's employment shall be terminated at any time (i) by
reason of his death, Complete Disability or Retirement or (ii) by the
employee for Good Reason pursuant to Section 5(a) (iv) hereof, or if the
Company decides not to extend the Term hereof as provided in Section 1
hereof, the Company shall pay to the Employee a post-termination benefit
equal to one hundred percent (100%) of his then current Base Salary.
(b) If Employee's employment shall be terminated by virtue of the
expiration of the Term after notice from Employee to the Directors that
Employee does not intend to extend the Term as provided in Section 1
hereof, then the Company shall pay to Employee a post-termination benefit
equal to one-half of the amount payable under Section 6(a) above.
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(c) The post-termination benefits payable under Sections 6(a) and 6(b)
hereof shall be payable in a lump sum as soon as practicable after the date
of termination of the Employee's employment.
(d) In the event that the Employee's employment shall be terminated by
the Employee for Good Reason pursuant to Section 5(a)(iv) hereof, or if
Employee's employment is terminated by the Company for reasons other than
the death of Employee, Employee's Complete Disability or Cause under
Sections 5(a)(i), 5(a)(ii) and 5(a)(iii) hereof (it being understood that
an election by the Company not to extend the Term is not a "termination by
the Company" hereunder) the Employee shall be paid a supplementary
post-termination benefit in an amount equal to what he otherwise would have
been entitled to receive as his share of the Company's contribution to its
salaried employees' profit-sharing and retirement plan for the fiscal year
in which such termination occurs based on his "compensation" for such
fiscal year through the date of termination, if such profit-sharing plan is
in effect for such year, and if such plan does not credit Employee with
such contributions when payments are made in respect of the circumstances
described in this Section 6(d). Said payment, if any, shall be made
promptly after the
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Company's contribution to said plan for the fiscal year in which such
termination occurs.
(e) It is understood and agreed that the Employee shall not have a
duty to seek other employment for the purpose of minimizing any
post-termination benefits or liquidated damages payable by the Company
hereunder.
(f) In the event the Employee's employment shall be terminated at any
time by the Directors for Cause pursuant to Section 5(a) (iii) hereof, the
Company shall have no obligation to pay any compensation or other benefits
under this Section 6 or otherwise for any period following such
termination.
7. Liquidated Damages. In addition to the post-termination benefits payable
pursuant to Section 6 hereof, in the event the Employee's employment is
terminated by the Employee for Good Reason pursuant to Section 5(a) (iv) hereof,
or if Employee's employment is terminated by the Company for reasons other than
the death of Employee, Employee's Complete Disability or cause under Sections
5(a)(i), 5(a)(ii) and 5(a)(iii) hereof (it being understood that an election by
the Company not to extend the Term is not a "termination by Company" hereunder),
the Company shall pay to the Employee, as liquidated damages and in lieu of any
further salary payments to the Employee for periods subsequent to the date of
termination, an amount equal to the product of (i) his then current Base Salary,
multiplied by (ii) the number of years
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(including fractions thereof) remaining in the then Term of this Agreement. The
amount so payable shall be payable to the Employee in a lump sum as soon as
practicable after the date of termination of the Employee's employment.
8. Non-Competition.
(a) The Employee hereby agrees that he will not, either during the
term of his employment by the Company or thereafter, disclose any material
confidential information concerning any aspect of the business of the
Company or any of its subsidiaries or affiliates to any person, firm or
corporation, except in the furtherance of the interests of the Company and
its subsidiaries and affiliates and with the prior written consent of the
Company.
(b) The Employee acknowledges that the Company's business is highly
competitive and that a violation by Employee of the covenant set forth in
this Section 8 would cause immeasurable and irreparable damage to the
Company and its subsidiaries and affiliates. The Employee accordingly
agrees, without limiting the remedies available to the Company or any of
its subsidiaries or affiliates, that any violation of such covenant may be
enjoined by any court of competent jurisdiction.
(c) As used in this Section 8, "Company" means the Company, its
subsidiaries and affiliates.
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(d) The Company hereby acknowledges that the Employee has informed the
Company that the Employee is a limited partner of Virgin Islands
Acquisition Partnership ("YIAP"), and a shareholder in and director of
VIRIL Acquisition Corp., a New York corporation and the corporate general
partner of Virgin Islands Rum Industries Ltd. ("VIRIL"). The Employee has
further informed the Company that VIRIL (the majority owner of which is
VIAP) owns and operates a rum distillery in the U.S. Virgin Islands and
sells its products to various companies throughout the world, including the
United States, and that from time to time, VIRIL has sold rum in bulk to
the Company's subsidiary, Xxxxxx Brands, Ltd. It is understood and agreed
that the Employee's ownership in VIAP and its corporate general partner and
his offices in such corporate general partner shall not be deemed a
violation of this Agreement.
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Chicago,
Illinois in accordance with the rules of the American Arbitration Association
then in effect; provided, however, that the Company shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any continuing violation of Section 8 hereof. The losing party in any
such arbitration shall pay all costs of the arbitration, including the legal
fees and expenses of
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all parties with respect thereto. Judgment may be entered on the arbitrator's
award in any court having jurisdiction.
10. Notice. Any notice or other communication hereunder to either party
shall be deemed validly delivered when delivered personally, on any date on
which personal delivery is refused, or 3 days after deposit in the United States
mail, registered or certified with proper postage prepaid, addressed as follows:
(a) If to the Company, addressed to:
Xxxxxx Incorporated
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chairman
(b) If to the Employee, addressed to:
Xxxxxxxxx X. Xxxx
00000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
or to such other addresses as either party may designate for itself or himself
by notice given to the other from time to time in accordance with the provisions
hereof, except that notices of change of address shall be effective only upon
receipt.
11. Successors and Assigns. The provisions hereof shall be binding upon
and shall inure to the benefit of the Employee, his heirs, executors and
administrators, and the Company, its successors and assigns.
12. Prior Agreements. This agreement supersedes all prior agreements
between the parties with respect to the subject matter hereof.
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l3. Governing Laws. This aqreement shall be governed by the laws of the
State of Illinois.
14. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing, and is signed by the Employee and by another executive officer of the
Company who has been duly authorized by the Directors. No waiver by any party
hereto at any time of any breach by any other party hereto, or compliance with,
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to this Agreement have been
made by any party which are not set forth expressly in this Agreement.
15. Validity and Severability. The invalidity or unenforceability of any
provision hereof shall not affect the enforceability of any other provision of
this Agreement, all of which other provisions shall remain in full force and
effect (such unenforceable or invalid provision being severable in such
instance), nor shall the invalidity or unenforceability of a portion of any
provision of this Agreement affect the validity or enforceability of the balance
of such provision.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the authorized officers or the Company and by the Employee on the date first
hereinabove written.
XXXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
/s/ X. Xxxx
----------------------------------
XXXXXXXXX X. XXXX
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this "Amendment") dated
November 11, 1996 is by and between XXXXXX INCORPORATED, a Delaware corporation
(the "Company"), and XXXXXXXXX X. XXXX (the "Employee").
WHEREAS, the Company and Employee are parties to that certain Employment
Agreement dated September 1, 1990 (the "Agreement"), and desire to amend the
Agreement on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged) the parties hereto agree as
follows:
1. Employment. The second sentence of Section 1 of the Agreement is hereby
deleted in its entirety and the following inserted therefor:
"The Term shall commence on September 1, 1990 and, unless sooner
terminated pursuant to Section 5 herein, or extended under the terms
of this Section 1 shall end on February 28, 2001."
2. Post-Termination Benefits. Section 6(a) of the Agreement is hereby
deleted in its entirety and the following inserted therefor:
"(a) If Employee's employment shall be terminated at any time (i) by
reason of his death, Complete Disability or Retirement or (ii) by the
Employee for Good Reason pursuant to Section 5(a)(iv) hereof, or if
the Company decides not to extend the Term hereof as provided in
Section 1 hereof, the Company shall pay to the Employee a
post-termination benefit equal to one hundred percent (100%) of his
then current Base Salary plus the amount paid to Employee under the
Xxxxxx Incorporated Management Incentive Plan for the Company's
immediately prior fiscal year."
3. Confidential Information. Employee agrees to keep the fact that this
Amendment has been entered into and the terms of this Amendment confidential,
except that disclosure of this Amendment to Employee's immediate relatives and
financial and legal advisors is permitted.
4. No Further Modifications. Except as specifically set forth herein, the
Agreement shall remain in full force and unaffected hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
COMPANY: EMPLOYEE:
XXXXXX INCORPORATED
/s/ Xxxxx X. Xxxxxxx /s/ X. Xxxx
-------------------------- ------------------------
Xxxxx X. Xxxxxxx Xxxxxxxxx X. Xxxx
Chief Executive Officer
