KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
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THIS AGREEMENT, made and entered into as of the 7th day of December,
1998, by and between NORTHLAND CRANBERRIES, INC., a Wisconsin corporation
("Company"), and XXXXX X. XXXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company as its President -
Branded Division, and the Executive's services in such capacities are critical
to the continued successful conduct of the business of the Company;
WHEREAS, 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;
WHEREAS, the Company and the Executive are desirous that any proposal
for a change in control or acquisition 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; and
WHEREAS, the Executive will be in a better position to consider the
Company's and its shareholders' best interests if the Executive is afforded
reasonable security, as provided in this Agreement, against altered conditions
of employment which could result from any such change in control or acquisition.
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:
1. Definitions.
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(a) Act. For purposes of this Agreement, the term "Act" means the
Securities Exchange Act of 1934, as amended.
(b) Affiliate and Associate. For purposes of this Agreement, the terms
"Affiliate" and "Associate" shall have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations of the Act.
(c) Beneficial Owner. For purposes of this Agreement, a Person shall be
deemed to be the "Beneficial Owner" of any securities:
(i) which such Person or any of such Person's Affiliate or
Associates has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own
securities tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase.
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose
of or "beneficial ownership" of (as determined pursuant to Rule 13d-3
of the General Rules and Regulations under the Act), including
pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, any security under this subparagraph (ii) as a
result of an agreement, arrangement or understanding to vote such
security if the agreement, arrangement or understanding: (A) arises
solely from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations under the
Act and (B) is not also then reportable on a Schedule 130 under the
Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in Subsection 1(c) (ii)
above) or disposing of any voting securities of the Company.
(d) Cause. "Cause" for termination by the Company of the Executive's
employment after a Change of Control of the Company shall, for purposes of this
Agreement, be limited to (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 judgment, 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).
(e) 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
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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.
(f) Continuing Director. For purposes of this Agreement, the term
"Continuing Director" means any member of the Board of Directors of the Company
who was a member of such 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.
(g) 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.
(h) 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 on or prior to the end of the Employment
Period.
(i) Employment Period. For purposes of this Agreement, the term
"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 third anniversary
of such date.
(j) 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 4, 5 or 6 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
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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 12 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 17(a) hereof as provided therein.
(k) 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 concert.
(l) Termination Date. For purposes of this Agreement, except as
otherwise provided in Section 10(b) and Section 17(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 12 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 12 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
1(d)(iii) 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 22 hereof, (2) the date of
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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 22 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 is finally determined that Good Reason did exist, the Executive
shall in no case be denied the benefits described in Sections 8(b) and 9 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 9(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.
2. Termination or Cancellation Prior to Change in Control. The Company
and the Executive shall each retain the right to terminate the employment of the
Executive at any time prior to a Change in Control of the Company. In the event
the Executive's employment is terminated prior to a Change in Control of the
Company, this Agreement shall be terminated and cancelled and of no further
force and effect and any and all rights and obligations of the parties hereunder
shall cease.
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3. 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 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.
4. Duties. During the 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.
5. Compensation. During the Employment Period, the Executive shall be
compensated as follows:
(a) 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 than the Executive's annual base 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) 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.
(c) 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 5(c) in which the Executive was
participating immediately prior to the Change in Control of the Company.
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(d) 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) 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 5(e) in which the Executive was participating immediately prior
to the Change in Control of the Company.
6. Annual Compensation Adjustments. During the Employment Period, the
Board of Directors of the Company (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.
7. Termination For Cause or Without Good Reason. If 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 13 hereof), then the Executive shall be
entitled to receive only Accrued Benefits pursuant to Section 9(a) hereof.
8. Termination 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 12 hereof, or
(iii) Cause, then the Executive shall be entitled to receive, and the Company
shall promptly pay, Accrued Benefits pursuant to Section 9(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 9(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.
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(ii) Until the earlier of 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.
9. Payments Upon Termination.
(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 ending with the Termination
Date; (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 for the time period ending with 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 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 Benefit shall be made promptly in accordance with
the Company's prevailing practice with respect to Subsections (i) and (ii) or,
with respect to Subsections (iii), (iv) and (v), 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 immediately prior to the Change in Control of the
Company. 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 payments 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 Covered Termination (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, receipt of which are contingent
on the change of control of the Company and 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
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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 a Covered Termination 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 to 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 provision 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 the 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 provided for in Section 7872(f)(2)
of the Code.
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10. Death. (a) Except as provided in Section 10(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) 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 10(a) hereof and, subject to
the provisions of this Agreement, to such Termination Payment as the Executive
would have been entitled to had the Executive lived. For purposes of this
Subsection 10(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 Employment Period, subject to delay pursuant to Section 1(1) hereof.
11. Retirement. If, during the 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 9(b) hereof.
12. Termination for Disability. If, during the Employment Period, as a
result of the Executive's disability due to physical or mental illness or injury
(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 13 hereof. In the event the
Executive's employment is terminated on account of the Executive's disability in
accordance with this Section, the Executive shall receive Accrued Benefits in
accordance with Section 9(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.
13. 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, and to the Company, if
such Notice is given by the Executive, all in accordance with the following
procedures and those set forth in Section 23 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.
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(b) Any Notice of Termination by the Company 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 23 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.
14. Confidentiality Obligations of the Executive; Noncompetition.
(a) During and following the Executive's employment by the Company, 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 of
Directors of the Company 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) The Executive agrees that, in the event of a Covered Termination in
which the Executive has or will receive a Termination Payment, for a period of
one year after the Termination Date or until the end of the Employment Period,
whichever is shorter, the Employee shall not, within the State of Wisconsin or
the Commonwealth of Massachusetts, except as permitted by the Company's prior
written consent (which shall not be reasonably 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.
15. 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
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("Expenses"), and prejudgment interest on any money judgment or arbitration
award obtained by the Executive calculated at the rate of interest announced by
Firstar Bank Milwaukee, 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.
16. Payment Obligations Absolute. The Company's obligation during and
after the 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
limitations, any setoff, counterclaim, recoupment, defense or other right which
the Company may have against him or anyone else. Except as provided in Section
15 of this Agreement, all amounts payable by the Company hereunder shall be paid
without notice or demand. Except as provided in Subsection 9(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.
17. Successors. (a) If the Company sells, assigns or transfers 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 17
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 or 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 7, 8, 9, 10, 11 and 12 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.
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18. Severability. The provisions of this Agreement shall be regarded as
divisible, and if any 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.
19. Amendment. This Agreement may not be amended or modified at any
time except by written instrument executed by the Company and the Executive.
20. 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 withheld shall not exceed the minimum amount
required to be withheld by law. The Company shall be entitled to rely on an
opinion of nationally recognized tax counsel if any question as to the amount or
requirement of any such withholding shall arise.
21. 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.
22. 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
his 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.
23. Notice. Notices given pursuant to this Agreement shall be in
writing and, except as otherwise provided by Section 13(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 United 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
theretofore given to the other party in writing.
24. 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
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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.
25. Headings. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
NORTHLAND CRANBERRIES, INC.
By /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Xxxx Xxxxxxxxxxx
Chairman of the Board
and Chief Executive Officer
EXECUTIVE
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
