AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of this 31st day of December,
1994, and amended as of the 31st day of December 1995 and amended as of the 31st
day of October 1997 by and between XXXXXXX FOODS, INC., a Minnesota corporation
(hereinafter referred to as "Xxxxxxx Foods") and XXXXXXX X. XXXXXXX (hereinafter
referred to as "Xxxxxxx").
WHEREAS, under the date of March 1, 1988, Xxxxxxx Foods and Xxxxxxx
entered into an Employment Agreement which expires by its terms on December 31,
1994; and
WHEREAS, Xxxxxxx has served as Executive Vice President of Xxxxxxx
Foods since May 1988; and
WHEREAS, Xxxxxxx Foods and Xxxxxxx have agreed to enter into this
Agreement effective as of January 1, 1995.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties agree that the Employment Agreement dated March 1, 1988
is hereby amended and superseded in its entirety by this Agreement effective as
of January 1, 1995 as follows:
1. EMPLOYMENT AND DUTIES. Xxxxxxx Foods shall employ Xxxxxxx to serve
as Executive Vice President and Secretary of Xxxxxxx Foods and in such capacity
Xxxxxxx shall perform such duties as the Bylaws provide and as the CEO of
Xxxxxxx Foods may from time to time determine. Xxxxxxx shall also serve, at the
request of Xxxxxxx Foods, as a Director of each of Xxxxxxx Foods' subsidiaries.
2. TERM. This Agreement shall be effective as of January 1, 1995 and
shall continue through December 31, 1999 and shall automatically renew and
extend for additional two year terms unless otherwise terminated in accordance
with the provisions of this agreement.
3. BASE SALARY. For all services rendered by Xxxxxxx, Xxxxxxx Foods
agrees to pay to Xxxxxxx an annual Base Salary for each of the calendar years of
this Agreement from January 1, 1998 through December 31, 1999 of at least
$260,000 payable in substantially equal semi-monthly installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. For each calendar year during the term of this Agreement,
Xxxxxxx shall be entitled to participate in the Executive
Incentive Compensation Plan of Xxxxxxx Foods. Any Incentive
Compensation or Options earned under said Plan shall be
determined and paid or granted in accordance with the Plan.
b. Xxxxxxx Foods shall provide Xxxxxxx with medical insurance and
shall permit Xxxxxxx to participate in other fringe benefit
plans as Xxxxxxx Foods may from time to time establish for its
executive officers. The terms of said benefits shall be no
less generous than those offered to other executive officers
of Xxxxxxx Foods.
x. Xxxxxxx is entitled to take vacations at reasonable times and
for customary and reasonable lengths of time consistent with
his overall responsibilities as Executive Vice President and
Secretary of Xxxxxxx Foods.
d. Michael Foods shall reimburse Xxxxxxx for all reasonable
expenses incurred by Xxxxxxx in connection with Xxxxxxx Foods'
business, including but not limited to, expenses of travel and
entertainment, upon presentation of itemized statements
therefor.
5. EVENTS OF TERMINATION. The employment of Xxxxxxx hereunder shall
terminate as follows:
a. Upon the Incapacity or death of Xxxxxxx;
b. Upon thirty (30) days' written notice by either party,
other than as provided in sub-paragraphs c. and d., below;
c. Without notice by Xxxxxxx Foods for Cause; or
d. By Xxxxxxx Foods without Cause if there is a Change in
Control of Xxxxxxx Foods and thereafter Xxxxxxx'x Duties are
Substantially Reduced or Negatively Altered without his prior written
consent.
"CAUSE" for purposes hereof shall mean a determination by Xxxxxxx Foods
that Xxxxxxx has (i) committed an illegal or dishonest act that directly
reflects upon his fitness to act as Executive Vice President and Secretary; (ii)
intentionally breached his fiduciary obligations to Xxxxxxx Foods; or (iii)
refused or is unable to perform his duties hereunder, other than as a result of
illness or disability, for a period of thirty (30) days.
"INCAPACITY" for purposes hereof shall mean a determination by Xxxxxxx
Foods in its sole discretion that Xxxxxxx is unable to perform his job
responsibilities as Executive Vice President and Secretary as a result of
chronic illness, physical, mental or any other disability for a period of six
(6) months or more.
If Xxxxxxx'x employment is terminated under subsection (a) or by
Xxxxxxx Foods under subsection (b), Xxxxxxx shall receive as a termination
payment all amounts due under this Agreement as Base Salary, but in any event in
an amount not less than one year's Base Salary, plus Xxxxxxx shall receive fifty
percent (50%) of that Base Salary amount in lieu of any Incentive Compensation
and Options for the remaining term of this Agreement, plus any Incentive
Compensation earned for any year prior to the year of termination which is
unpaid at the date of termination. Such termination payment shall be made in
substantially equal monthly installments beginning on the first day of the month
following termination of employment through the full term of this Agreement or
for twelve (12) months, whichever is later. If Xxxxxxx'x employment is
terminated by Xxxxxxx under subsection (b), Xxxxxxx shall receive no termination
payment; however, Xxxxxxx will be entitled to receive any Incentive
Compensation earned for any year prior to the year of termination which is
unpaid at the date of termination. Any Incentive Compensation earned for any
year prior to the year of termination which is unpaid at the date of termination
shall be due and payable in full within 15 days of the determination by the
Board of Directors of the amount of Incentive Compensation to which Xxxxxxx is
entitled to receive, but in no event shall the date of payment be more than 90
days following termination of employment. If Xxxxxxx Foods terminates Xxxxxxx
under subsection (c) above, no amount shall be paid beyond the last day of
service by Xxxxxxx and Xxxxxxx shall not be deemed to have earned any Incentive
Compensation or Options for the year of termination. In the case of Incapacity
or death, or termination by Xxxxxxx Foods without Cause in accordance with
sub-paragraphs a., b. and d. above, all options to purchase common stock
previously granted to Xxxxxxx shall become fully vested and not subject to
Xxxxxxx'x forfeiture.
If Xxxxxxx'x employment is terminated by Xxxxxxx Foods under subsection
(d), Xxxxxxx shall receive as a termination payment all amounts due under this
Agreement as Base Salary plus Xxxxxxx shall receive fifty percent (50%) of that
Base Salary amount in lieu of any Incentive Compensation and Options for the
remaining term of this Agreement, but in any event in an amount not less than
two year's Base Salary, plus any Incentive Compensation earned for any year
prior to the year of termination which is unpaid at the date of termination.
Such termination payment shall be made in a lump sum within 15 days following
termination of employment.
Not withstanding the ambiguity of any provisions herein contained, this
employment agreement shall provide for a maximum termination payment of not more
than two year's Base Salary, plus any Incentive Compensation earned for any year
prior to the year of termination which is unpaid at the date of termination.
"CHANGE IN CONTROL" means a Change in Control of Xxxxxxx Foods of a
nature that would be required to be reported in response to Item 1(a) of Xxxxxxx
Food's Current Report on Form 8-K, as in effect on the effective date of this
agreement, pursuant to Section 13 of the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"); provided that, without limitation, such a Change in Control
shall be deemed to have occurred at such time as any "person" within the meaning
of Section 14(d) of the Exchange Act, other than Xxxxxxx Foods, a subsidiary of
Xxxxxxx Foods or any employee benefit plan sponsored by Xxxxxxx Foods or a
subsidiary of Xxxxxxx Foods, acquires (1) the power to elect, appoint or cause
the election or appointment of at least a majority of the members of the Board
of Directors of Xxxxxxx Foods through the acquisition of beneficial ownership of
capital stock of Xxxxxxx Foods or otherwise, or (2) all, or substantially all,
of the properties and assets of Xxxxxxx Foods; provided, however, that a Change
in Control shall not be deemed to have occurred if (x) the acquisition of such
power or properties and assets is pursuant to a merger, consolidation, or sale
of properties and assets and (y) by reason of such transaction no person, or
related persons constituting a "group" for purposes of Section 13(d) of the
Exchange Act shall acquire the power to elect, appoint or cause the election or
appointment of a majority of the members of the Board of Directors of such
successor or transferee.
"DUTIES ARE SUBSTANTIALLY REDUCED OR NEGATIVELY ALTERED" means, after
any Change in Control and without Xxxxxxx'x express written consent:
(i) the assignment to Xxxxxxx of any duties inconsistent with Xxxxxxx'x
positions, duties, responsibilities and status with Xxxxxxx Foods immediately
prior to a Change in Control, or a change in Xxxxxxx'x reporting
responsibilities, titles or offices as in effect immediately prior to a Change
in Control, or any removal of Xxxxxxx from, or any failure to re-elect Xxxxxxx
to, any of such positions, except in connection with the termination of
Xxxxxxx'x employment for Cause, upon the Incapacity or death of Xxxxxxx, or upon
the voluntary termination by Xxxxxxx;
(ii) a reduction in Xxxxxxx'x base salary in effect immediately prior
to any Change in Control; or the failure by Xxxxxxx Foods to increase such base
salary each year after a Change in Control by an amount which at least equals,
on a percentage basis, the mean average percentage increase in base salary for
all employees similarly situated during the two (2) full calendar years
immediately preceding a Change in Control;
(iii) Xxxxxxx Foods requiring Xxxxxxx to be based anywhere other than
the geographic location at which Xxxxxxx was based immediately preceding the
Change in Control except for required travel on business to an extent
substantially consistent with the business travel obligations Xxxxxxx
experienced immediately preceding a Change in Control;
(iv) the failure by Xxxxxxx Foods to continue in effect benefit and
compensation plans substantially equivalent to the benefit or compensation plans
or arrangements in which Xxxxxxx was participating immediately preceding any
Change in Control; the taking of any action by Xxxxxxx Foods not required by law
which would adversely affect Xxxxxxx'x participation in or materially reduce
Xxxxxxx'x benefits under any of such plans or deprive Xxxxxxx of any material
fringe benefit enjoyed by Xxxxxxx at the time of the Change in Control, but this
provision shall not apply to any stock option plan maintained by Xxxxxxx Foods
prior to the Change in Control; or the failure by Xxxxxxx Foods to provide
Xxxxxxx with the number of paid vacation days, holidays and personal days to
which Xxxxxxx was then entitled in accordance with Xxxxxxx Foods' normal leave
policy in effect immediately preceding a Change in Control.
6. ADDITIONAL DOCUMENTS. The parties shall each, without further
consideration, execute such additional documents as may be reasonably required
in order to carry out the purposes and intent of this Agreement and to fulfill
the obligations of the respective parties hereunder.
7. WAIVER. Any waiver of any term or condition of this Agreement shall
not operate as a waiver of any other breach of such term or condition, or of any
other term or condition, nor shall any failure to enforce a provision hereof
operate as a waiver of such provisions or of any other provision hereof.
8. NOTICES. All communications with respect to this Agreement shall be
considered given if delivered or sent as follows:
a. To Xxxxxxx by first class, certified mail, postage prepaid,
return receipt requested, addressed as follows:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
b. To Xxxxxxx Foods by first class, certified mail, postage
prepaid, return receipt requested, addressed as follows:
Xxxxxxx Foods, Inc.
0000 Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
or mailed to such other addresses as the parties hereto may designate
by notice given in like manner. Notice shall be effective three (3)
days after mailing or upon personal delivery.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of
the parties hereto with respect to the subject matter hereof and no party shall
be liable or bound to another in any manner by any warranties, representations
or guarantees, except as specifically set forth herein.
10. MODIFICATIONS, AMENDMENTS AND WAIVERS. The parties hereto at any
time may by written agreement extend or modify this Agreement. This Agreement
shall not be altered or otherwise amended except pursuant to an instrument in
writing executed by the parties hereto.
11. SEVERABILITY. No finding or adjudication that any provision of this
Agreement is invalid or unenforceable shall affect the validity or
enforceability of the remaining provisions herein, and this Agreement shall be
construed as though such invalid or unenforceable provisions were omitted.
12. MISCELLANEOUS.
a. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective legal
representatives, successors and assigns of the party thereto.
b. This Agreement is made pursuant to and shall be construed
under the laws of the State of Minnesota.
c. This Agreement may be executed in one or more counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the date
and year above written.
XXXXXXX FOODS, INC.
By /s/ Xxxx Xxxxx
Its Vice President - Finance
/s/ Xxxxxxx X. Xxxxxxx
XXXXXXX X. XXXXXXX
