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EXHIBIT 10.37
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of the 26th day of February, 1997
(the "Agreement"), by and between XXXXXXX FOODS, INC., a Delaware corporation
(hereinafter referred to as "Xxxxxxx Foods") and XXXXXX X. XXXXXXX (hereinafter
referred to as "Executive").
WHEREAS, Executive is an employee of Papetti's Hygrade Egg Products, Inc.
which will be merged as of the date hereof with and into Xxxxxxx Foods (the
"Reorganization"); and
WHEREAS, Xxxxxxx Foods desires to assure itself of the availability of the
services of the Executive following the Reorganization, and it is a condition to
the Reorganization that Executive and Xxxxxxx Foods enter into this Agreement
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties agree as follows:
1. EMPLOYMENT AND DUTIES. Xxxxxxx Foods shall employ Executive to serve
as Executive Vice President of the Papetti's Hygrade Foods Division and in such
capacity Executive shall perform such duties as were being performed prior to
and as of the date of this Agreement subject at all times to the direction of
the President of Papettis' Hygrade Foods Division.
2. TERM. This Agreement shall be effective as of February 26, 1997 and
shall continue through February 25, 2000, unless earlier terminated as provided
herein. This Agreement may be extended thereafter upon the written agreement of
the parties hereto.
3. BASE SALARY. For all services rendered by Executive, Xxxxxxx Foods
agrees to pay Executive an annual Base Salary for each year of this Agreement
from February 26, 1997 through February 25, 2000 of at least $180,000 payable in
substantially equal semi-monthly installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. Xxxxxxx Foods shall provide Executive with medical insurance and
shall permit Executive to participate in other fringe benefit plans as
Xxxxxxx Foods may from time to time provide for its other executive
officers. The terms of said benefits in all cases shall be no less
favorable to Executive than those offered to other executive officers to
Xxxxxxx Foods.
b. Executive is entitled to take up to 4 weeks of vacation per annum
at reasonable times and for customary and reasonable lengths of time
consistent with his overall responsibilities hereunder.
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c. Michael Foods shall reimburse Executive for all reasonable
expenses incurred by Executive in connection with Xxxxxxx Foods' business,
including but not limited to, expenses of travel and entertainment, upon
presentation of itemized statements therefor.
5. NON-COMPETE. During Executive's term of employment and for a period
of three years following termination of employment, Executive shall not directly
or indirectly, whether as an employee, agent, contractor, partner, shareholder
or otherwise, engage in the business of egg production, processing or
distribution in any geographic area where Xxxxxxx Foods produces or processes
eggs or distributes egg products, except as specified in Schedule I to this
Agreement, nor shall Executive solicit the business of any customer of Xxxxxxx
Foods on behalf of any company or business entity (other than Xxxxxxx Foods or
its affiliates) which is engaged in the egg production, processing or
distribution business, whether or not such company or business directly competes
with Xxxxxxx Foods.
6. EVENTS OF TERMINATION. The employment of Executive hereunder shall
terminate as follows:
a. Upon the Incapacity or death of Executive;
b. Upon thirty (30) days' written notice by either party or by
Executive if Executive's Duties Have Been Substantially Reduced or
Negatively Altered without Executive's prior written consent; or
c. Without notice by Xxxxxxx Foods for Cause.
"Cause" for purposes hereof shall mean a determination by Xxxxxxx Foods
that Executive has committed an illegal act that directly reflects upon his
fitness to act as an Executive of Xxxxxxx Foods.
"Incapacity" for purposes hereof shall mean a determination by Xxxxxxx
Foods in its sole discretion that Executive is unable to perform his job
responsibilities hereunder as a result of chronic illness, physical, mental or
any other disability for a period of six (6) months or more.
If Executive's employment is terminated under subsection (a) or by Xxxxxxx
under subsection (b) or by Executive under subsection (b) based upon the fact
the Executive's Duties Have Been Substantially Reduced or Negatively Altered
without Executive's prior written consent, Executive shall receive as a
termination payment, an amount equal to the Base Salary for the remaining term
of this Agreement. The termination payments provided above shall be made in
substantially equal monthly installments beginning on the first day of the month
following termination of employment for the balance of the term of this
Agreement. If Executive's employment is terminated by Executive under
subsection (b) for any reason other than that Executive's Duties Have Been
Substantially Reduced or Negatively Altered without
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Executive's prior written consent or by Xxxxxxx under subsection (c), Executive
shall receive no termination payment.
"Duties are Substantially Reduced or Negatively Altered" means, without
Executive's express written consent:
(i) the assignment to Executive of any duties inconsistent with
Executive's positions, duties, responsibilities and status with Xxxxxxx
Foods or a change in Executive's reporting responsibilities, titles or
offices, or any removal of Executive from, or any failure to re-elect
Executive to, any of such positions, except in connection with the
termination of Executive's employment for Cause, upon the Incapacity or
death of Executive, or upon the voluntary termination by Executive;
(ii) a reduction in Executive's Base Salary below the minimum Base
Salary in Section 3 hereof;
(iii) Xxxxxxx Foods requiring Executive to be based anywhere other
than the geographic location at which Executive was based at the effective
date of this Agreement except for required travel on business to an extent
substantially consistent with the business travel obligations of Executive;
(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 effect at the effective date of this Agreement;
the taking of any action by Xxxxxxx Foods not required by law which would
adversely affect Executive's participation in or materially reduce
Executive's benefits under any of such plans or deprive Executive of any
material fringe benefit enjoyed by Executive; or the failure by Xxxxxxx
Foods to provide Executive with the number of paid vacation days, holidays
and personal days to which Executive was then entitled in accordance with
Xxxxxxx Foods' normal leave policy in effect at the effective date of this
Agreement.
7. 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 intents of this agreement and to fulfill
the obligations of the respective parties hereunder.
8. 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.
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9. NOTICES. All communications with respect to this agreement shall be
considered given if delivered or sent as follows:
8. To Executive by first class, certified mail, postage prepaid, return
receipt requested, addressed as follows:
Xxxxxx X. Xxxxxxx
c/o Papetti Hygrade Foods Division
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx
Copy to:
Xxxxxx X. X'Xxxxxx, XX
X'Xxxxxx, Xxxxx & X'Xxxxxx
Liberty Hall Center
0000 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 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, Xxxxxxxxx 00000
or mailed to such other addresses as the parties hereto may designate by notice
give in like manner. Notice shall be effective three (3) days after mailing or
upon personal deliver.
10. 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.
11. 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.
12. SEVERABILITY. No finding or adjudication that any provision of this
Agreement is invalid or enforceable 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.
13. MISCELLANEOUS.
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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 day and
year first above written.
XXXXXXX FOODS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Its: President
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/s/ Xxxxxx X. Xxxxxxx
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Executive
Xxxxxx X. Xxxxxxx
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SCHEDULE I
(XXXXXX X. XXXXXXX)
1. Together, Xxxxxx Xxxxxxx (25%), Xxxxxx X. Xxxxxxx (25%), Xxxx Xxxxx
Xxxx (25%) and Xxxxxxx Xxxxxxx (25%) own Shell Egg Technology, L.L.C.,
which entity owns 0.5% of Pasteurized Egg, L.P.
2. Together, Xxxxxxx X. Xxxxxxxxxxx (25%), Xxxxx Xxxxxxxxxxx (8.33%),
Xxxxxx X. Xxxxxxx (22.23%), Xxxxxx Xxxxxxx (22.22%) and Xxxxxxx Xxxxxxx
(22.22%) own Papetti Farms, Inc., which entity owns 50% of
Sunbest-Papetti Farms.
