Exhibit 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July 1, 1998, by and between AURORA FOODS
INC. (the "Company"), a Delaware corporation, and Xxx Xxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Employment. Upon the terms and subject to the conditions of this
Agreement, the Company hereby employs the Executive and the Executive hereby
accepts employment with the Company in the capacities hereinafter set forth.
2. Term of Employment. Except as provided in Section 6, the term of
employment of the Executive (the "Term") pursuant to this Agreement shall
commence on the date hereof (the "Effective Date") and shall terminate on the
date (the "Termination Date") that is the earlier of (x) the second anniversary
of the Effective Date or (y) the date the Executive's employment hereunder is
terminated pursuant to Section 6 hereof; provided, that in the event that (i)
Xxx X. Xxxxxx is terminated without "cause" pursuant to the employment agreement
of even date herewith between Xxx X. Xxxxxx and the Company, the Term hereunder
shall automatically terminate as of the effective date of such termination of
Xxx X. Xxxxxx and the Executive shall be deemed to have been terminated without
cause pursuant to Section 6(d) of this Agreement, and (ii) Xxx X. Xxxxxx resigns
as Chief Executive Officer of the Company without the consent of the board of
directors of the Company, the Executive shall automatically be deemed to have
resigned as Executive Vice President of the Company and the term hereunder shall
terminate as of the effective date of such resignation by Xxx X. Xxxxxx.
3. Duties; Extent of Services.
(a) Duties. During the Term, the Executive shall serve as Executive
Vice President of the Company, and shall, in accordance with and, subject to the
provisions of the Bylaws (as amended from time to time) of the Company and the
right of
Executive to provide management and other services to certain other business
ventures as provided in Section 8 hereof, devote all or substantially all of his
business time and attention to the affairs of the Company and perform the
duties, undertake the responsibilities and exercise the authority customarily
performed, undertaken and exercised by a person in such position in the business
in which the Company is engaged. The Executive shall report to and carry out
the lawful directions of the board of directors of the Company (the "Board").
The Executive shall be based in an office located in the San Francisco,
California metropolitan area.
(b) Extent of Services. Except for illness and permitted vacation
periods, during the Term the Executive shall (i) devote his best efforts and
ability to the business and affairs of the Company and its subsidiaries; and
(ii) discharge such executive and administrative and other duties not
inconsistent with his position as may be assigned to him by the Board. For so
long as the Executive remains employed as Executive Vice President of the
Company, he shall serve, if requested, without additional compensation, on the
Board, on the board of directors of any subsidiary of the Company and as
Executive Vice President of any subsidiary of the Company.
4. Compensation.
(a) Base Salary. Subject to the terms and conditions herein, in
consideration of the services rendered by the Executive hereunder and provided
that the Executive has performed in all material respects all of his obligations
provided for herein, the Company will pay to the Executive a base salary (the
"Base Salary") at a minimum of Three Hundred Fifty Thousand Dollars ($350,000)
per year during the Term. The Base Salary shall be paid in accordance with the
Company's normal payroll practice.
(b) Bonus. The Company shall pay the Executive a bonus (the "Bonus")
in an amount expressed as a percentage of the Base Salary with respect to each
fiscal year or portion thereof during the Term in accordance with the following
provisions:
(i) For (A) the fiscal years ended December 31, 1998 and
December 31, 1999, during the Term the Bonus shall be payable with
respect to the EBITDA Target (as defined below) for such fiscal years
then ended and (B) the period commencing January 1, 2000 and ending
June 30, 2000 during the Term, the Bonus shall be payable with respect
to the EBITDA Target for the six months then ended (in each case, the
"Applicable Period").
(ii) If the Financial Results (as defined below) of the Company
for the Applicable Period during the Term are at least 90%
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but less than 95% of the EBITDA Target (as defined below) for the
Applicable Period, the Executive shall be paid an amount equal to 30%
of so much of his Base Salary as was paid with respect to the
Applicable Period.
(iii) If the Financial Results of the Company for the
Applicable Period during the Term are at least 95% but less than 100%
of the EBITDA Target for the Applicable Period, the Executive shall be
paid an amount equal to 45% of so much of his Base Salary as was paid
with respect to the Applicable Period.
(iv) If the Financial Results of the Company for the Applicable
Period during the Term are at least 100% but less than 105% of the
EBITDA Target for the Applicable Period, the Executive shall be paid
an amount equal to 60% of so much of his Base Salary as was paid with
respect to the Applicable Period.
(v) If the Financial Results of the Company for the Applicable
Period during the Term are at least 105% but less than 110% of the
EBITDA Target for the Applicable Period, the Executive shall be paid
an amount equal to 65% of so much of his Base Salary as was paid with
respect to the Applicable Period.
(vi) If the Financial Results of the Company for the Applicable
Period during the Term are at least 110% but less than 115% of the
EBITDA Target for the Applicable Period, the Executive shall be paid
an amount equal to 70% of so much of his Base Salary as was paid with
respect to the Applicable Period.
(vii) If the Financial Results of the Company for the
Applicable Period during the Term are at least 115% but less than 120%
of the EBITDA Target for the Applicable Period, the Executive shall be
paid an amount equal to 75% of so much of his Base Salary as was paid
with respect to the Applicable Period.
(viii) If the Financial Results of the Company for the
Applicable Period during the Term equal or exceed 120% of the EBITDA
Target for the Applicable Period, the Executive shall be paid an
amount equal to 80% of so much of his Base Salary as was paid with
respect to the Applicable Period.
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(c) For the purpose of this Agreement (i) the term "EBITDA Target"
shall mean the Company's projected earnings before interest, taxes, one-time
transition expenses, non-cash compensation expense charges, depreciation and
amortization, as contained in the Company's budget for the Applicable Period and
which is approved by the Board (without reference to any adjustments or
revision, upwards or downwards, to such projected earnings which are
subsequently approved by the Board as part of any subsequent revision to such
budget), and (ii) the term "Financial Results" shall mean the Company's EBITDA
calculated by reference to the Company's financial statements for the Applicable
Period as filed with the Securities and Exchange Commission (the "SEC").
(d) The Bonus due under Section 4(b) shall be paid to the Executive
within thirty (30) days of the filing of the Company's annual audited financial
statements for the relevant year with the SEC.
5. Other Executive Benefits. (a) During the Term, the Executive shall be
entitled to (i) vacation time in accordance with the Company's approved policy
from time to time then in effect; (ii) participate in all employee insurance and
other fringe benefit programs, including, without limitation, life, health,
dental and accident insurance plans and long term disability now or hereafter
maintained by the Company for senior executive or other salaried personnel for
which the Executive is eligible; (iii) participate in a pension plan with terms
similar to those applicable to executives of the Company; and (iv) participate
in the Company's equity compensation plan to the extent determined by the Board
from time to time.
(b) The Company shall promptly reimburse the Executive for all
reasonable documented business expenses incurred in furtherance of the business
and affairs of the Company in accordance with approved company policies.
6. Termination Provisions.
(a) Termination for Cause. The Board may terminate the Executive's
employment hereunder for Cause, as hereinafter defined, immediately upon written
notice to the Executive. For purposes of this Agreement, "Cause" shall mean
(A) proven dishonesty of the Executive detrimental to the best interests of the
Company or any of its subsidiaries or conviction of the Executive of a crime
which constitutes a felony, (B) any material act or omission by the Executive
during the Term involving willful malfeasance or gross negligence in the
performance of his duties hereunder, (C) repeated failure of the Executive to
follow the reasonable instructions of the Board (other than inattention or
neglect resulting from illness or disability of the Executive) which inattention
and neglect does not cease within fifteen days after written notice thereof
specifying the details of such conduct is given by the Board to the Executive or
(D) material breach by the
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Executive of any material provision of this Agreement (provided, however, that
if such breach is curable and is remedied to the reasonable satisfaction of the
Board within fifteen days after written notice thereof specifying the details of
such breach is given by the Board to the Executive, such breach shall not fall
within the definition of "Cause" for purposes of this Subsection (D)). During
the Term, the Executive shall be entitled to only one such notice and right to
cure for any single act or event. If the Executive's employment is terminated
for Cause, the Executive shall be entitled to receive only the unpaid portion of
the Base Salary then in effect which has accrued to the date of termination.
(b) Termination By Reason of Permanent Disability. If at any time
during the Term an independent licensed physician selected by the Board
determines that the Executive has been or will be unable, as a result of
physical or mental illness or incapacity, to perform his duties hereunder for a
period of four consecutive months or for an aggregate of more than six months in
any twelve month period (a "Permanent Disability"), the Executive's employment
hereunder may be terminated by the Board upon thirty days' written notice to the
Executive. If the Executive's employment is terminated by reason of Permanent
Disability, the Executive shall be entitled to receive only the sum of (x) the
unpaid portion of the Base Salary then in effect which has accrued to the date
of termination plus (y) an amount equal to six months of the Executive's Base
Salary plus (z) an amount equal to a pro rata portion of the Bonus payable
pursuant to Section 4(b) hereof assuming that the Financial Results of the
Company for the then current Applicable Period equal exactly 100% of the EBITDA
Target for such Applicable Period, with such pro rata portion based on the
actual number of days during such Applicable Period that Executive was employed
by the Company. Such amounts due shall be paid within thirty (30) days after
any termination due to a Permanent Disability and shall be in lieu of any other
payment to which the Executive may be otherwise entitled.
(c) Termination By Reason of Death. The Executive's employment
hereunder shall automatically terminate on the date of his death. If the
Executive's employment is so terminated by his death, the Company shall pay to
the Executive's estate in addition to the unpaid portion of the Base Salary then
in effect through date of Executive's death the sum of (y) an amount equal to
six months of the Executive's Base Salary plus (z) an amount equal to a pro rata
portion of the Bonus payable pursuant to Section 4(b) hereof assuming that the
Financial Results of the Company for the then current Applicable Period equal
exactly 100% of the EBITDA target for such Applicable Period, with such pro rata
portion based on the actual number of days during such Applicable Period that
Executive was employed by the Company. Any amounts due shall be paid within
thirty (30) days after the date of his death if a personal representative has
been appointed by the end of such thirty (30) day period or, if a personal
representative has not been appointed by the end of such thirty (30) day period,
promptly after a personal representative has been appointed. All such
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amounts payable pursuant to this Section 6(c) shall be in lieu of any other
payment to which the Executive may otherwise be entitled.
(d) Termination Without Cause. The Board may terminate the
Executive's employment hereunder at any time for any reason without Cause in
which case the Executive shall be entitled to receive an amount (the "Severance
Amount") equal to the sum of (x) the Base Salary then in effect for the balance
of the Non-Compete Period (as defined below in Section 7(a)) plus (y) an amount
equal to the Bonus payable pursuant to Section 4(b) hereof based upon the actual
Financial Results of the Company for the remainder of the Non-Compete Period.
For purposes of determining the Bonus payable during the remainder of the
Non-Compete Period, it shall first be measured in respect of the Applicable
Period first ended during the remainder of the Non-Compete Period and thereafter
in respect of each succeeding Applicable Period that commences during the
Non-Compete Period. The Severance Amount shall be in lieu of any other
severance payment to which Executive may be otherwise entitled under any other
severance plan maintained by the Company. The Base Salary portion of the
Severance Amount shall be paid in accordance with the Company's normal payroll
practice over the balance of the Non-Compete Period. For each Applicable Period
within the Non-Compete Period, the Bonus portion of the Severance Amount shall
be paid within thirty days of the filing with the SEC of the Company's financial
statements covering such Applicable Period.
(e) Change of Control. This Agreement may be assigned in connection
with a Change of Control (as defined below) as provided in Section 10(a) hereof.
In the event of a Change of Control:
(i) the Executive shall have no obligation to move to a new work
location that is more than 50 miles from the Executive's principal
work location immediately prior to such Change of Control;
(ii) the amount of Base Salary set forth in Section 4(a) hereof
and the Bonus opportunities set forth in Section 4(b) hereof shall not
be subject to reduction;
(iii) the Executive's title, duties and responsibilities as
set forth in Section 3(a) hereof shall not be subject to reduction;
and
(iv) the Executive's reasonable, documented business expenses
shall continue to be reimbursed in a manner consistent with the
Company's reimbursement practice prior to such Change of Control.
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Following a Change of Control, the failure by the Company (or its successor or
assign) to comply with any of subparagraphs (i)-(iv) shall permit the Executive
to terminate this Agreement for "Good Reason", on written notice to the Company
(or its successor or assign). In the event the Executive terminates this
Agreement for Good Reason, the Executive shall be entitled to receive the
Severance Amount. The Severance Amount shall be in lieu of any other severance
payment to which the Executive may otherwise be entitled under any other
severance plan maintained by the Company (or its successor or assign). The
Severance Amount shall be paid in accordance with Section 6(d) hereof.
For purposes of this Agreement, a "Change of Control" shall mean (i) the
sale, exchange or other disposition of the issued and outstanding shares of
Common Stock of the Company or the merger, consolidation or other business
combination of the Company and/or its subsidiaries in a single transaction or a
series of related transactions after which the shareholders of the Company on
the date immediately prior to the single transaction or first transaction of the
series own less than 50% of the outstanding shares of voting common stock of the
Company or any surviving corporation in any such single transaction or series of
related transactions, or (ii) the sale or transfer of all or substantially all
of the assets of the Company and its subsidiaries taken as a whole, to a person
or entity other than the Company or its wholly-owned subsidiaries; provided,
that any merger, consolidation, dissolution, sale of substantially all the
assets or other similar transaction consummated in connection with the initial
public offering of the Company's common stock shall not constitute a "Change of
Control" hereunder.
7. Covenants of the Executive.
(a) Non-Competition. During the Non-Compete Period (as defined
below), the Executive shall not, directly or indirectly, be associated with any
entity, whether as a director, officer, employee, agent, consultant, partner,
owner, shareholder, member, independent contractor or otherwise, that is then
engaged in a Restricted Business (as defined below), including any "Platform",
as defined in Section 8 hereof, other than the Company and its subsidiaries. A
"Restricted Business" means any business or venture engaged in the manufacture,
marketing, distribution or sale of food products (but excluding beverages) for
human consumption. The "Non-Compete Period" shall commence as of the Effective
Date and remain in effect through the Term and thereafter until the earlier of
(x) the second anniversary of the Effective Date or (y) the first anniversary of
the date of hire of a Chief Executive Officer of the Company other than Xxx X.
Xxxxxx.
(b) Non-Solicitation of Employees of the Employer. Until the end of
the Non-Compete Period, the Executive shall not, and shall cause each business
or entity with which he is or shall become associated in any capacity not to,
solicit for employment or
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employ any person who is then employed in a professional or managerial position
by the Company, its subsidiaries or affiliates.
(c) Confidentiality. The Executive agrees and acknowledges that the
Confidential Information (as defined below) of the Company and its subsidiaries
is valuable, special and unique to their business; that such business depends on
such Confidential Information; and that the Company wishes to protect such
Confidential Information by keeping it confidential for the use and benefit of
the Company and its subsidiaries. Based on the foregoing, the Executive agrees
to undertake the following obligations with respect to such Confidential
Information:
(i) the Executive agrees to keep any and all Confidential
Information in trust for the exclusive use and benefit of the Company
and its subsidiaries;
(ii) the Executive agrees that, except as required by applicable
law or as authorized in writing by the Board, he will not at any time
during or after the termination of his employment hereunder, disclose,
directly or indirectly, any Confidential Information of the Company or
any of its subsidiaries;
(iii) the Executive agrees to take all reasonable steps
necessary, or reasonably requested by the Company, to ensure that all
Confidential Information is kept confidential for the exclusive use
and benefit of the Company and its subsidiaries; and
(iv) the Executive agrees that, upon termination of his
employment hereunder or at any other time that the Company may in
writing so request, he will promptly deliver to the Company all
materials constituting Confidential Information (including all copies
thereof) that are in his possession or under his control. The
Executive further agrees, that if requested by the Company, to return
any Confidential Information pursuant to this subparagraph (iv), he
will not make or retain any copy or extract from such materials.
For purposes of this Section 7(c), "Confidential Information" means any and
all information developed by or for the Company or any of its subsidiaries of
which the Executive gains or has acquired knowledge during or prior to the Term
by reason of his affiliation with the Company, its subsidiaries or any
predecessor that is (A) not generally known in any industry in which the Company
or any of its subsidiaries is or may become engaged or (B) not publicly
available. Confidential Information includes, but is not limited
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to, any and all information developed by or for the Company or any of its
subsidiaries concerning plans, marketing and sales methods, customer lists,
materials, processes, business forms, procedures, devices, plans for development
of products, services or expansion into new areas or markets, internal
operations, and any trade secrets and proprietary information of any type owned
by the Company or any of its subsidiaries, together with all written, graphic
and other materials relating to all or any part of the same.
8. Unrelated Business Ventures. In addition to and not in limitation of
his obligations under Section 7 hereof:
(a) The Company acknowledges that the Executive is a member of
Dartford Partnership L.L.C. ("Dartford") and that Dartford and its members
provide management and other services to business ventures or groups of
affiliated business ventures (each, a "Platform"). On the date hereof, Dartford
and its members provide such services to (i) the Company and its subsidiaries
and (ii) the Xxxxx Xxxx Pet Food Company group. The Company acknowledges and
agrees that the performance by the Executive or Dartford of such services for or
on behalf of a Platform other than the Company and its subsidiaries shall not
constitute a breach of this Agreement so long as the Executive complies with the
provisions of Section 7 and the remaining provisions of this Section 8.
(b) The Company and the Executive agree that the Executive will limit
his business ventures to two Platforms for the period (the "Restricted Period")
commencing on the date hereof and ending on the later of (x) the first
anniversary of the date hereof and (y) the date the Company initiates a search
to hire a person (other than Xxx X. Xxxxxx) who is expected to join the Company
either as its Chief Executive Officer or in another capacity with the
expectation that such person will become Chief Executive Officer. In the event
that during the Restricted Period any management services agreement between
Dartford and a member company of one of its then existing Platforms terminates,
the Executive shall have the right to engage in business activities with a new
Platform; provided, that the aggregate number of Platforms for which the
Executive provides services at any one time during the Restricted Period shall
not exceed two; and, provided, further, that any such new platform shall not be
in a business engaged in the manufacture, marketing, distribution or sale of
food products (but excluding beverages) for human consumption.
(c) The restrictions set forth in this Section 8 shall terminate and
be of no further force and effect on the expiration of the Restricted Period or,
if earlier, on the Termination Date so long as such Termination Date does not
arise from the termination of the Executive's employment hereunder by reason of
his resignation (or deemed resignation) without the consent of the Board or from
Termination for Cause; provided, that the Executive's liability for breaches
under this Section 8 shall survive any termination of this Agreement or
Executive's employment hereunder insofar as such liability relates to actions
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taken by the Executive prior to such termination; and, provided, further, that
nothing in this Section 8 modifies or reduces the obligations of the Executive
under Section 7 hereof.
9. Certain Adjustments. In the event the Company hires a Chief Executive
Officer to replace Xxx X. Xxxxxx in such capacity, the Company and the Executive
agree to review and renegotiate the terms of this Agreement (including without
limitation the Base Salary and Bonus provisions hereof) to reflect the impact of
such hiring, with any adjusted terms of this Agreement to be mutually acceptable
to the Board, on the one hand, and the Executive, on the other hand.
10. Successors; Assignment.
(a) The Company. The Company may assign any of its rights and
obligations hereunder, without the written consent of the Executive, in
connection with a Change of Control. This Agreement shall be binding upon and
shall inure to the benefit of the Company and its successors and assigns.
(b) The Executive. Neither this Agreement nor any right or interest
hereunder may be assigned by the Executive, his beneficiaries, or legal
representatives without the prior written consent of the Board; provided,
however, that nothing in this Section 10 shall preclude (i) the Executive from
designating a beneficiary to receive any benefit payable hereunder upon his
death, or (ii) the executors, administrators, or other legal representatives of
the Executive or his estate from assigning any rights hereunder to distributees,
legatees, beneficiaries, testamentary trustees or other legal heirs of the
Executive.
11. Indemnification. The Company shall indemnify, in the manner and to
the fullest extent permitted by applicable law and the by-laws of the Company,
the Executive (or the estate of the Executive) in the event the Executive (or
the Executive's estate) was or is a party to, or is threatened to be made a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Company, and whether civil, criminal,
administrative, investigative or otherwise, by reason of the fact that the
Executive is or was a director, officer, employee, or agent of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) ("Expenses"),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding (including
without limitation in connection with the defense or settlement of such action,
suit or proceeding). To the extent and in the manner provided by applicable law,
any such Expenses shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding, even if the Executive is alleged
to have not met the applicable standard of
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conduct required under this Section or is alleged to have committed conduct so
that, if true, the Executive (or the Executive's estate) would not be entitled
to indemnification under this Section, upon receipt of an undertaking, which
need not be secured, by or on behalf of such person to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
Company as authorized in this Section. Unless otherwise permitted by applicable
law, the indemnification provided for herein shall be made only as authorized in
the specific case upon a determination, made in the manner provided by
applicable law, that indemnification of the Executive (or the Executive's
estate) is proper in the circumstances. The Company's obligations under this
Section 11 shall survive any termination of this Agreement or any termination of
Executive's employment by the Company.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered by hand, mailed by
first-class registered or certified mail, postage prepaid and return receipt
requested, or delivered by overnight courier addressed as follows:
(i) If to the Company:
Aurora Foods Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(ii) If to the Executive:
00 Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
or, in each case, at such other address as may from time to time be specified to
the other party in a notice similarly given.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
conflicts of law principles thereof.
14. Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes all prior
agreements, representations, warranties and understandings, written or oral,
with respect thereto.
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15. Severability. If any term or provision of this Agreement or the
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons, property or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall remain valid and enforceable to
the fullest extent permitted by law.
16. Remedies.
(a) Injunctive Relief. The Executive acknowledges and agrees that
the covenants and obligations of the Executive contained in Section 7 and
Section 8 hereof relate to special, unique and extraordinary matters and are
reasonable and necessary to protect the legitimate interests of the Company and
its subsidiaries and that a breach of any of the terms of such covenants and
obligations will cause the Company irreparable injury for which adequate
remedies at law are not available. Therefore the Executive agrees that the
Company shall be entitled to an injunction, restraining order, or other
equitable relief from any court of competent jurisdiction, restraining the
Executive from any such breach.
(b) Remedies Cumulative. The Company's rights and remedies under
this Section 16 are cumulative and are in addition to any other rights and
remedies the Company may have at law or in equity.
17. Withholding Taxes. The Company may deduct any federal, state or local
withholding or other taxes from any payments to be made by the Company hereunder
in such amounts which the Company reasonably determine are required to deduct
under applicable law.
18. Survival. The obligations of the Company to pay any amounts due to
Executive after termination of this Agreement, and the obligations of Executive
under Sections 7 and 8 hereof, shall survive any termination of this Agreement
to the extent such obligations do not terminate upon such termination in
accordance with the terms thereof.
19. Amendments, Miscellaneous, etc. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by an instrument
in writing signed by the party against which such change, waiver, discharge or
termination is sought to be enforced and with Board approval. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first written above.
AURORA FOODS INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice Chairman
/s/ Xxx Xxxxx
------------------------
Xxx Xxxxx
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