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EXHIBIT 10.35
SECOND AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Second Amendment (this "Amendment") to that certain
Employment Agreement dated June 20, 1994 (the "Employment Agreement") by and
between Agricultural Products, Inc., a California corporation with its principal
executive offices at 0000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the
"Company"), and Xxx Xxxxxxx, c/o 0000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 (the "Executive"), is made and entered into as of January 15,
1997 (the "Effective Date").
RECITALS
WHEREAS, on June 20, 1994 the Company and the Executive
entered into the Employment Agreement which governs Executive's employment with
the Company for a three-year period, a complete copy of which is attached hereto
as Exhibit A and incorporated herein by this reference;
WHEREAS, on June 5,1996 the Company and Executive entered into
a written amendment of such Employment Agreement ("First Amendment") whereby,
among other things, the aggregate amount of insurance coverage required to be
provided by the Company covering the life of the Executive was reduced from
approximately $3.5 million to $2.5 million, comprised of $1 million owned by
Executive's designee with premiums being paid by the Company as compensation to
Executive and $1.5 million owned by the Company under separate policy; and
WHEREAS, the Company and the Executive now desire to further
amend the Employment Agreement as set forth below.
AGREEMENT
In consideration of the foregoing recitals and the mutual
covenants set forth herein, intending to be legally bound, the Company and the
Executive hereby agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein but not
defined shall have the meanings ascribed to them in the Employment Agreement.
2. CONTINUED VALIDITY OF EMPLOYMENT AGREEMENT. Except as
specifically set forth herein, this Amendment shall not modify nor terminate the
Employment Agreement, as amended by the First Amendment, or any term thereof,
and such Employment Agreement shall remain in full force and effect in
accordance with its terms.
3. TERM. The first sentence of Section 2 of the Employment
Agreement is hereby amended in its entirety to read as follows:
"Subject to the provisions of Section 10 hereof, this
Agreement shall begin on the Effective Date, and shall terminate at the end of
business on the fifth anniversary date of the Effective Date unless extended."
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4. SALARY. Section 4 of the Employment Agreement is hereby
amended in its entirety to read as follows:
"Subject to the provisions of Section 10 hereof, the
Company shall pay the Executive a salary during the Employment Period as
follows: (i) $29,166.67 per month for each of the first thirty-six months (the
"Initial Employment Period"), (ii) $18,750 per month for each of the twelve
months subsequent to the Initial Employment Period, and (iii) $25,000 per month
for each of the remaining twelve months. All salary shall be paid to the
Executive in accordance with the Company's customary payroll practices for its
other executive officers, but, in any event, no less frequently than twice each
month. Any salary paid with respect to less than a full one-month period shall
be prorated, with such proration being based on the number of days in such month
and the number of days during such month that the Employment Period is in
effect. The Company shall not have the right to reduce such salary at any time
during the Employment Period without the prior written consent of the
Executive."
5. TERMINATION. Section 10 of the Employment Agreement is
hereby amended in its entirety to read as follows:
"(A) This Agreement and the Executive's rights
hereunder (except as to salary, bonuses and other rights accrued prior thereto)
shall terminate automatically as set forth in Section 2 above unless terminated
earlier pursuant to the terms of this Section 10.
(B) If the Executive dies at any time during the
Employment Period, then the Company shall pay to the Executive's estate or
designated beneficiary the monthly salary amount set forth in Section 4 hereof
for the month in which such death occurred and for the subsequent month.
Thereafter, if the Executive dies during the Initial Employment Period (as
defined in Section 4 above), the Company shall pay to the Executive's estate or
designated beneficiary the sum of $16,666.67 per month for the remainder of the
Initial Employment Period.
(C) If the Executive is disabled during the
Employment Period, then the Company shall pay to the Executive the monthly
salary amount set forth in Section 4 hereof for the month in which such
disability occurred and for the subsequent three (3) months. Thereafter, if the
Executive is disabled during the Initial Employment Period, the Company shall
pay to the Executive a monthly salary of $22,916.67 for a further and subsequent
three (3) month period of disability (or such shorter period of time as may
remain in the Initial Employment Period) and, if still disabled after the above
time periods, the Company shall pay the Executive a monthly salary of $16,667.67
for the remainder of the Initial Employment Period, if any. If and when the
Executive is able to resume his duties as set forth in this Agreement, then at
such date the Executive will be entitled to the monthly salary set forth in
Section 4 from such date for the remainder of the Employment Period.
(D) If (i) the Company reduces the Executive's salary
set forth in Section 4 of this Agreement or (ii) the Executive's position with
the Company is changed in a manner that materially reduces his responsibilities
or duties, then the Executive's employment shall be considered to have been
terminated by the Company without cause, entitling the Executive to the payment
described in subsection (e) below.
(E) The Company may terminate the Executive's
employment at any time, with or without cause, by giving written notice of such
termination to the Executive in the manner provided
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below for the giving of notices, such termination to be effective on a date
specified therein which is not less than fourteen (14) days from the date of
such notice; provided, however, any termination other than (i) "for cause" as
defined in this Section 10(e), (ii) pursuant to Section 10(b), or (iii) pursuant
to Section 10(c) shall entitle the Executive to receive the monthly salary
amount set forth in Section 4 for the remainder of the Employment Period. If the
Executive is terminated for cause during the Initial Employment Period, the
Executive shall be entitled to receive a monthly salary of $16,667.67 for the
remainder of the Initial Employment Period. Termination "for cause" shall be
deemed to be termination by the Executive (except pursuant to Section 10(b)
hereof or due to the Company's material breach of this Agreement) or termination
by the Company because of the Executive's repeated incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order, or material breach of any provision of this Agreement."
6. WAIVER. No waiver of any obligation of any party hereto
under this Amendment shall be effective unless in a writing specifying such
waiver and executed by the other party. No waiver of any right or remedy of any
party hereto under this Amendment shall be effective unless in a writing
specifying such waiver and executed by such party. A waiver by any party hereto
of any of its rights or remedies under this Amendment on any occasion shall not
be a bar to the exercise of the same right or remedy on any subsequent occasion
or of any other right or remedy at any time.
7. BINDING EFFECT; BENEFITS. This Amendment shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
successors, permitted assigns, heirs and legal representatives, including,
without limitation, any corporation with which the Company may merge or
consolidate; provided, however, that this Amendment, because it relates to
personal services, cannot be assigned by the Executive.
8. ATTORNEYS' FEES AND COSTS. If any action at law or in
equity is necessary to enforce or interpret the terms of this Amendment, the
prevailing party shall be entitled to reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to which he or it may be
entitled. The term "prevailing party" within the meaning of this Section
includes, without limitation, a party who agrees to dismiss an action upon the
other party's payment of all or a portion of the sums allegedly due or
performance of the covenants allegedly breached, or who obtains substantially
the relief sought by it.
9. NOTICES. Any notice or other written communication, with
respect to the employment of the Executive by the Company or any matter related
to the rights or obligations of any party under this Amendment, to be given to a
party hereto shall be given to such party at the address for such party provided
above, or such other address as such party shall provide, in writing, to the
other party. All such notices or communications shall be given by being
personally delivered, placed in the United States mail, postage prepaid,
certified or registered mail, or by being sent by prepaid air freight, overnight
delivery of which is guaranteed and acknowledgment of receipt of which is
required, to the party hereto to which such notice or communication is to be
given at the address for such party specified above. Each such notice shall be
deemed to be effective upon receipt, if personally delivered, one (1) Business
Day after being so sent by air freight, or five (5) Business Days after being so
mailed. For purposes of this Amendment, a Business Day shall mean a day other
than a Saturday, Sunday or Federal or California state holiday.
10. INTEGRATION AND AMENDMENTS. The Employment
Agreement, First Amendment
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and this Amendment constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes any
prior agreement or understanding, whether written or oral, relating to such
subject matter including, without limitation, any board resolutions or oral or
written agreements or representations whatsoever regarding employment between
the Company and the Executive. No modification or amendment to this Amendment
shall be effective or binding unless in writing, specifying such modification or
amendment, executed by the parties hereto.
11. HEADINGS. The headings contained in this Amendment are for
reference purposes only and shall not affect the construction or interpretation
of this Amendment.
12. SEVERABILITY. Should any section, provision or portion of
this Amendment be declared invalid or unenforceable in any jurisdiction, then
such section, provision or portion shall be deemed to be (a) severable from this
Amendment as to such jurisdiction (but not elsewhere) and shall not affect the
remainder hereof, and (b) amended to the extent, and only to the extent,
necessary to permit such section, provision or portion, as the case may be, to
be valid and enforceable in such jurisdiction (but not elsewhere).
13. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which shall, when executed, be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
14. GOVERNING LAW. This Amendment is made and shall be
construed under the internal laws, but not the conflicts of law provisions, of
the State of California.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
THE EXECUTIVE: THE COMPANY:
AGRICULTURAL PRODUCTS, INC., a
California corporation
/s/ XXX XXXXXXX By: /s/ XXXXXXX X. XXXXXXX
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Xxx Xxxxxxx
Its: Chief Financial Officer
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