Exhibit 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July 1, 1998, by and between
AURORA FOODS INC. (the "Company"), a Delaware corporation, and Xxxxx X.
Xxxxxx (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 Vice Chairman 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
Vice Chairman 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 New York, New York 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 Vice Chairman of the
Company, he shall serve, without additional compensation, on the Board, on
the board of directors of any subsidiary of the Company and as Vice Chairman
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 Six Hundred Thousand Dollars
($600,000) 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% but less than 95% of the EBITDA Target (as defined
below) for the
2
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.
3
(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
4
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
5
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.
6
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
7
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
8
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
9
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 to
reflect the impact of such hiring (including without limitation the Base
Salary and Bonus provisions hereof), 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
10
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 Xxxxxxxx Xxxx
Xxxxxxxxx, 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; Other 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; provided, however,
that, nothing in this Agreement shall effect the determination of the persons
who will serve as members of the Board and any subsidiary board which shall
be
11
determined in accordance with the Securityholders Agreement dated as of April
8, 1998 among the Company and the parties thereto and the Dartford Agreement
dated as of April 8, 1998 among the Company, Dartford and the parties
thereto, it being acknowledged that the Executive will constitute a "Dartford
Designee" as defined in and for purposes of such Securityholders Agreement in
the event he serves as a member of the Board and any subsidiary board.
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
12
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.
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/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
Title: Executive Vice President
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
