EX 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of June 1,
2001 between SUPREMA SPECIALTIES, INC., a New York corporation (the "Employer"
or the "Company"), and Xxxx Xxxxxxxxx (the "Employee").
WHEREAS, the Employer and the Employee entered into an
employment agreement (the "Employment Agreement") which terminates on April 1,
2002;
WHEREAS, Employer and Employee wish to amend the Employment
Agreement to extend the initial termination date of the Employee's employment
and to restate such Employment Agreement to include certain additional
amendments reflected below.
NOW, THEREFORE, the Employer and Employee hereby amend and
restate the Employment Agreement to read in its entirety as follows:
W I T N E S S E T H :
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WHEREAS, the Employer desires to continue to employ the
Employee as its Chairman of the Board, President and Chief Executive Officer and
to be assured of his services as such on the terms and conditions hereinafter
set forth; and
WHEREAS, the Employee is willing to accept such employment on
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
1. Term. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer for a five-year period commencing
effective as of the date of this Agreement (the "Effective Date") (such period
being herein referred to as the "Initial Term," and any year commencing on the
Effective Date or any anniversary of the Effective Date being hereinafter
referred to as an "Employment Year"). After the Initial Term, this Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than thirty days
prior to the expiration of the Initial Term or any Renewal Term, either the
Employee or the Company give written notice that employment will not be renewed
("Notice of Non-Renewal"), whereupon (i) if the Employee gives the Notice of
Non-Renewal, the term of the Employee's employment shall terminate upon the
expiration of the Initial Term or the then current Renewal Term, as the case may
be, or (ii) if the Company gives the Notice of Non-Renewal or terminates this
Agreement without Cause, the term of the Employee's employment shall be for a
final five (5) year period (the "Final Renewal Term"), commencing effective at
the date of the Notice of Non-Renewal, unless sooner terminated pursuant to
Section 8 hereof.
2. Employee Duties.
A. During the term of this Agreement, the Employee shall
have the duties and responsibilities of Chairman of the Board, President and
Chief Executive Officer of the Employer, reporting directly to the Board of
Directors of the Employer (the "Board"). It is understood that such duties and
responsibilities shall be reasonably related to the Employee's position.
B. The Employee shall devote substantially all of his
business time, attention, knowledge and skills faithfully, diligently and to the
best of his ability, in furtherance of the business and activities of the
Company.
3. Place of Performance. In connection with his employment by
the Company, the Employee shall be based at the Company's principal executive
offices and shall not be required to be absent therefrom on travel status or
otherwise for more than 45 days in any calendar year. The Company shall not,
without the written consent of the Employee, relocate or transfer its principal
executive offices to a location more than thirty miles from the Employee's
principal residence. The Company will promptly pay (or reimburse the Employee
for) all reasonable moving expenses incurred by the Employee relating to a
change of his principal residence in connection with any such relocation of the
Company's principal executive offices to which the Employee has consented, and
will indemnify the Employee against any loss realized in the sale of his
principal residence in connection with any such change of residence.
4. Compensation.
A. During the term of this Agreement, the Employer shall
pay the Employee a base salary (the "Base Salary") at a rate of $250,000 per
annum in respect of each
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Employment Year, payable in advance in installments, and in the same manner as
the other key employees of the Employer are paid, or at such other times as may
mutually be agreed upon between the Employer and the Employee. Such Base Salary
may be increased from time to time at the discretion of the Board.
B. Bonus. In addition to the Employee's Base Salary the
Company shall pay to the Employee an annual bonus (the "Annual Bonus") equal to
5% of the Company's pre-tax profits in excess of $650,000 for the preceding
fiscal year (the Base Salary, as determined pursuant to paragraphs 4.A and 4.B
above, and Annual Bonus, together, referred to as "Base Compensation"). The term
"pre-tax profit" of the Company means the pre-tax profit of the Company's
business excluding extraordinary gains, income, expenses or losses as determined
by the Company's independent public accountants whose determination shall be
final and binding upon the parties hereto. The Annual Bonus shall be payable no
later than 90 days after the end of the Company's fiscal year. In addition to
the foregoing, the Company may, as directed by formal action of its Board of
Directors, formulate and pay additional bonus or discretionary compensation
payments to the Employee, but such additional amounts shall be at the pleasure
of the Board unless pursuant to a written agreement with the Employee.
C. In addition to the foregoing, the Employee shall be
entitled to such other cash bonuses and such other compensation in the form of
stock, stock options or other property or rights as may from time to time be
awarded to him by the Board during or in respect of his employment hereunder.
5. Benefits.
A. During the term of this Agreement, the Employee shall
have the right to receive or participate in all benefits and plans which the
Company may from time to time institute during such period for its employees and
for which the Employee is eligible. Nothing paid to the Employee under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary or any other obligation payable to the
Employee pursuant to this Agreement.
B. During the term of this Agreement, the Employee will be
entitled to the number of paid holidays, personal days off, vacation days and
sick leave days in each calendar year as are determined by the Company from time
to time for its senior executive officers, but not less than one month
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in any calendar year (prorated, in any calendar year during which the Employee
is employed under this Agreement for less than the entire such year, in
accordance with the number of days in such calendar year during which he is so
employed) . Such vacation may be taken in the Employee's discretion at such time
or times as are not inconsistent with the reasonable business needs of the
Company.
C. In order to facilitate travel by the Employee in
performance of his duties hereunder, the Company shall provide the Employee,
without cost to him, with a Company-owned, leased automobile, of his choice. The
Company shall pay all expenses of maintaining, insuring and operating said
automobile upon the presentation of appropriate vouchers and/or costs to the
extent that the Company does not pay such expenses.
6. Expenses. During the term of this Agreement, the Company
shall reimburse the Employee for such costs and expenses as the Employee may
reasonably incur in connection with the performance of his duties hereunder,
including, but not limited to, expenses for entertainment, travel and similar
items. The Company will reimburse the Employee for such expenses upon
presentation of expense statements or vouchers or such other supporting
information as the Company may require, in accordance with the policies and
procedures of the Company for the reimbursement of business expenses of its
senior executive officers.
7. Insurability; Right to Insure. During the continuance of
the Employee's employment hereunder, the Company shall have the right to
maintain term life insurance in its own name covering the Employee's life in
such amount as shall be determined by the Company for a term ending on the
termination date of this Agreement. The Employee shall aid in the procuring of
such insurance by submitting to the required medical examinations, if required
by filling out, executing and delivering such applications and other instruments
in writing as may be reasonably required by an insurance company or companies to
which application or applications for insurance may be made by or for the
Company.
8. Termination. Employee's employment under this Agreement may
be terminated without any breach of this Agreement only on the following
circumstances:
8.1. Death. The Employee's employment under this Agreement
shall terminate upon his death.
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8.2. Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, the Employee shall have been
absent from his duties under this Agreement for 150 calendar days during any
calendar year, the Employer may terminate the Employee's employment under this
Agreement.
8.3. Cause. The Employer may terminate the Employee's
employment under this Agreement for Cause. For purposes of this Agreement, the
Employer shall have "Cause" to terminate the Employee's employment under this
Agreement upon (a) the willful and continued failure by the Employee to
substantially perform his duties under this Agreement (other than any such
failure resulting from the Employee's incapacity due to physical or mental
illness) after demand for substantial performance is delivered by the Employer,
in writing, specifically identifying the manner in which the Employer believes
the Employee has not substantially performed his duties and the Employee fails
to perform as required within 15 days after such demand is made, (b) the willful
engaging by the Employee in criminal misconduct (including embezzlement and
criminal fraud) which is materially injurious to the Employer, monetarily or
otherwise or (c) the conviction of the Employee of a felony. For purposes of
this paragraph, no act, or failure to act, on the Employee's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board (other than the Employee) at a meeting of the Board called and held for
such purpose (after reasonable written notice to the Employee and an opportunity
for him, together with his counsel, to be heard before the Board), finding that
in the good faith opinion of the Board, the Employee was guilty of conduct set
forth above in clause (a), (b) or (c), and specifying the particulars thereof in
detail.
8.4. Termination by the Employee for Good Reason, Upon a
Change of Control or Because of Ill Health. The Employee may terminate his
employment under this Agreement (a) for Good Reason (as hereinafter defined),
(b) at any time within six months after a Change of Control, or (c) if his
health should
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become impaired to any extent that makes the continued performance of his duties
under this Agreement hazardous to his physical or mental health or his life,
provided that, in the latter case, the Employee shall have furnished the
Employer with a written statement from a qualified doctor to such effect and
provided, further, that at the Employer's request and expense the Employee shall
submit to an examination by a doctor selected by the Employer and such doctor
shall have concurred in the conclusion of the Employee's doctor.
8.4.1. Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (a) any assignment to the Employee of any duties or
reporting obligations other than those contemplated by, or any limitation of the
powers of the Employee in any respect not contemplated by, this Agreement, (b)
failure by the Employer to comply with its material obligations and agreements
contained in this Agreement, or (c) failure of the Employer to obtain the
assumption of the agreement to perform this Agreement by any successor as
contemplated in Section 11(f) of this Agreement. With respect to the matters set
forth in clauses (a), (b) and (c) of this paragraph, the Employee must give the
Employer 30 days prior written notice of his intent to terminate this Agreement
as a result of any breach or alleged breach of the applicable provision and the
Employer shall have the right to cure any such breach or alleged breach within
such 30 day period.
8.4.2. Change of Control. For purposes of this
Agreement, a "Change of Control" shall be deemed to occur, unless previously
consented to in writing by the Employee, upon (a) individuals who, as of the
date hereof, constitute the Board of Directors of the Employer (the "Incumbent
Board") ceasing for any reason to constitute at least a majority of the Board of
Directors of the Employer (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Employer's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
person other than the Board; (b) the acquisition of
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beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the
Exchange Act) of 15% or more of the voting securities of the Employer by any
person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) not affiliated with the Employee or the Employer; provided,
however, that no Change of Control shall be deemed to have occurred for purposes
of this Agreement if such person, entity or group acquires beneficial ownership
of 15% or more of the voting securities of the Employer as a result of a
combination of the Employer or a wholly-owned subsidiary of the Employer with
such person, entity or group or another entity owned or controlled by such
person, entity or group (whether effected by a merger, consolidation, sale of
assets or exchange of stock or otherwise); (c) the commencement of a proxy
contest against the management for the election of a majority of the Board of
the Employer if the group conducting the proxy contest owns, has or gains the
power to vote at least 15% of the voting securities of the Employer; (d) the
consummation of a reorganization, merger or consolidation, or the sale, transfer
or conveyance of all or substantially all of the assets of the Employer to any
person or entity not affiliated with the Employee or the Employer or (e) the
complete liquidation or dissolution of the Employer.
9. Notice of Termination.
Any termination of the Employee's employment by the Employer
or by the Employee (other than termination by reason of the Employee's death)
shall be communicated by written Notice of Termination to the other party of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
10. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's
employment is terminated by his death, the date of his death, (b) if the
Employee's employment is terminated pursuant to Section 8.2 above, the date on
which the Notice of Termination is given, (c) if the Employee's employment is
terminated pursuant to Section 8.3 above, the date specified on the Notice of
Termination after the expiration of any cure periods and (d) if the Employee's
employment is terminated for
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any other reason, the date on which a Notice of Termination is given after the
expiration of any cure periods.
11. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by
reason of his death, the Employer shall pay to such person as he shall designate
in notice filed with the Employer, or if no such person shall be designated, to
his estate as a lump sum benefit, his full Salary to the date of his death in
addition to any payments to the Employee's spouse, beneficiaries or estate may
be entitled to receive pursuant to any pension or employee benefit plan or life
insurance policy or similar plan or policy then maintained by the Employer, and
such payments shall, assuming the Employer is in compliance with the provisions
of this Agreement, fully discharge the Employer's obligations with respect to
Section 4 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform
his duties hereunder as a result of incapacity due to physical or mental
illness, the Employee shall continue to receive his Salary until the Employee's
employment is terminated pursuant to Section 8.2 of this Agreement, or until the
Employee terminates his employment pursuant to Section 8.4(a) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Base Compensation, at the rate in effect at
the time Notice of Termination is given, for one year, and thereafter for one
additional year at an annual rate equal to 50% of the Base Compensation which
would have been in effect under this Agreement, plus, in each case, any
disability payments otherwise payable by or pursuant to plans provided by the
Employer. To the extent physically and mentally capable of so doing without
potentially impairing or damaging his health, the Employee shall provide
consulting services to the Employer during the period that he is receiving
payments pursuant to this Section 11(b).
(c) If the Employee's employment shall be terminated for
Cause, the Employer shall pay the Employee his full Base Compensation through
the Date of Termination, at the rate in effect at the time Notice of Termination
is given, and the Employer shall, assuming the Employer is in compliance with
the provisions of this Agreement, have no further obligations
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with respect to Section 4 of this Agreement, but all other obligations of the
Employer under this Agreement, including the obligations to indemnify, defend
and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall
terminate the Employee's employment other than pursuant to Sections 8.2 or 8.3
hereof (it being understood that a purported termination pursuant to Section 8.2
or 8.3 hereof which is disputed and finally determined not to have been proper
shall be a termination by the Employer in breach of this Agreement), including
as a result of a Change of Control, and/or (B) the Employee shall terminate his
employment for Good Reason or at any time within six months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Base Compensation through the Date of
Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination
(in lieu of any further payments pursuant to Section 4 of this Agreement),
severance, payable on the first day following the Date of Termination, in a lump
sum amount equal to the higher of (a) $1,250,000 or (b) the total compensation
(including the value of all perquisites, such as health and life insurance and
car allowance and the value of all stock options granted to Employee by Employer
received or earned by the Employee from the Employer during the twelve months
prior to the Termination Date, multiplied by five (5) ("Severance Pay") and;
(iii) all other damages to which the Employee may be
entitled as result of the termination of his employment under this Agreement,
including all legal fees and expenses incurred by him in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
The amount (if any) payable pursuant to this Section 11(d)
(the "Severance Total") shall be increased by an amount (the "Increase")
sufficient so that after the payment by the Employee of (A) any income taxes on
the Increase and (B) any excise tax on the sum of (I) the Severance Total and
(II) the Increase, the Employee shall have received an amount (net of such
taxes) equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover
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any excise and income taxes payable as aforesaid) and shall not be required to
repay to the Employer any amount which is ultimately and finally determined by
the Internal Revenue Service (or an appropriate court) to have been in excess of
the amount permitted to be received without incurring such excise tax, and
Employer agrees to use its best efforts to support the Employee's position that
such amounts are not subject to excise tax in any dispute with the Internal
Revenue Service or in any other administrative or judicial proceedings.
(iv) The value of the stock options described above will
be determined using a Black-Scholes valuation methodology by an investment bank
reasonably acceptable to both Company and Employee. The fees for such valuation
will be paid by the Company.
(e) The Employee shall not be required to mitigate the
amount of any payment provided for in this Section 11 by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
this Section 11 be reduced by any compensation earned by the Employee as the
result of employment by another employer or business or by profits earned by the
Employee from any other source at any time before and after the Date of
Termination.
(f) The Employer will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such Agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Employer" shall mean the Employer and
any successor to its business and/or assets which executes the Agreement or
which otherwise becomes bound by the terms and conditions of this Agreement by
operation of law.
(g) (A) Upon the occurrence of a Change of Control, or (B)
if in breach of this Agreement, the Employer
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shall terminate the Employee's employment other than pursuant to Sections 8.2 or
8.3 hereof (it being understood that a purported termination pursuant to Section
8.2 or 8.3 hereof which is disputed and finally determined not to have been
proper shall be a termination by the Employer in breach of this Agreement), or
(C) if the Employee shall terminate his employment for Good Reason at any time,
then notwithstanding the vesting and exercisability schedule in any stock option
agreement between the Employer and Employee, all unvested stock options granted
by the Employer to the Employee pursuant to such agreement shall immediately
vest and become exercisable and shall remain exercisable for not less than 180
days thereafter.
12. Confidentiality; Noncompetition.
(a) The Employer and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique and
extraordinary and, as a result of such employment, the Employee will be in
possession of confidential information relating to the business practices of the
Company. The term "confidential information" shall mean any and all information
(verbal and written) relating to the Company or any of its affiliates, or any of
their respective activities, other than such information which can be shown by
the Employee to be in the public domain (such information not being deemed to be
in the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 12(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, directly or indirectly, use, communicate, disclose or disseminate to
any person, firm or corporation any confidential information regarding the
clients, customers or business practices of the Company acquired by the Employee
during his employment by Employer, without the prior written consent of
Employer; provided, however, that the Employee understands that Employee will be
prohibited from misappropriating any trade secret at any time during or after
the termination of employment.
(b) The Employee hereby agrees that he shall not, during
the period of his employment and for a period of twelve (12) months following
such employment, directly or
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indirectly, within any county (or adjacent county) in any State within the
United States or territory outside the United States in which the Company is
engaged in business during the period of the Employee's employment or on the
date of termination of the Employee's employment, engage, have an interest in or
render any services to any business (whether as owner, manager, operator,
licensor, licensee, lender, partner, stockholder, joint venturer, employee,
consultant or otherwise) competitive with the Company's business activities.
Notwithstanding the foregoing, the Employer shall be permitted to own not more
than 5% of any class of securities of a competitive business which is publicly
traded and/or is registered on reports under the Securities and Exchange Act of
1934.
(c) The Employee hereby agrees that he shall not, during
the period of his employment and for a period of twelve (12) months following
such employment, directly or indirectly, take any action which constitutes an
interference with or a disruption of any of the Company's business activities
including, without limitation, the solicitations of the Company's customers, or
persons listed on the personnel lists of the Company. At no time during the term
of this Agreement, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation,
the Employee hereby acknowledges and agrees that the provisions of subparagraphs
12(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee's employment for
any reason whatsoever, all documents, records, notebooks, equipment, price
lists, specifications, programs, customer and prospective customer lists and
other materials which refer or relate to any aspect of the business of the
Company which are in the possession of the Employee including all copies
thereof, shall be promptly returned to the Company.
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(f) The parties hereto hereby acknowledge and agree that
(i) the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 12, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Company shall
be entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach.
(g) Each of the rights and remedies enumerated in Section
12 shall be independent of the other, and shall be severally enforceable, and
all of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
(h) If any provision contained in this Section 12 is
hereafter construed to be invalid or unenforceable, the same shall not affect
the remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(i) If any provision contained in this Section 12 is found
to be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(j) It is the intent of the parties hereto that the
covenants contained in this Section 12 shall be enforced to the fullest extent
permissible under the laws and public policies of each jurisdiction in which
enforcement is sought (the Employee hereby acknowledging that said restrictions
are reasonably necessary for the protection of the Company). Accordingly, it is
hereby agreed that if any of the provisions of this Section 12 shall be
adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by limiting and
reducing it so as to be enforceable to the extent permissible, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other jurisdiction.
(k) The limitation of Sections 12(a), 12(b) and 12(c) shall
terminate if upon termination of this Agreement for any reason the Company does
not fulfill its obligation as
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required by Section 11 of this Agreement, however, such termination shall not
affect the rights of the Employee to receive all payments undiminished in any
way, provided by Section 11. The provision of this Section 12(k) shall also
apply during the time the Employee is receiving any payments from the Company as
a result of a termination resulting from disability.
13. Indemnification. The Employer shall indemnify and hold
harmless the Employee against any and all expenses reasonably incurred by him in
connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been
an employee, officer or director of the Company, whether or not he continues to
be such an employee, officer or director at the time of incurring such expenses,
except insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted. The Employee shall
be entitled to the protection of any liability insurance policies the Company
may elect to maintain for the benefit of its officers and directors. The Company
shall cause to be maintained in effect for not less than six years from a Change
of Control (to the extend available) policies of directors' and officers'
liability insurance.
14. General. This Agreement is further governed by the
following provisions:
(a) Notices. All notices relating to this Agreement shall
be in writing and shall be either personally delivered, sent by telecopy
(receipt confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
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To the Employer:
Suprema Specialties, Inc.
000 Xxxx 00xx Xxxxxx
Post Xxxxxx Xxx 000, Xxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: President
To the Employee:
Xxxx Xxxxxxxxx
0 Xxxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
With, in either case, a copy in the same manner to:
Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ethan Seer, Esq.
Xxxxxx Xxxxxx, Esq.
(b) Parties in Interest. Employee may not delegate his
duties or assign his rights hereunder. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of the Employee by the Employer and contains all of
the covenants and agreements between the parties with respect to such employment
in any manner whatsoever. Any modification or termination of this Agreement will
be effective only if it is in writing signed by the party to be charged.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey. Employee
agrees to and hereby does submit to jurisdiction before any state or federal
court of record in Bergen County, New Jersey, or in the state and county in
which such violation may occur, at Employer's election.
(e) Severability. In the event that any term or condition
in this Agreement shall for any reason be held by a court of competent
jurisdiction to be invalid, illegal or
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unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other term or condition of this Agreement, but this
Agreement shall be construed as if such invalid or illegal or unenforceable term
or condition had never been contained herein.
(f) Execution in Counterparts. This Agreement may be
executed by the parties in one or more counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement, and shall become effective when one or more counterparts
has been signed by each of the parties hereto and delivered to each of the other
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
SUPREMA SPECIALTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Vencchanos
Title: Chief Financial Officer
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
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