EXHIBIT 10.33
FARM FRESH, INC.
EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT is made in the City of Norfolk, Virginia, effective
______________, 1997, by and between FARM FRESH, INC., a corporation organized
under the laws of the Commonwealth of Virginia, having its principal office in
Norfolk, Virginia (the "Corporation"), and ___________________, a resident of
Virginia (the "Executive").
WHEREAS, the Executive has experience and knowledge in the affairs
of the Corporation, and his services are key to the continued successful
management of the Corporation; and
WHEREAS, the Corporation desires to retain the services and business
counsel of the Executive and to induce the Executive to remain in his executive
capacity with the Corporation.
NOW, THEREFORE, to accomplish the foregoing objective, the
Corporation and the Executive hereby agree as follows:
1. Employment. Upon the terms and subject to the conditions
contained herein, during the Employment Term (as hereinafter defined), the
Corporation hereby employs Executive as [INSERT JOB TITLE] of the Corporation.
Executive shall be responsible for such duties as are commensurate with his
office and as may from time to time be assigned to Executive by the Board of
Directors and the President of the Corporation. Executive hereby accepts such
employment and, during the Employment Term, shall devote his full business time,
skill, energy and attention to the business of the Corporation, and shall
perform his duties in a diligent, trustworthy, loyal, businesslike and efficient
manner, all for the purpose of advancing the business of the Corporation.
2. Compensation. During the Employment Term, the Corporation
shall pay, and Executive shall be entitled to receive from the Corporation, such
compensation as may be established from time to time by the Board of Directors
of the Corporation in the exercise of its sole discretion.
3. Term and Termination. The Employment Term shall commence on the
date hereof and shall continue thereafter until terminated as herein provided.
Either party may terminate the Employment Term for any reason provided that it
has given the other party at least thirty (30) days advance written notice of
its intent to terminate. In addition, the Corporation shall have the right to
terminate the Employment Term at any time with or without notice for Cause (as
hereinafter defined) or in the event Executive suffers an illness or incapacity
of such character that it has or will likely substantially disable him from
performing his duties hereunder for a period of more than ninety (90)
consecutive days (herein, a "Disability"). Furthermore, the Employment Term
shall terminate immediately upon the death of Executive. Notwithstanding
anything to the contrary set forth in this Agreement, Executive's obligations
and covenants set forth in Sections 5 and 6 hereof shall survive the termination
of this Agreement.
4. Severance.
(a) General. The Executive shall be entitled
to receive Severance (as hereinafter defined) according to the remaining
provisions of this section if the Executive's employment with the Corporation
terminates because of an event described in Sections 4(b) or 4(c). If the
Executive's employment terminates for reasons other than those described in
Sections 4(b) or 4(c), no Severance shall be payable to the Executive. If
Executive is entitled to such Severance, Severance shall be the exclusive remedy
of Executive in the event of early termination of the Employment Term as herein
provided and shall be in lieu of any other claim for damages related to early
termination.
(b) Termination by the Corporation. The
Executive shall be entitled to receive Severance if the Executive's
employment is terminated by the Corporation without Cause for reasons other than
Executive's death or Disability within three months prior to, or within twelve
months following, the occurrence of a Change of Control (as hereinafter
defined). The term "Cause" shall mean (i) misappropriation or embezzlement of
any funds or property of the Corporation by the Executive, (ii) Executive's
conviction of a felony or a crime involving moral turpitude, (iii) a material
breach of this Agreement by Executive or (iv) Executive's gross misconduct,
neglect or dereliction in the performance of his duties for the Corporation.
(c) Termination by Executive for Good Reason.
The Executive shall be entitled to receive Severance if the Executive
voluntarily terminates employment for "Good Reason," within three months prior
to, or within twelve months following, the occurrence of a Change of Control. As
used herein, "Good Reason" shall mean (i) the Executive's compensation or
employment related benefits are in the aggregate reduced in any material respect
(other than a reduction of any bonus based on the Executive's performance); (ii)
the Executive's status, title(s), office(s), working conditions, or management
responsibilities are diminished significantly (other than changes in reporting
or management responsibilities required by applicable federal or state law); or
(iii) the Executive's place of employment is moved more than twenty miles or to
a location other than the Corporation's principal executive offices without the
Executive's consent. A voluntary termination of employment by the Executive for
any reason not set forth in this section does not entitle the Executive to
Severance.
(d) Severance.
(i) "Severance" shall equal the Executive's Base Period
Income (as hereinafter defined) and shall be paid in six (6) equal consecutive
monthly installments. Severance payable to the Executive hereunder shall
commence on the later of the fifteenth business day after the Executive's
employment termination date or the first day of the month following the
Executive's employment termination date. At the Corporation's sole discretion,
however, Severance payments may be commenced on an earlier date. Severance is
subject to reduction according to Section 4(g). If Executive dies after the
commencement of Severance, Executive's estate shall be entitled to the balance
of any and all payments thereafter.
(e) Change of Control. "Change of Control"
shall mean the occurrence of any of the following:
(i)any person, including a "group" as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, other than Citicorp
Venture Capital, Ltd. or entities under its common control, shall acquire more
than fifty (50) percent of the voting control of the Corporation or its parent
corporation, FF Holdings Corporation ("Holdings"); or
(ii)the sale of substantially all of the assets
of the Corporation.
For purposes of this Agreement, a Control of Change is deemed to
occur on the date on which an event described in (i) or (ii) above occurs. If a
Change in Control occurs on account of a series of transactions, the date on
which a Change of Control is deemed to occur is the date of the last such
transaction.
(f) Base Period Income. The Executive's "Base
Period Income" shall equal the Executive's base salary during the six (6)
calendar month period immediately preceding the date of notice of termination.
(g) Severance Reductions. If any payments which
the Executive has the right to receive from the Corporation (including Severance
payments) or any affiliated entity or any payments or benefits under any plan
maintained by the Corporation or an affiliated entity would otherwise constitute
an "excess parachute payment" (as defined in Internal Revenue Code Section
280G), Severance payments must be reduced pro-rata (but not below zero) to the
largest amount that will result in no portion of any such payment being subject
to the excise tax imposed by Internal Revenue Code Section 4999. The
determination of any reduction pursuant to this subsection must be made by the
Corporation in good faith, before any such payments are due and payable to the
Executive.
5.Confidentiality. Executive shall not (except as authorized by the
Board of Directors of the Corporation or as required in the scope of his
employment) during the term of his employment or at any time thereafter disclose
to any person, firm or company any information relating to the organization,
business or finances of the Corporation or any of its customers, agents or
suppliers, or any of its trade secrets or details of any dealings, transactions
or affairs of which he is or may become aware during his employment hereunder.
Executive shall keep absolutely confidential all such matters entrusted to him,
and he shall not use, nor attempt to use, nor permit others to use, any such
information in any manner which may injure or cause loss whether directly or
indirectly to the Corporation.
6.Proprietary Information. Any notes or memoranda or copies thereof
made by Executive during the term of his employment with the Corporation or at
any time thereafter relating to any matter within the scope of the business of
the Corporation or concerning any of its dealings, transactions or affairs shall
be the property of the Corporation. Executive shall not, either during the term
of his employment or at any time thereafter, use or permit others to use any
such notes or memoranda or copies thereof other than for the benefit of the
Corporation. Upon request by the Board of Directors of the Corporation,
Executive shall immediately return any and all such notes and memoranda and
copies thereof to the Corporation.
7.Assignability. The right of the Executive or any other person to
the payment of compensation or other benefits under this Agreement shall not be
assigned, transferred, pledged or encumbered except by will or by the laws of
descent and distribution.
8.Notices. All notices which may be required or given hereunder
shall be in writing addressed to the respective addresses of the parties hereto
as shown below, posted in the U.S. mail by certified or registered mail, or hand
delivered.
As to Corporation: Farm Fresh, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
As to Executive:
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9.Binding Effect. All the terms of this Agreement shall be binding
upon and inure to the benefit of, and be enforceable by, the respective heirs
and legal representatives and the successors and permitted assigns of the
Corporation and the Executive.
10.Governing Law. This Agreement shall be interpreted, construed
and enforced in accordance with the laws of the Commonwealth of Virginia.
11.Jurisdiction. Executive and the Corporation irrevocably submit to
the jurisdiction of the Circuit Court of Norfolk, Virginia in any action or
proceeding arising out of, or relating to, this Agreement, and hereby
irrevocably agree that all claims in respect of any such action or proceeding
may be heard and determined in such courts. Executive and the Corporation agree
that a final judgment in any action or proceeding shall, to the extent permitted
by applicable law, be conclusive and may be enforced in other jurisdictions by
suit on the judgment, or in any other manner provided for by applicable law
related to the enforcement of judgments except that nothing shall restrict a
party's right to appeal the decision in any action or proceeding.
12.Prior Agreements. This Agreement supersedes all prior
arrangements, understandings, letters of intent, conversations and negotiations
between the parties with respect to the subject matter of this Agreement and
shall, together with any other contemporaneously executed agreement between the
parties, constitute the entire agreement between the parties with respect to the
matters mentioned in this Agreement.
13.Amendment. Neither this Agreement nor any term or provision
thereof may be changed, waived, discharged or terminated orally, or in any
manner other than by an instrument in writing signed by the party against which
the enforcement of this change, waiver, discharge or termination is sought.
14.Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which shall
be deemed one and the same instrument.
15.Severability. If for any reason any provision of this Agreement
is declared invalid, void, or unenforceable by a court of competent subject
matter and personal jurisdiction, the validity and binding effect of any
remaining provision of this Agreement shall remain in full force and effect as
if this Agreement had been executed with the invalid, void or unenforceable
provision eliminated.
00.Xxxxxxxxxxxx of Headings. The captions or headings are for
convenience only and are not intended to limit or define the scope or effect of
any provision of this Agreement.
WITNESS the following signatures as of the date first above written.
FARM FRESH, INC.
By:
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Title:
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EXECUTIVE:
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