EXHIBIT 10.38
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (this "Agreement") is made and entered into as
of July 29, 2002 to be effective as of the date of the closing of the
Acquisition (as defined below) by and between Swift & Company, a Delaware
corporation (the "Company"), and Xxxxxxxx Xxxxx (the "Executive").
WHEREAS, the Executive was previously employed by ConAgra Foods, Inc, a
Delaware corporation ("ConAgra"), or one of its affiliates;
WHEREAS, the Company, HMTF Rawhide, L.P., a Delaware limited
partnership, and ConAgra are parties to that certain Agreement, dated May 20,
2002, whereby certain affiliates of Hicks, Muse, Xxxx & Xxxxx Incorporated and
ConAgra will jointly operate certain former operations of ConAgra, including the
fresh beef and fresh pork businesses (the "Acquisition"); and
WHEREAS, the Company has agreed to employ the Executive on an
employment at-will basis to provide services to the Company subsequent to the
Acquisition and desires to grant the Executive the severance benefits provided
herein in connection with the Executive's employment;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for the other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Severance Benefits. Subject to the Executive and the Company
executing a mutually-agreeable release at the time of Executive's termination,
if the Company terminates Executive's employment during the thirty-six (36)
months following the date of the closing of the Acquisition (the "Severance
Period") for any reason other than a termination of Executive's employment for
cause, then the Company shall pay to the Executive a severance benefit equal to
$43,750 per month for the remainder of the Severance Period; provided, however,
that if such termination shall occur on or subsequent to the eighteenth month
following the closing of the Acquisition, then the Company shall pay to the
Executive a severance benefit equal to $43,750 per month for the subsequent
eighteen months.
2. Release of Existing Severance Benefits. Except for the obligations
of the Company set forth in this Agreement and the offer letter of even date
herewith, the Executive waives any and all rights to any severance payments
and/or special "stay" bonus that he is otherwise legally entitled to receive
from ConAgra or the Company or any of their respective affiliates. ConAgra shall
be a third party beneficiary to this Agreement for the purposes of enforcing the
provisions of this Section 2.
3. Confidential Information.
(a) Executive acknowledges that (i) the Company has trade,
business and financial secrets and other confidential and proprietary
information (collectively, the
"Confidential Information"), (ii) the Confidential Information has been
developed or acquired by Company through the expenditure of substantial time,
effort and money and provides Company with an advantage over competitors who do
not know or use such Confidential Information, and (iii) during his employment
by Company, Executive will have access to and will become acquainted with
Confidential Information of Company. Confidential Information without limitation
includes sales materials, technical information, processes and compilations of
information, records, specifications and information concerning customers or
venders, manuals relating to suppliers' products, customer lists, information
regarding methods of doing business and the identity of suppliers. Confidential
Information shall not include information that is generally known to the public.
(b) In consideration for having access to such Confidential
Information and in order to protect its value to Company, during Executive's
employment by Company and at all times thereafter, Executive shall hold in
confidence and not directly or indirectly disclose or use or copy or make use of
any Confidential Information, except to the extent authorized in writing by the
Board of Directors of the Company or compelled by legal process. The Executive
agrees to use reasonable efforts to give Company notice of any and all attempts
to compel disclosure of any Confidential Information, in such a manner so as to
provide Company with written notice at least five (5) days before disclosure or
within one (1) business day after Executive is informed that such disclosure
will be compelled, whichever is earlier. Such written notice shall include a
description of the information to be disclosed, the court, government agency, or
other forum through which the disclosure is sought, and the date by which the
information is to be disclosed, and shall contain a copy of the subpoena, order
or other process used to compel disclosure.
(c) Executive agrees that, on or before the date of
Executive's termination of employment with the Company, Executive shall
immediately assemble and deliver to the Company each and every original and copy
of any and all documents, compilations, recordings, and any other form of
written, printed, recorded, typed and every other matter, thing or material of
any kind which Executive has in Executive's possession, custody or control that
is or was the property of Company or relates in any way to the business of
Company.
(d) As used in this Section 3, "Company" shall include the
Company and any of its affiliates.
4. Injunctive and Other Relief. Executive acknowledges that a violation
of Section 3 hereof will cause irreparable damage to Company, entitling Company
to an injunction in a court of competent jurisdiction, in addition to whatever
remedies Company may have at law or in equity, including recovery of reasonable
attorneys' fees and costs incurred by Company in enforcing the terms of Section
3 hereof.
5. Termination Due to Death, Disability or Resignation. Termination of
employment due to the death, disability or resignation of Executive will not be
considered a termination of employment for purposes of this Agreement.
Notwithstanding the foregoing, if Executive dies following a termination of
employment that entitled him to severance benefits under this Agreement, but
prior to receipt of all such benefits, his beneficiary (as designated to Company
in writing) or, if none, his estate, will be entitled to receive all unpaid
amounts due hereunder.
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6. Not a Contract of Employment/Benefit Plan. This Agreement is not an
employment contract for any definite period of time. This Agreement shall have
no effect whatsoever on the at-will employment relationship between Executive
and Company. Nothing herein shall be deemed to give Executive the right to be
retained in the employ of Company or to restrict the right of Company to
discharge Executive at any time and for any reason, with or without cause or
notice. Nothing herein shall be deemed to give Company the right to require
Executive to remain in the employ of Company or to restrict Executive's right to
terminate his employment at any time. This Agreement is a severance agreement,
not an employee benefit plan or a trust. This Agreement shall not give Executive
any security or other interest in any assets of Company.
7. Severability. Each part, term or provision of this Agreement is
severable from the others. Notwithstanding any possible future finding by a duly
constituted authority that a particular part, term or provision is invalid, void
or unenforceable, this Agreement has been made with the clear intention that the
validity and enforceability of the remaining parts, terms and provisions shall
not be affected thereby.
8. Choice of Law. This Agreement shall be interpreted and construed in
accordance with and shall be governed by the laws of the State of Delaware and,
when applicable, the laws of the United States.
9. Entire Agreement. This Agreement constitutes the entire agreement of
the parties relating to the subject matter hereof. Any previous agreement with
respect to this subject matter is superseded by this Agreement. No term,
provision or condition of this Agreement may be modified in any respect except
by a writing executed by both of the parties hereto. No person has any authority
to make any representation or promise not set forth in this Agreement. This
Agreement has not been executed in reliance upon any representation or promise
except those contained herein.
10. Waiver Under Agreement. The failure of either party to enforce or
require timely compliance with any term or provision of this Agreement shall not
be deemed to be a waiver or relinquishment of rights or obligations arising
hereunder, nor shall such a failure preclude the enforcement of any term or
provision or avoid the liability for any breach of this Agreement.
11. Costs and Attorneys' Fees. If any action is initiated to enforce
this Agreement, the prevailing party shall be entitled to recover from the other
party its reasonable costs and attorneys' fees.
12. Construction. This Agreement shall be deemed drafted equally by
both the parties. Its language shall be construed as a whole and according to
its fair meaning. Any presumption or principle that the language is to be
construed against any party shall not apply. The headings in this Agreement are
only for convenience and are not intended to affect construction or
interpretation. Any references to paragraphs, subparagraphs, or sections are to
those parts of this Agreement, unless the context clearly indicates to the
contrary. Also unless the context clearly indicates to the contrary, (a) the
plural includes the singular and the singular includes the plural; (b) "and" and
"or" are each used both conjunctively and disjunctively; (c) "any," "all,"
"each," or "every" means "any and all, and each and every"; (d) "includes" and
"including" are each "without limitation;" and (e) "herein," "hereof,"
"hereunder" and other similar compounds
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of the word "here" refer to this entire Agreement and not to any particular
paragraph, subparagraph, section or subsection.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon Company and its successors and assigns. Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of Company to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that Company would be required to perform it if no such
succession had taken place. In the event of such a succession, the term
"Company" as used in this Agreement shall mean Company as already defined, as
well as any successor to its business or assets which assumes and agrees to
perform this Agreement by operation of law or otherwise.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
SWIFT & COMPANY
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Title: President and Chief
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Executive Officer
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EXECUTIVE
/s/ XXXXXXXX XXXXX
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Xxxxxxxx Xxxxx
X-0
