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EXHIBIT 10.22
RETENTION AGREEMENT
THIS AGREEMENT, made as of this 1st day of January, 1992 (the
"Effective Date"), by and between DEL MONTE CORPORATION, a New York corporation
(the "Company") and XXXXXXX X. SPAIN (the "Executive").
WITNESSETH:
WHEREAS, in order to provide the Executive continued incentives to
remain in the services of the Company, its subsidiaries or affiliates, the
Company desires to provide the Executive with compensation security under the
conditions set forth in this Agreement in the event that the Executive's
employment hereunder is terminated by the Company or any such subsidiary or
affiliate without Cause (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and covenants
herein contained, the parties hereto hereby agree as follows:
1. Employment. The Executive agrees to devote his working time,
on substantially a full-time basis, to the performance of such services for the
Company, its subsidiaries and affiliates as may be assigned to him from time to
time and to perform such services faithfully and to the best of his ability.
This Agreement shall commence on the Effective Date and shall remain in effect
so long as the Executive remains employed by the Company, any of its
subsidiaries or any successor organization.
2. Termination for Cause: Termination by Reason of Death. (a)
This Agreement shall be terminated immediately and neither party shall have any
obligation
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hereunder if the Executive's employment is terminated for Cause (as hereinafter
defined) or by reason of the Executive's death.
(b) The Executive shall be terminated for "Cause" only if the
Executive's employment is terminated as a result of (i) criminal dishonesty,
(ii) deliberate and continual refusal to perform employment duties on
substantially a full-time basis or to act in accordance with any specific lawful
instructions given to the Executive in connection with the performance of his
duties for the Company or any of its subsidiaries or affiliates, unless, the
Executive is disabled, or (iii) deliberate misconduct which is reasonably likely
to be materially damaging to the Company without a reasonable good faith belief
by the Executive that such conduct was in the best interests of the Company.
(c) The Executive may voluntarily terminate his employment at any
time prior to notice by the Company of termination under Sections 2(a) or 3(a)
of this Agreement by written notice to the Company. Upon such notice, this
Agreement shall be terminated immediately and Executive shall have no
entitlement to any compensation provided under Section 3 of this Agreement.
3. Termination Without Cause.
(a) Severance Amount If the Executive's employment hereunder is
terminated by the Company without Cause, the Company shall pay to the Executive
the Severance Amount (as hereinafter defined) over an eighteen (18) month
period commencing with the date of such termination (the "Severance Period").
The total severance amount (the "Severance Amount") for the Severance Period
shall equal the greater of (i) the total dollar amount payable to the Executive
under the formula for
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separation pay as determined by the then existing separation program applicable
to the Executive as of the date of such termination or (ii) the sum of (A) plus
(B), where (A) is the Executive's highest annual rate of salary in effect during
the twelve (12) month period prior to such termination and (B) is the target
award under the Company's Annual Incentive Award Plan (or successor thereto) for
the year in which such termination occurs (or, if greater, the amount of the
award for the next preceding year of full-time employment). The Severance Amount
shall be paid to the Executive in eighteen (18) equal monthly installments over
the Severance Period and each such installment shall be subject to regular
payroll deductions. Payment of the Severance Amount and continuation of benefits
under Section 3(b), below, is conditioned upon the Executive executing and
delivering to the Company a written agreement in the form furnished by the
Company by which the Executive effectively reaffirms the conditions of Section 5
and releases the Company from employment termination-related claims. In
addition, the Executive will also be paid an award under the Annual Incentive
Award Plan (or successor thereto, if any) of the Company, based upon the target
award for the year in which the Executive's termination without Cause occurs,
prorated for the active employment during such year and adjusted for
performance. Such pro rata bonus shall be paid within thirty (30) days of the
date of such termination
(b) Employee Benefit Plans. In the event the Company terminates
the Executive's employment other than for Cause, the Executive will continue to
be eligible for the welfare benefits (other than disability benefits) afforded
by the employee welfare benefit plans and programs maintained by the Company in
which he participated (and at
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an equivalent level of participation) immediately prior to such termination
until the earlier to occur of (i) the end of the Severance Period or (ii) such
time as the Executive is covered by comparable programs of a subsequent
employer. For all other employee benefit plans of the Company, the date of
termination of employment will be treated as the Executive's severance date, as
of which plan participation will cease. Anything herein to the contrary
notwithstanding, the Company shall have no obligation to continue to maintain
during the Severance Period any plan or plan provision solely as a result of the
provisions of this Agreement and Executive will be subject to all changes in
such plans occurring during the Severance Period, unless former employees on
salary continuation are specifically excepted.
(c) Death. In the event of the Executive's death subsequent to
commencement of the Severance Period, the balance of the Severance Amount will
be paid to his beneficiary in a lump sum. "Beneficiary" shall mean the person or
persons designated by the Executive in writing to the Company to receive
payments under this Agreement or, if no such person or persons are designated,
the Executive's estate.
(d) Outplacement Counseling. During the Severance Period, the
Executive will be provided with outplacement counseling services at Company
expense; provided, however, the expense for such services in any calendar year
shall not exceed eighteen percent (18%) of the Severance Amount paid to the
Executive for such calendar year. This counseling shall include, but not be
limited to, skill assessment, job market analysis, resume preparation,
interviewing skills, job search techniques and negotiating.
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(e) Fringe Benefits. The Company will continue the Executive's
participation in the Management Perquisite Program applicable to the Executive
as of the date of such termination until the earlier to occur of (i) the first
anniversary of such termination or (ii) the date the Executive is covered by
comparable fringe benefit programs and perquisites of a subsequent employer.
4. Disability. The event of Permanent Disability (as hereinafter
defined) shall not entitle the Executive to any of the payments or benefits
described in Section 3 above unless the Executive is terminated by the Company
other than for Cause. "Permanent Disability" shall mean physical or mental
disability as a result of which the Executive is unable to perform his duties
with the Company on substantially a full-time basis for any period of six (6)
consecutive months. Any dispute as to whether or not the Executive is so
disabled shall be resolved by a physician reasonably acceptable to the Executive
and the Company whose determination shall be final and binding upon both the
Executive and the Company.
5. Conditions Applicable to Severance Benefits.
(a) Confidentiality and Conduct. The Executive warrants and agrees
that he will not disclose to any person, other than the employees, officers,
directors or shareholders of DMPF Holdings Corporation, a Maryland corporation,
or its affiliates and subsidiaries in connection with the performance of his
duties hereunder, any confidential information or trade secrets concerning the
Company or any of its subsidiaries or affiliates at any time. Notwithstanding
the foregoing, confidential information and trade secrets shall not be deemed to
include, without limitation,
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information which (i) is or becomes available to the public other than as a
result of disclosure by the Executive in violation of this Section 5(a) or (ii)
the Executive is required to disclose under any applicable laws, regulations or
directives of any government agency, tribunal or authority having jurisdiction
in the matter or under subpoena or other process of law. The Executive will at
all times refrain from taking any action or making any statements, written or
oral, which are intended to and do demonstrably and materially damage the
Company, its subsidiaries and affiliates and their respective directors,
officers or employees. In the event that the Executive materially violates the
terms and conditions of this Section 5(a), the Company may, at its election,
upon ten (10) days' notice, terminate the Severance Period and discontinue
payments of the Severance Amount and cease providing the benefits described in
Section 3 above. The Company may also initiate any form of legal action it may
deem appropriate seeking damages or injunctive relief with respect to any
material violations of this Section 5(a).
(b) Non-Competition. The Severance Period shall be terminated and
the Company shall have no further obligation to pay the Severance Amount or to
provide the benefits described in Section 3 above if the Executive, without the
Company's written approval, accepts a position of employment with any other
company conducting a business which is substantially competitive with a business
conducted by the Company.
(c) No Other Severance Benefits. Except as specifically set forth
in this Agreement, the Executive covenants and agrees that he shall not be
entitled to any other form of severance benefits from the Company, including,
without limitation, benefits
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otherwise payable under any of the Company's regular severance policies,
(including any benefits under the existing separation program referenced in
Section 3(a)(i) above) in the event his employment with the Company ends for
any reason and, except with respect to obligations of the Company expressly
provided for herein, the Executive unconditionally releases the Company and its
subsidiaries and affiliates, their respective directors, officers, employees and
stockholders, or any of them, from any and all claims, liabilities or
obligations under this Agreement or under any severance or termination
arrangement of the Company or any of its subsidiaries or affiliates for
compensation or benefits in connection with his employment or the termination
thereof.
6. General Provisions.
(a) Notices. Any notice hereunder by either party to the other
shall be given in writing by personal delivery, telex, telecopy or registered
mail, return receipt requested, to the applicable address set forth below:
(i) To the Company: Del Monte Corporation
Xxx Xxxxxx Xxxxx
X.X. Xxx 000000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Secretary of the Board
(ii) To the Executive: Xxxxxxx X. Spain
c/o Del Monte Corporation
X.X. Xxx 000000
Xxx Xxxxxxxxx, XX 00000-0000
(b) Limited Waiver. The waiver by the Company or the Executive of
a violation of any of the provisions of this Agreement whether express or
implied, shall not operate or be construed as a waiver of any subsequent
violation of any such provision.
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(c) No Assignment. No right, benefit or interest hereunder shall
be subject to assignment, encumbrance, charge, pledge, hypothecation or set off
by the Executive in respect of any claim, debt, obligation or similar process.
This Agreement and all of the Company's rights and obligations hereunder may be
assigned, transferred or delegated to any business entity which, at the time of
any sale, merger, consolidation or other business combination, acquires all or
substantially all of the assets of the Company or to which the Company transfers
all or substantially all of its assets, but no such assignment, transfer or
delegation shall impair any rights that the Executive may have hereunder. Upon
such assignment, transfer or delegation, any such business entity shall be
deemed to be substituted for all purposes as the Company hereunder; provided,
however, that no such assignment, transfer or delegation shall relieve the
Company of its obligations under this Agreement in the event that such
obligations are not performed when due by any such successor to the Company
hereunder.
(d) Amendment. This Agreement may not be amended, modified or
canceled except by written agreement of the parties.
(e) Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall remain in full force
and effect to the fullest extent permitted by law.
(f) Unsecured Promise. Unless otherwise stated herein, no benefit
or promise hereunder shall be secured by any specific assets of the Company.
Unless
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otherwise stated herein, the Executive shall have only the rights of an
unsecured general creditor of the Company in seeking satisfaction of such
benefits or promises.
(g) Governing Law. This Agreement has been made in and shall be
governed by and construed in accordance with the laws of the State of New York.
(h) Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties hereto with respect to the matters
covered hereby.
(i) Headings. The headings and captions of the Sections of this
Agreement are included solely for convenience of reference and shall not control
the meaning or interpretation of any provisions of this Agreement.
(j) Counterparts. Agreement may be executed by the parties hereto
in counterparts, each of which shall be deemed an original, but both such
counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first written above.
DEL MONTE CORPORATION
By: /s/
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Title: Sr. Vice President
/s/ XXXXXXX X. SPAIN
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Xxxxxxx X. Spain
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