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EXHIBIT 10.42
EXECUTION COPY
RELEASE OF CLAIMS, CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
This Release of Claims, Confidentiality and Non-Competition Agreement
("Agreement") is made and entered into as of April 6, 1999, by and between
Southern Foods Group, L.P., a Delaware limited partnership (the "Partnership"),
and Xxxxxxx X. Xxxx ("Xxxx").
WHEREAS, Xxxx is a party to that certain Executive Employment Agreement
dated as of the 4th day September, 1997 between the Partnership and Xxxx (the
"Existing Employment Agreement"); and
WHEREAS, Xxxx is presently the Vice Chairman of the Partnership, and
the parties desire to enter into this agreement (i) to further protect and
maintain the trade secrets and confidential proprietary information of the
Partnership, (ii) to prohibit Xxxx from competing with the Partnership as
described herein, and (iii) to release the Partnership from the claims specified
herein;
NOW, THEREFORE, in consideration of the premises and the mutual terms
and conditions herein contained, the Partnership and Xxxx hereby agree as
follows:
1. Release of Claims by Xxxx. Effective as of the Calculation Date
(hereinafter defined), Xxxx hereby releases and discharges the Partnership, its
partners, officers, employees and agents, and the heirs, successors, assigns and
legal representatives of each such party, of and from any and all claims, causes
of action, suits, liabilities, damages, losses and expenses of any and every
nature whatsoever arising out of, or in connection with, (i) his employment with
the Partnership from the beginning of such employment to the date of the payment
in Paragraph 5 hereof, (ii) the determination and payment of compensation to him
by the Partnership with respect to all time periods up to and including the
Calculation Date, or (iii) any rights which he might claim to receive any
interest in the Partnership, or to receive payment for any such interest;
provided, however, that the foregoing shall not constitute a release of any
claims, causes of action, suits, liabilities, damages, losses and expenses
arising under this Agreement.
(a) The foregoing release by Xxxx includes, but is not limited
to, all "Employment Related Claims," which for purposes of this
Agreement means claims arising out of or related to Xxxx'x employment
as an officer and employee of the Partnership, including without
limitation, claims for constructive discharge, unlawful employment
discrimination on the basis of age or any other form of unlawful
employment discrimination, retaliation, breach of contract (express or
implied), intentional or negligent infliction of emotional distress,
invasion of privacy, defamation of character, duress, fraud or
misrepresentation or any violation of Title VII of the Civil Rights Act
of 1964, as amended, the Americans with Disabilities Act (42 U.S.C.
12101 et seq.), as amended, the Family and Medical Leave Act, the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 62, et seq)., as
amended, or the Texas Commission on Human Rights Act, as amended.
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(b) Xxxx agrees that he has been given a reasonable period of
time within which to review and consider this Agreement.
(c) In recognition of its statutory duty as an employer, the
Partnership advises Xxxx that this Agreement is an important legal
document and that he should consult with an attorney before executing
it. The Partnership also advises Xxxx that he has twenty-one (21) days
to consider whether to sign this Agreement and that he has eight (8)
days after this Agreement is fully executed to revoke his acceptance of
its terms. In the event of revocation by Xxxx (i) this Agreement shall
be revoked and shall be of no force and effect whatsoever except as
necessary to enforce the provisions of this subparagraph (c), and (ii)
Xxxx and the Partnership shall each immediately return to the other all
consideration received pursuant to this Agreement.
(d) This Paragraph 1 shall not apply to any liabilities or
obligations that the Partnership may have to Xxxx for compensation or
benefits due to Xxxx under (i) the Existing Employment Agreement, (ii)
that certain Consulting Agreement dated as of September 5, 1997 between
Mid-America Dairymen, Inc. and Xxxx, as may be amended from time to
time (the "Consulting Agreement"), (iii) any pension plan, 401(k) plan,
management security plan, supplemental executive retirement plan or any
other similar plan in which Xxxx is a participant as of the Calculation
Date or (iv) any employee benefit plan maintained by the Partnership
that provides medical benefits of any kind, including without
limitation hospitalization, dental or other health benefits of any kind
(all of such plans referred to in clauses (iii) and (iv) of this
sentence, the "Partnership Benefit Plans"). Xxxx reserves all rights
and remedies with respect to compensation and benefits due to him under
the Existing Employment Agreement, the Consulting Agreement and the
Partnership Benefit Plans.
2. Confidentiality/Trade Secrets. Xxxx acknowledges that his position
with the Partnership is one of trust and confidence both by reason of his
position and by reason of his access to and contact with the trade secrets and
confidential and proprietary business information of the Partnership. Both
during the term of this Agreement and thereafter, Xxxx covenants and agrees as
follows:
(a) that he will exercise diligence to protect and safeguard
the trade secrets and confidential and proprietary information of the
Partnership including but not limited to the identity of its customers
and suppliers, the identity of its officers and other key employees and
their areas of expertise, its marketing and expansion plans, its
arrangements with customers and suppliers, and its technical data,
records, compilations of information, processes, and specifications
relating to its customers, suppliers, products and services;
(b) that he shall not disclose any of such trade secrets and
confidential and proprietary information, except as may be required in
the course of his employment; and
(c) that he shall not use, directly or indirectly, for his own
benefit or for the benefit of another, any of such trade secrets and
confidential and proprietary information.
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All files, records, documents, drawings, specifications, memoranda,
notes, or other documents relating to the business of the Partnership, whether
prepared by Xxxx or otherwise coming into his possession shall be the exclusive
property of the Partnership and shall be delivered to the Partnership and not
retained by Xxxx upon termination of his employment with the Partnership for any
reason whatsoever.
Xxxx shall not be required to keep confidential or restrict the use of
any trade secrets or confidential and proprietary data and information of the
Partnership (i) which he may be required to disclose at the express direction of
any authorized government agency, pursuant to a subpoena or other court process,
or as otherwise required by any law, rule, regulation or order of any regulatory
body, (ii) which has become generally available to the public by means other
than a breach of this Agreement by Xxxx, or (iii) as to which disclosure or use
the Partnership consents in writing in its sole and absolute discretion.
3. Non-Competition. Xxxx covenants and agrees that during the term of
this Agreement and after termination of this Agreement for a period of three (3)
years, (i) he shall not without the prior written consent of the Partnership, in
its sole discretion, directly or indirectly, as an employee, employer,
consultant, agent, principal, partner, shareholder, corporate officer, director
or through any kind of ownership or investment (other than ownership of
securities of publicly held corporations of which Xxxx owns less than five
percent (5%) of any class of outstanding securities) or in any other
representative or individual capacity, engage in any business or render any
services to any business that is in competition with the business of the
Partnership in any state in which the Partnership is conducting business at the
time of the Calculation Date, and (ii) he shall not encourage, solicit or
induce, directly or indirectly, any employee, manager, supervisor or officer of
the Partnership to terminate his or her employment with the Partnership or any
affiliate of the Partnership.
4. Remedies for Breach of Covenants of Xxxx. The covenants set forth in
Paragraphs 2 and 3 of this Agreement shall continue to be binding upon Xxxx,
notwithstanding Xxxx'x termination of employment with the Partnership. It is
expressly agreed that the remedy at law for the breach of any such covenant is
inadequate and that injunctive relief, in addition to any other remedies that
may be available to the Partnership at law or in equity, shall be available to
the Partnership to prevent to the breach or any threatened breach thereof.
5. Consideration.
(a) Amount of Aggregate Consideration. Subject to the terms of
Paragraphs 6 and 7 hereof, as consideration for the covenants and
agreements of Xxxx set forth in this Agreement, Xxxx shall, immediately
upon his termination of employment with the Partnership for any reason
whatsoever, including his death, be entitled to receive the sum of (i)
the Consideration Amount (calculated as set forth below), plus (ii) the
Gross-Up Payment (calculated as set forth below). In the event of
Xxxx'x death, Xxxx'x legal representatives will be entitled to payment
of the Consideration Amount and the Gross-Up Payment provided for under
the terms of this Agreement.
The "Consideration Amount" that Xxxx shall receive upon the
termination of Xxxx'x employment with the Partnership shall be
calculated as of the date of such termination (the
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"Calculation Date") and shall be a sum equal to the excess of (i) the
Formula Put Price (as defined and calculated in accordance with the
provisions of Section 8.11(c) of the Second Amended and Restated
Agreement of Limited Partnership of the Partnership, as amended and in
effect on the date of this Agreement (the "SFG Partnership Agreement"),
except that for the purposes of this Agreement, subparagraph (C) of the
SFG Partnership Agreement shall be modified so that the result obtained
after making the calculations provided for in subparagraph (B) of the
SFG Partnership Agreement would be multiplied by the percentage equal
to the Xxxx Deemed Partnership Interest (defined below) measured as of
the Calculation Date, rather than by Xxxxxxxx'x percentage ownership of
the Partnership), calculated as of the Calculation Date over (ii)
$1,000,000. In other words, the Consideration Amount shall be
determined in accordance with the following formula:
Consideration Amount = (Formula Put Price x .02) - $1,000,000,
assuming that the Xxxx Deemed Partnership Interest remains at
2% as of the relevant Calculation Date
For purposes of this Agreement, the "Xxxx Deemed Partnership Interest"
at the time of the Calculation Date shall mean such Common Partner
Interest as would be held by Xxxx at such time if, as of the date
hereof, Xxxx held a two percent (2%) Common Partner Interest and the
actual holders of Common Partner Interests held, instead of the Common
Partner Interests actually held, the Common Partner Interests shown
below for such Partners:
SFG Management Limited Liability Company .98%
Xxxx Xxxxxxxx 48.51%
Dairy Farmers of America, Inc. 48.51%
Xxxxxxx X. Xxxx 2.00%
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100.00%
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The Consideration Amount shall be increased by an additional
payment (the "Gross-Up Payment") which will be in an amount such that,
after payment by Xxxx of all applicable federal income taxes, Medicare
taxes and Utah state taxes on the Consideration Amount and on the
Gross-Up Payment, Xxxx is in substantially the same position as if the
Consideration Amount were treated as a gain recognized on a sale by
Xxxx of a common limited partnership interest in the Partnership, the
gain from which would be taxed for applicable federal and state tax
purposes as long term capital gains taxed at the applicable federal and
state tax rates for long term capital gains in effect as of the
Calculation Date.
(b) Payment of Consideration. The Consideration Amount plus
the Gross-Up Payment shall be payable in cash by the Partnership as
soon as practicable following the end of the 30-day period described in
Paragraph 6 below, but in no event later than sixty (60) days following
the Calculation Date, unless the Partnership is unable to make such
payments because of any contractual restriction with any lenders of the
Partnership limiting the amount or timing of such payments that can be
made during any fiscal year of the Partnership (a "Payment
Restriction"), in which case the Partnership shall make such payments
as are permitted under the terms of such Payment Restriction. Any such
payments that are postponed because of Payment Restrictions shall be
paid to Xxxx as soon as, and to the
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extent, permitted by the Payment Restrictions. Any portion of the
Consideration Amount and the Gross-Up Payment which are not made within
one year of the Calculation Date shall bear interest at a floating rate
equal to the prime rate in effect from time to time as published in the
Southwest Edition of the Wall Street Journal. Such accrued interest
shall be paid to Xxxx as soon as, and to the extent, permitted by the
Payment Restrictions.
(c) Allocation of Consideration. The parties agree that, of
the aggregate consideration paid under this Agreement, $10,000 is paid
for the release of claims in Paragraph 1 and the remainder is paid for
the promises and covenants made by Xxxx in Paragraphs 2 and 3 hereof.
6. Limited Termination Rights. Notwithstanding Paragraph 5 above, in
the event that Xxxx'x employment with the Partnership is terminated either (i)
involuntarily by the Partnership, with or without cause, or (ii) by Xxxx
resigning with good reason, then Xxxx shall have the right to terminate this
Agreement by delivering to the Partnership written notice of such termination
within 30 days following the Calculation Date. As a result of any such
termination of this Agreement, Xxxx would no longer be bound by the covenants or
agreements set forth herein and would not be entitled to receive any payments
hereunder, and the Partnership would not be obligated to pay the Consideration
Amount, the Gross-Up Payment or any other amounts hereunder. For the purposes of
this Agreement, Xxxx shall be deemed to have resigned for good reason if the
Partnership assigns to Xxxx any duties inconsistent in any material respect with
Xxxx'x position (including status, office, title, and reporting requirements),
authority, duties or responsibilities or any other action by the Partnership
which results in material diminution in such position, authority, duties or
responsibilities of Xxxx.
7. Coordination with Change in Control Agreement. In the event, as a
result of or in connection with a Change in Control (as defined in that certain
Change in Control Agreement of even date herewith between the Partnership and
Xxxx (the "Change in Control Agreement")), Xxxx becomes entitled to receive the
consideration set forth in such agreement, then this Agreement shall terminate
and Xxxx shall not be entitled to receive any payments whatsoever under this
Agreement and the Partnership shall not be obligated to pay the Consideration
Amount, the Gross-Up Payment or any other amounts hereunder. In the event that a
Change of Control occurs within one year following the Calculation Date,
regardless of whether Xxxx'x termination of employment with the Partnership was
voluntary or involuntary and whether all or any portion of the Consideration
Amount and Gross-Up Payment have been paid hereunder, Xxxx shall be entitled to
receive the consideration set forth in the Change in Control Agreement, subject
to the terms and conditions thereof; provided, however that such consideration
shall be reduced by the amount of any payments made by the Partnership to Xxxx
hereunder.
8. Third Party Consents. This Agreement is subject to obtaining all
necessary third party consents to the actions set forth above, including but not
limited to obtaining all necessary consents under the terms of the Partnership's
credit agreement and the indenture executed in connection with the Meadow
Gold/Xxxxxx transactions.
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9. Miscellaneous.
(a) Waivers Applicable to Covenants Not to Compete. In its
sole discretion, the Partnership shall have the right at any time and
from time to time, upon written approval of the Partnership's general
partner, to waive all or any portion of the Partnership's rights under
the covenants not to compete contained in Paragraph 3 of this Agreement
as applicable to Xxxx, including, without limitation, reducing the
scope of such covenants not to compete applicable to Xxxx or reducing
the time period or the geographical area of such covenants not to
compete applicable to Xxxx; provided that any such covenants not to
compete as effected by such waiver shall remain fully in effect. In
order to be effective, any such waiver must be in writing, approved by
the Partnership's general partner as provided above, and executed by an
authorized officer of the Partnership.
(b) Notices. Any notices, claims or demands which any party is
required or may desire to give to another under or in conjunction with
this Agreement shall be in writing, and shall be given by addressing
the same to such other party(ies) at the address set forth below, and
by (i) depositing the same so addressed, postage prepaid, first class,
certified or registered, in the United States mail (herein referred to
as "Mailing"), (ii) overnight delivery by a nationally recognized
overnight courier service (e.g. UPS, Federal Express), (iii) delivering
the same personally to such other party(ies), or (iv) if a fax number
is listed below, transmitting by facsimile and Mailing the original.
Any notice shall be deemed to have been given five (5) U.S. Post Office
delivery days following the date of Mailing; one business day after
timely delivery to an overnight courier; if by personal delivery, upon
such delivery; or if by facsimile, the day of transmitter's
confirmation of receipt of a facsimile transmission if transmitted
within customary business hours, or if not transmitted within customary
business hours, the following business day.
If to the Partnership:
Southern Foods Group, L.P.
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxxx
Fax No.: (000) 000-0000
If to Xxxx:
Xx. Xxxxxxx X. Xxxx
0000 Xxxx 0000 Xxxxx
Xxxxxxx, Xxxx 00000
Fax No.:
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Any party may change its address for notice by giving notice in
accordance with the terms of this Paragraph 9(b).
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(c) Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
(d) Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future
laws effective during the term hereof, such provision shall be fully
severable and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part
hereof; and the remaining provisions hereof shall remain in full force
and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance therefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be
added automatically as part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be
possible and still be legal, valid or enforceable.
(e) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements or
understandings, whether written or oral, with respect to the subject
matter hereof. No terms, conditions or warranties, other than those
contained herein, and no amendments or modifications hereto shall be
binding unless made in writing and signed by the parties hereto.
(f) Binding Effect. This Agreement shall extend to and be
binding upon and inure to the benefit of the parties hereto, their
respective heirs, representatives, successors and assigns. Since the
duties and services of Xxxx hereunder are special, personal and unique
in nature, Xxxx may not transfer, sell or otherwise assign his rights,
obligations or benefits under this Agreement.
(g) Remedies. If Xxxx or the Partnership shall file any
judicial action for enforcement of this Agreement and successfully
recover compensation or damages, the successful party shall be entitled
to recover in such proceeding an additional amount equal to interest at
ten percent (10%) per annum on the amount recovered from the date such
amount was due and payable together with all expenses and reasonable
attorneys' fees incurred in obtaining legal advice and counseling
respecting his or its rights under this Agreement and in prosecuting
and disposing of such action. The provisions of this subparagraph shall
be cumulative and without prejudice to any other right or remedy to
which Xxxx or the Partnership may be entitled either at law, in equity
or under this Agreement and shall not constitute the exclusive remedy
of Xxxx or the Partnership for breach of this Agreement.
(h) Waiver. The waiver by either party hereto of a breach of
any term or provision of this Agreement shall not operate or be
construed as a waiver of a subsequent breach of the same provisions by
either party or of the breach of any other term or provision of this
Agreement.
(i) Titles. Titles of the paragraphs herein are used solely
for convenience and shall not be used for interpretation or construing
any word, clause, paragraph or provision of this Agreement.
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(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be an original, but which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
XXXX: THE PARTNERSHIP:
SOUTHERN FOODS GROUP, L.P.
By: SFG Management Limited Liability
Company
By:
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Xxxxxxx X. Xxxx Its:
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