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EXHIBIT 10.15
AGREEMENT
This Agreement ("Agreement") is entered into as of October 14, 1997, by and
between Tom's Foods Inc., a Delaware corporation (the "Company"), and S. Xxxxxx
Xxxxxx ("Executive").
WHEREAS the Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel;
and
WHEREAS the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of
the Company's management, including the Executive, to their assigned duties;
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Defined Terms. The definition of capitalized terms used in this
Agreement is provided in Section 13 hereof.
2. Term of Agreement. This Agreement shall commence on the date hereof and
shall continue in effect through December 31, 2001.
3. Company's Covenants Summarized. In order to induce the Executive to
remain in the employ of the Company, the Company agrees, under the conditions
described herein, to pay the Executive the Severance Payments described in
Section 4 hereof. This Agreement shall not be construed as creating an express
or implied contract of employment and, except as otherwise agreed in writing
between the Executive and the Company, the Executive shall not have any right
to be retained in the employ of the Company.
4. Severance Payments.
4.1 In the event of termination of the Executive without Cause, Executive
shall be entitled to receive all unpaid Base Salary earned to the date of
termination and the Company shall continue to pay to Executive as a severance
payment (the "Severance Payment") Executive's monthly salary as of the date of
termination for twelve (12) months following the termination date; provided,
however, that if Executive becomes otherwise employed any time during such
twelve (12) month period, the Company thereafter shall pay to Executive only
one-half of the remaining monthly Severance Payment due to Executive. In
addition, in the event of a Constructive Dismissal of Executive, the Company
shall pay to Executive the Severance Payment and such Severance Payment shall
not be reduced due to
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Executive's subsequent employment during the twelve (12) month period. If
Executive is terminated or resigns under this paragraph, Executive shall be
entitled to receive all accrued and unpaid incentive compensation and other
bonuses (if any) for the year in which such termination occurs, prorated as of
the date of termination. Any payments pursuant to this paragraph shall
constitute liquidated damages and shall be Executive's sole right to
compensation in the event of a Constructive Dismissal or termination by the
Company without Cause. Executive's acceptance of each payment provided for in
this paragraph shall constitute a release of the Company, its officers,
directors and affiliates, from all claims Executive may then have against the
Company, except for the obligation of the Company to continue to make the
Severance Payment for the balance of the twelve (12) month period.
In the event of termination for Cause, Executive shall be entitled to receive
all unpaid Base Salary earned to the date of termination, but all other rights
of Executive hereunder shall terminate as of the effective date of Executive's
termination.
4.2 This Agreement shall terminate automatically upon the death of
Executive. In addition to any benefits under any insurance, retirement or
other plan of the Company for Executive, the Company shall pay within thirty
(30) days of the date of death to the Executive's legal representatives or, if
the Executive shall have filed with the Company a designation of a person to
receive such payment, such person, the sum of any unpaid Base Salary through
the date of termination and any accrued and unpaid incentive compensation or
other bonuses (if any) for the year in which such termination occurs prorated
as of the date of termination.
4.3 If, during the period of this Agreement, Executive comes under such
illness, physical or mental disability or other incapacity ("Disability") that
the Board determines that he is unable to perform his full-time duties to the
Company for a period in excess of 60 substantially consecutive days or
nonconsecutive periods aggregating more than one hundred and twenty (120) days
within any six (6) month period, exclusive of Saturdays, Sundays, holiday or
days on which Executive was on vacation, the Company may terminate the
Executive by giving notice to Executive of its intention to terminate due to
Disability and this Agreement shall terminate at the end of the month in which
such notice was given. In the event of such termination, the Company shall pay
the sum of (i) any unpaid Base Salary through the date of termination, (ii) any
accrued and unpaid incentive compensation or other bonuses (if any) for the
year in which such termination occurs prorated as of the date of termination,
and (iii) the Severance Payments described in Section 4.1, minus any amounts
payable to Executive under the Company's benefit plans or insurance or social
security payable.
4.4 Upon termination of this Agreement, all obligations of the Company and
rights of Executive under this Agreement shall cease, except as otherwise
provided herein.
5. Entire Agreement; Amendment. This Agreement contains the entire
understanding between the parties and supersedes, and is in lieu of, all other
agreements or
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arrangements relating to the subject matter hereof between Executive and the
Company. This Agreement cannot be changed, modified, or discharged other than
by an agreement in writing signed by the Company pursuant to authorization of
its Board and by Executive.
6. Survival and Benefit. Except as otherwise herein expressly provided,
this Agreement shall inure to the benefit of and be binding upon the Company,
its successors and assigns, and Executive, his heirs, executors, administration
and legal representatives.
7. Severability. In the event that any portion of this Agreement may be
held to be invalid or unenforceable for any reason, it is agreed that said
invalidity or unenforceability shall not affect the other portions of this
Agreement and that the remaining covenants, terms and conditions or portions
thereof shall remain in full force and effect and any court of competent
jurisdiction may so modify or amend the objectionable provision as to make it
valid, reasonable and enforceable.
8. Waiver. The failure of the Company to insist, in any one or more
instances, upon performance of any of the terms or conditions of this
Agreement, shall not be construed as a waiver or relinquishment of any rights
granted hereunder or the future performance of any such term, covenant or
condition. No amendment or waiver of any provision of this Agreement shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
9. Governing Law. This Agreement shall be construed and interpreted under
and pursuant to the laws of the State of Georgia irrespective of the fact that
Executive may become a resident of another state or jurisdiction.
10. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by personal delivery (with
receipt therefor) or by certified mail, return receipt requested, first class
postage prepaid, addressed to the respective addresses set forth below, or to
such other address as either party may have furnished to the other in writing
in accordance herewith, except that notice of change of address shall be
effective only upon actual receipt:
To the Company:
Tom's Foods Inc.
000 0xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
To the Executive:
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S. Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
11. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12. Section Headings. All section headings are contained herein for
convenience only and shall not be considered in the interpretation of this
Agreement.
13. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(A) "Base Salary" shall mean Executive's then-current annual base salary.
(B) "Board" shall mean the Board of Directors of the Company.
(C) "Cause" shall mean Executive's conviction of a felony related to the
Company's business and the performance of Executive's assigned duties, breach
of any statutory or common law duty of loyalty to the Company, Executive's
intentional failure to comply with the terms of this Agreement, and
Executive's Gross Negligence (as defined herein) or willful misconduct in the
performance of the Executive's duties. "Gross Negligence" shall mean the
absence of that degree of care which every person of common sense, however
inattentive he or she may be, exercises under the same or similar
circumstances, or such other meaning as such term may then have under the law
of the State of Georgia.
(D) "Constructive Dismissal" shall mean a constructive dismissal (which
shall include a material diminution of the Executive's responsibilities) of
the Executive following a change in ownership of the Company.
(E) "Company" shall mean Tom's Foods Inc., a Delaware corporation and any
successor to its business and/or assets which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
(F) "Executive" shall mean the individual named in the first paragraph of
this Agreement.
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IN WITNESS WHEREOF, the Company had caused this Agreement to be executed and
Executive has executed this Agreement, all as of the day and year first above
written.
TOM'S FOODS INC.
By /s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
EXECUTIVE:
/s/ S. XXXXXX XXXXXX
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