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EXHIBIT 10.15
RETENTION AGREEMENT
THIS AGREEMENT, made as of this 19th day of January, 1998 (the
"Effective Date"), by and between DEL MONTE CORPORATION, a New York corporation
(the "Company") and Xxxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H:
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 hereby agree as follows:
1. Employment. The Executive agrees to devote his working time,
on substantially a full-time basis, to the performance of 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 affiliates, or any successor organization.
2. Termination for Cause; Resignation for Good Reason;
Termination by Reason of Death. (a) This Agreement shall be terminated
immediately and neither party shall have any obligation hereunder, except as so
provided herein, 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) dishonesty; (ii)
deliberate and continual refusal to perform employment duties on substantially a
full-time basis; (iii) failure 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,
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unless, the Executive is disabled, or (iv) 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) Resignation for "Good Reason" shall mean the resignation of
the Executive after: (i) a reduction without the Executive's consent in the
Executive's salary or the bonus that the Executive is eligible to earn under the
Company's annual cash bonus plan (or successor plan thereto); provided, however,
that nothing herein shall be construed to guarantee the Executive's bonus for
any year if the applicable performance targets are not met; and provided,
further, that it shall not constitute Good Reason hereunder if the Company makes
an appropriate pro rata adjustment to the applicable bonus and targets under the
annual cash bonus plan in the event of a change in the Company's fiscal year;
(ii) a material reduction without the Executive's consent in the aggregate
welfare benefits provided to the Executive pursuant to the welfare plans,
programs and arrangements in which the Executive is eligible to participate, or
(iii) a material reduction without the Executive's consent in the Executive's
job title or responsibilities. Unless the Executive provides written
notification of an event described in clauses (i) through (iii) above within
ninety (90) days after the Executive knows or has reason to know of the
occurrence of any such event, the Executive shall be deemed to have consented
thereto and such event shall no longer constitute Good Reason for purposes of
this Agreement. If the Executive provides such written notice to the Company,
the Company shall have ten (10) business days from the date of receipt of such
notice to effect a cure of the event described therein and, upon cure thereof by
the Company to the reasonable satisfaction of the Executive, such event shall no
longer constitute Good Reason for purposes of this Agreement.
(d) 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 (other than
pursuant to Section 2(c), this Agreement shall be terminated immediately and the
Executive shall have no entitlement to any compensation other than what has
already been earned or accrued at the time of termination.
3. Termination Without Cause.
(a) Severance Amount. If the Executive's employment is terminated
by the Company without Cause or by the Executive for Good Reason, the Company
shall pay to the Executive the following Severance
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Amount. For purposes hereinafter, the Severance Period shall mean three (3)
months unless the Executive becomes entitled to eighteen (18) months as defined
hereunder:
The Executive shall be entitled to three months of current base
pay, to be paid on the Company's regular pay days. However, if the Executive
executes and delivers to the Company, on a timely basis, 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, its subsidiaries and
affiliates from all types of employment-related claims, the Company will then
provide the Executive over an 18 month period commencing on the date of
termination the total severance amount which is the sum of (A) plus (B), where
(A) is the Executive's highest annual rate of base salary in effect during the
twelve (12) month period prior to such termination and (B) is the target award
under the Company's annual cash bonus plan for the year in which such
termination occurs (or, if greater, the amount of the award for the next
preceding year of employment).
The Executive will also be eligible for an award under the annual
cash bonus plan of the Company, based upon the target award for the year in
which the Executive's termination without Cause or for Good Reason occurs,
prorated for the active employment period during such year and adjusted for
performance. Such pro rata bonus, if any, shall be paid following the end of the
normal performance cycle.
(b) Employee Benefit Plans. In the event the Company terminates
the Executive's employment other than for Cause, or the Executive terminates for
Good Reason, 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 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 the Executive will be subject to all changes in such plans
occurring during the Severance Period generally applicable to all employees,
unless former employees on salary continuation are specifically excepted.
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(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.
(e) Fringe Benefits. During the Severance Period, the Company
will continue the Executive's participation in any management perquisites
applicable to the Executive as of the date of such termination until the first
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, or (iii) the end of the Severance Period.
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 Del Monte Foods Company, 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,
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without limitation, 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 otherwise payable under any of the Company's
regular severance policies, (including any benefits under the existing
separation program referenced in Section 3(b) 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.
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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
X. X. Xxx 000000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Secretary of the Board
(ii) To the Executive: Xxxxx X. Xxxxxx
c/o Del Monte Corporation
P. O. 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.
(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 against
the Company. 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.
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(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 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. This 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/ XXXXXXX X. XXXXXXX
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Chief Executive Officer
/s/ XXXXX X. XXXXXX
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Executive: Xxxxx X. Xxxxxx
