Exhibit 10.9
FORM OF AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") made and
entered into as of the [ ] day of ____________ 2003, among American Seafoods
Corporation, a Delaware corporation ("ASC"), American Seafoods Group LLC, a
Delaware limited liability company ("Group"), American Seafoods International
LLC, a Delaware limited liability company ("ASI", and collectively with Group
and ASC, "Employer") and Xxxxxxx Xxxxx who resides at 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxx 00000 ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, American Seafoods, L.P., a Delaware limited partnership,
Group and Executive previously entered into an Employment Agreement (the "Prior
Employment Agreement"), dated as of January 28, 2000 (the "Effective Date");
WHEREAS, ASC is proposing to register and offer for sale Income
Deposit Securities (the "IDS Offering");
WHEREAS, in connection with the IDS Offering, American Seafoods
Holdings, LLC, a Delaware limited liability company and the direct owner of
Group will become American Seafoods Holdings L.P., a Delaware limited
partnership ("Holdings");
WHEREAS, following the consummation of the IDS Offering, ASC will own
a majority of the outstanding equity interests in Holdings, and will be the sole
general partner of Holdings; and
WHEREAS, in connection with the IDS Offering and changes in the
ownership structure of Holdings, Group, ASI and Executive wish to amend and
restate the Prior Employment Agreement in its entirety to take effect as of the
date the Form S-1 registration statement filed with the U.S. Securities Exchange
Commission, in connection with the IDS Offering, is first declared effective
(the "Amendment Date");
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree that the Prior Employment Agreement is hereby amended and
restated as follows, effective as of the Amendment Date:
1. Employment Term. Employer agrees to employ Executive, and
Executive agrees to be so employed, for a term commencing on the date hereof and
ending on January 28, 2005 (the "Initial Term"); provided, however, that,
notwithstanding anything to the contrary set forth in this Agreement, this
Agreement may be earlier terminated pursuant to the terms hereof. The term of
this Agreement will
automatically extend past the Initial Term for succeeding periods of one year
each unless either party terminates this Agreement as of the end of the Initial
Term, or as of the end of any subsequent one-year period (in either case, the
"Termination Date"), by delivering notice to the other party specifying the
applicable Termination Date not earlier than 180 days and not later than 120
days prior to the date so specified. "Employment Term" as used herein shall mean
the term of this Agreement including any automatic extensions pursuant to the
preceding sentence.
2. Position and Duties. Executive shall (in accordance with
Paragraph 11 hereof) diligently and conscientiously devote his full business
time, attention, energy, skill and best efforts to the business of Employer and
the discharge of his duties hereunder. Executive's duties under this Agreement
shall be to serve as Chief Operating Officer of ASC and Group, and Chief
Executive Officer of ASI, with the responsibilities, rights, authority and
duties customarily pertaining to such office and as may be established from time
to time by or under the direction of the board of directors of ASC (the "Board")
or its designees, and Executive shall report to the Board. Executive shall also
act as an officer and/or director and/or manager of such subsidiaries of
Employer as may be designated by the Board, commensurate with Executive's
office, all without further compensation, other than as provided in this
Agreement.
3. Compensation.
(a) Base Salary. Employer shall pay to Executive base salary
compensation at an annual rate of $300,000. The Board shall review Executive's
base salary annually in light of the performance of Executive and Employer, and
may, in its sole discretion, increase or decrease (but not decrease below
$300,000) such base salary by an amount it determines to be appropriate.
Executive's annual base salary payable hereunder, as it may be increased or
decreased from time to time, is referred to herein as "Base Salary." Base Salary
shall be paid in equal installments in accordance with Employer's payroll
practices in effect from time to time for executive officers, but in no event
less frequently than monthly.
(b) Bonus. In addition to Base Salary, Executive may receive an
annual bonus of an amount to be determined by the Board in its sole discretion
taking into consideration individual and corporate performance. Further,
Executive shall be entitled to receive with respect to each fiscal year during
the Employment Term a nondiscretionary annual bonus if the EBITDA (as defined on
Schedule I hereto) of Holdings and its subsidiaries in such fiscal year exceeds
certain targets. The amount and calculation of such bonus are described with
particularity on Schedule I hereto. In no event will (i) the nondiscretionary
bonus be payable if at the time of payment or at any time during the year of
measurement ASC, Holdings or the Group was in default under any credit agreement
relating to indebtedness for borrowed money or (ii) the annual bonus (including
discretionary and nondiscretionary portions thereof) in any year exceed
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150% of Executive's Base Salary. The annual bonus with respect to any year, if
any, shall be paid within 30 days after the receipt by the Board of audited
financial statements for Holdings and its subsidiaries for the pertinent year.
4. Benefits. Executive shall be eligible to participate in all
employee benefit programs of Employer offered from time to time during the term
of Executive's employment hereunder by Employer to employees or executives of
Executive's rank, to the extent that Executive qualifies under the eligibility
provisions of the applicable plan or plans, in each case consistent with
Employer's then-current practice as approved by the Board from time to time. The
foregoing shall not be construed to require Employer to establish such plans or
to prevent the modification or termination of such plans once established, and
no such action or failure thereof shall affect this Agreement. Executive
recognizes that Employer and its affiliates have the right, in their sole
discretion, to amend, modify or terminate their benefit plans without creating
any rights in Executive.
5. Vacation. Executive shall be entitled to up to four weeks of paid
vacation per calendar year. A maximum of one week of vacation time may be
carried over from one calendar year and into the following calendar year;
provided however, that the vacation time be exercised prior to the end of the
subsequent calendar year.
6. Business Expenses. To the extent that Executive's reasonable and
necessary expenditures for travel, entertainment and similar items made in
furtherance of Executive's duties under this Agreement comply with Employer's
expense reimbursement policy, are wholly or partially deductible by Employer for
federal income tax purposes pursuant to the Internal Revenue Code of 1986, as
amended and are documented and substantiated by Executive as required by the
Internal Revenue Service and the policies of Employer, Employer shall reimburse
the Executive for such expenditures; provided documentation therefor is
submitted not later than 45 days after such expense is incurred.
7. Termination by Employer.
(a) Employer shall have the right to terminate the Employment Term
under the following circumstances (and also as contemplated by Paragraph 8(b)):
(i) upon the death of Executive;
(ii) in the event of a disability which prevents or seriously
inhibits Executive from performing his duties for 60 consecutive days as
determined in good faith by the Board, upon 30 days written notice from
Employer to Executive; or
(iii) for Cause (as defined below).
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"Cause" as used in this Agreement shall mean (i) Executive's commission of a
felony or any other crime involving moral turpitude, fraud, misrepresentation,
embezzlement or theft, (ii) Executive's engaging in any activity that is harmful
(including, without limitation, alcoholic or other self-induced affliction), in
a material respect, to Employer or any of its subsidiaries, monetarily or
otherwise, as determined by a majority of the Board; (iii) Executive's material
malfeasance (including without limitation, any intentional act of fraud or
theft), misconduct, or gross negligence in connection with the performance of
his duties hereunder; (iv) Executive's significant violation of any statutory or
common law duty of loyalty to Employer or any of its subsidiaries; (v)
Executive's material breach of this Agreement or of a material Employer policy
(including without limitation, disclosure or misuse of any confidential or
competitively sensitive information or trade secrets of Employer or a
subsidiary); or (vi) Executive's refusal or failure to carry out directives or
instructions of the Board that are consistent with the scope and nature of
Executive's duties and responsibilities set forth herein, in the case of clause
(v) or (vi) above, only if such breach or failure continues for more than 10
days following written notice from Employer describing such breach or failure.
(b) If this Agreement is terminated pursuant to Paragraph 7(a), or
for any other reason (except by Executive pursuant to Paragraph 8 or by Employer
other than pursuant to Paragraph 7(a)), Executive's rights and Employer's
obligations hereunder shall forthwith terminate except that Employer shall pay
Executive his Base Salary earned but not yet paid through the effective date of
termination. In addition, if Executive is terminated pursuant to Paragraph
7(a)(i) or 7(a)(ii), Employer shall also pay Executive within 30 days following
receipt of audited financial statements for the year during which such
termination occurred, a prorated annual bonus in respect of the partial year
during which such termination occurred, the amount to be equal to the full
amount of the nondiscretionary bonus, if any, that would be due under Paragraph
3(b) multiplied by a fraction, the numerator of which is the number of days in
such fiscal year prior to such termination and the denominator of which is 365.
8. Termination by Executive.
(a) Executive shall have the right to terminate the Employment Term
for Good Reason (as defined below), upon 60 days' written notice to the Board
given within 60 days following the occurrence of an event constituting Good
Reason; provided that Employer shall have 10 days after the date such notice has
been given to the Board in which to cure the conduct specified in such notice.
For purposes of this Agreement "Good Reason" shall mean:
(i) Employer's failure to pay or provide when due Executive's
Base Salary, which failure is not cured within 10 days after the receipt by
the Board from Executive of a written notice referring to this provision
and describing such failure; or
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(ii) the failure to continue Executive in his position as
provided in Paragraph 2 or removal of him from such position; or
(iii) a material diminution of Executive's responsibilities,
duties or status, which diminution is not rescinded within 30 days after
the date of receipt by the Board from Executive of a written notice
referring to this provision and describing such diminution.
(b) If this Agreement is terminated pursuant to Paragraph 8(a), or if
Employer shall terminate Executive's employment under this Agreement other than
pursuant to Paragraph 7(a), Executive shall be entitled to the following, which
he acknowledges to be fair and reasonable, as his sole and exclusive remedy, in
lieu of all other remedies at law or in equity, for any such termination:
(i) Base Salary earned but not yet paid through the date of
termination;
(ii) a prorated annual bonus in respect of the partial year
during which such termination occurred, the amount to be equal to the full
amount of the nondiscretionary bonus, if any, that would be due under
Paragraph 3(b) multiplied by a fraction, the numerator of which is the
number of days in such fiscal year prior to such termination and the
denominator of which is 365; and
(iii) an amount equal to Executive's actual Base Salary (not
including any bonus paid or payable) for the 12-month period immediately
prior to such termination (or the period during which Executive was
employed by Employer if less than 12 months), payable in 24 equal
installments during the 24-month period immediately following such
termination (the "Severance Pay Period").
In the event of any such termination, Executive shall use commercially
reasonable efforts to secure alternative employment. During the last six months
of the Severance Pay Period, any compensation, income or benefits earned by or
paid to (in cash or otherwise) the Executive as an employee of or consultant to
a company other than Employer shall reduce the amount of severance payments
payable during such six-month period pursuant to Paragraph 8(b)(iii).
(c) If Executive terminates his employment at any time during the
term of this Agreement other than pursuant to Paragraph 8(a), without limiting
or prejudicing any other legal or equitable rights or remedies which Employer
may have upon such breach by Executive, Executive will receive his Base Salary
earned but not yet paid through the date of termination.
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9. Services Unique. Executive recognizes that Executive's services
hereunder are of a special, unique, unusual, extraordinary and intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated for in damages, and in the event of a breach of this
Agreement by Executive (particularly, but without limitation, with respect to
the provisions hereof relating to the exclusivity of Executive's services and
the provisions of Paragraph 11), Employer shall, in addition to all other
remedies available to it, be entitled to equitable relief by way of an
injunction and any other legal or equitable remedies. Anything to the contrary
herein not withstanding, Employer may seek such equitable relief in a federal or
state court in New York; and the Executive hereby submits to jurisdiction in
those courts.
10. Protection of the Employer's Interests. To the fullest extent
permitted by law, all rights worldwide with respect to any intellectual or other
property of any nature conceived, developed, produced, created, suggested or
acquired by Executive during the period commencing on the date hereof and ending
six months following the termination of Executive's employment hereunder shall
be deemed to be a work made for hire and shall be the sole and exclusive
property of Employer. Executive agrees to execute, acknowledge and deliver to
Employer at Employer's request, such further documents as the Employer finds
appropriate to evidence the Employer's rights in such property. Executive
further acknowledges that in performing his duties hereunder, he will have
access to proprietary and confidential information and to trade secrets of
Employer and its subsidiaries . Any confidential and/or proprietary information
of Employer or its subsidiaries shall not be used by Executive or disclosed or
made available by Executive to any person except (i) as required in the course
of Executive's employment or (ii) when required to do so by a court of law, by
any governmental agency having supervisory authority over the business of
Employer or by any administrative or legislative body (including a committee
thereof) with apparent jurisdiction to order him to divulge, disclose or make
accessible such information, it being understood that Executive will promptly
notify Employer of such requirement so that Employer may seek to obtain a
protective order. Upon expiration or earlier termination of the term of
Executive's employment, Executive shall return to Employer all such information
that exists in written or other physical form (and all copies thereof) under
Executive's control.
11. Non-Competition.
(a) Exclusivity of Employment. Executive agrees that his employment
hereunder is on an exclusive basis, and that during the Employment Term, he will
not engage in any other business activity. Notwithstanding the foregoing,
nothing in this Agreement shall preclude Executive from (i) serving on the
boards of directors of other corporations (subject to the approval of the Board
which shall not be unreasonably withheld), (ii) engaging in charitable and
public service activities, (iii) engaging in speaking and writing activities, or
(iv) from managing his personal investments, provided
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that such activities are disclosed in writing to the Board in a notice that
references this provision and do not interfere with Executive's availability or
ability to perform his duties and responsibilities hereunder.
(b) Noncompete. Executive agrees that during the Employment Term, and
the Severance Pay Period (if applicable), and the 12-month period thereafter he
shall not, directly or indirectly, engage in, or participate as an investor in,
an officer, employee, director or agent of, or consultant for, any entity
engaging in any line of business competitive with that of Employer or any of its
subsidiaries or affiliates, or any line of business which Employer or any of its
subsidiaries or affiliates is contemplating; provided however that nothing
herein shall prevent him from investing as less than a 5% shareholder in the
securities of any company listed on a national securities exchange or quoted on
an automated quotation system. Executive's participation in an entity in any of
the foregoing capacities, other than participation described in the foregoing
proviso, being sometimes referred to herein as being a "Participant."
(c) Nonsolicitation of Employees. Executive agrees that during the
Employment Term and the Severance Pay Period (if applicable), and the 36-month
period thereafter (the "Nonsolicitation Period"), he will not directly or
indirectly, (i) employ, or be a Participant in any entity that employs, any
person previously employed by Employer or any of its subsidiaries or affiliates
or (ii) in any way induce or attempt to induce any person to leave the
employment of Employer or any of its subsidiaries or affiliates.
(d) Nonsolicitation of Customers. Executive agrees that during the
Nonsolicitation Period, he will not directly or indirectly, solicit or do
business with, or be a Participant in any entity that solicits or does business
with, any customer of Employer or any of its subsidiaries or affiliates, nor
shall Executive in any way induce or attempt to induce any customer of Employer
or its subsidiaries or affiliates to do business with any person or entity other
than Employer or its subsidiaries or affiliates; provided however, that, the
foregoing shall not restrict Executive or any entity in which he is a
Participant from soliciting or doing business with any customer of Employer or
any of its subsidiaries or affiliates with respect to a business that is not
competitive with the business of Employer or any of its subsidiaries or
affiliates or any line of business that Employer or any of its subsidiaries or
affiliates is contemplating. Notwithstanding the foregoing, after the expiration
of the noncompetition period set forth in Paragraph 11(b), Executive may
participate as an investor in, an officer, employee, director or agent of or
consultant for an entity that does business with one or more customers of
Employer so long as Executive has no contact with such customer and has no
direct or indirect involvement in the solicitation of business from any such
customer.
(e) Standstill. Executive agrees that during the Nonsolicitation
Period, Executive shall not, except at the specific written request of the
Board:
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(i) engage in or propose, or be a Participant in any entity
that engages in or proposes, a Rule 13e-3 Transaction (as defined in Rule
l3e-3 under the Securities Exchange Act of 1934) or any other material
transaction, between ASC or any of its subsidiaries or affiliates, on the
one hand, and Executive or any entity in which Executive is a Participant,
on the other hand;
(ii) acquire any equity securities of ASC or any of its
subsidiaries or affiliates or be a Participant in any entity that acquires
any equity securities of ASC or any of its subsidiaries or affiliates,
provided however, that the foregoing shall not apply so long as Executive's
beneficial ownership of any class of ASC's securities does not exceed 5% of
the outstanding securities of such class;
(iii) solicit proxies, or be a Participant in any entity that
solicits proxies, or become a Participant in any solicitation of proxies,
with respect to the election of directors of ASC or any of its subsidiaries
or affiliates in opposition to the nominees recommended by the Board of any
such entity; or
(iv) directly or indirectly, engage in or participate in any
other activity that would be reasonably expected to result in a change of
control of ASC or any of its subsidiaries or affiliates.
The foregoing provisions of this Paragraph shall not be construed to prohibit or
restrict the manner in which Executive exercises his voting rights in respect of
any securities of ASC or any of its subsidiaries or affiliates acquired in a
manner that is not a violation of the terms of this Paragraph 11.
12. Nondisparagement. Executive will not at any time during or after
this Agreement directly (or through any other person or entity) make any public
or private statements (whether oral or in writing) which are derogatory or
damaging to Employer or any of its subsidiaries, businesses, activities,
operations, affairs, reputations or prospects or any of their respective
officers, employees, directors or shareholders. Employer will not at any time
during or after the term of this Agreement directly (or through any other person
or entity) make any defamatory public or private statements (whether oral or in
writing) concerning the Executive.
13. Representations of the Parties. Executive represents and warrants
to Employer and Holdings that Executive has the capacity to enter into this
Agreement and the other agreements referred to herein, and that the execution,
delivery and performance of this Agreement and such other agreements by
Executive will not violate any agreement, undertaking or covenant to which
Executive is party or is otherwise bound. Each of ASC and Group represents to
Executive that it is a corporation or limited liability company, as applicable,
duly organized and validly existing under the laws of the
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State of Delaware. Each of ASC and Group represents that it is fully authorized
and empowered by action of its Board, as applicable, to enter into this
Agreement and the other agreements referred to herein, and that performance of
its obligations under this Agreement and such other agreements will not violate
any agreement between it and any other person, firm or other entity.
14. Key Man Insurance. Employer will have the right throughout the
term of this Agreement, to obtain or increase insurance on Executive's life in
such amount as the Board determines, in the name of Employer and for its sole
benefit or otherwise, in the discretion of the Board. Executive will cooperate
in any and all necessary physical examinations without expense to Executive,
supply information, and sign documents, and otherwise cooperate fully with
Employer in connection with any such insurance. Executive warrants and
represents that, to his best knowledge, he is in good health and does not suffer
from any medical condition which might interfere with the timely performance of
his obligations under this Agreement.
15. Notices. All notices given under this Agreement shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) three business days after being mailed by first class certified
mail, return receipt requested, postage prepaid, (c) one business day after
being sent by a reputable overnight delivery service, postage or delivery
charges prepaid, or (d) on the date on which a facsimile is transmitted to the
parties at their respective addresses stated below. Any party may change its
address for notice and the address to which copies must be sent by giving notice
of the new addresses to the other parties in accordance with this Paragraph 15,
except that any such change of address notice shall not be effective unless and
until received.
If to Employer:
c/o American Seafoods Corporation
Market Place Tower
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxx
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Esq
If to the Executive, to his address set forth above:
16. Entire Agreement, Amendments, Waivers, Etc.
(a) No amendment or modification of this Agreement shall be effective
unless set forth in a writing signed by Employer and Executive. No waiver by
either party of any breach by the other party of any provision or condition of
this Agreement shall be deemed a waiver of any similar or dissimilar provision
or condition at the same or any prior or subsequent time. Any waiver must be in
writing and signed by the waiving party.
(b) This Agreement, together with the Schedules hereto and the
documents referred to herein and therein, sets forth the entire understanding
and agreement of the parties with respect to the subject matter hereof and
supersedes all prior oral and written understandings and agreements. There are
no representations, agreements, arrangements or understandings, oral or written,
among the parties relating to the subject matter hereof which are not expressly
set forth herein, and no party hereto has been induced to enter into this
Agreement, except by the agreements expressly contained herein. For the
avoidance of doubt, the Prior Employment Agreement is hereby superseded and
except to the extent expressly provided herein no party thereto shall have any
obligation thereunder.
(c) Nothing herein contained shall be construed so as to require the
commission of any act contrary to law, and wherever there is a conflict between
any provision of this Agreement and any present or future statute, law,
ordinance or regulation, the latter shall prevail, but in such event the
provision of this Agreement affected shall be curtailed and limited only to the
extent necessary to bring it within legal requirements.
(d) This Agreement shall inure to the benefit of and be enforceable
by Executive and his heirs, executors, administrators and legal representatives,
by Employer and its successors and assigns and by Holdings and its successors
and assigns. This Agreement and all rights hereunder are personal to Executive
and shall not be assignable. Each of Employer and Holdings may assign its rights
under this Agreement to any successor by merger, consolidation, purchase of all
or substantially all of its and its subsidiaries' assets, or otherwise; provided
that such successor assumes all of the liabilities, obligations and duties of
Employer under this Agreement, either contractually or as a matter of law.
(e) If any provision of this Agreement or the application thereof is
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held invalid, the invalidity shall not affect the other provisions or
application of this Agreement that can be given effect without the invalid
provisions or application, and to this end the provisions of this Agreement are
declared to be severable. It is expressly understood and agreed that although
Executive and Employer consider the restrictions contained in this Agreement to
be reasonable, if a final determination is made by an arbitrator to whom the
parties have assigned the matter or a court of competent jurisdiction that any
such restriction contained in this Agreement is an unenforceable restriction
against Executive, the provisions of this Agreement shall not be rendered void
but shall be reformed to apply as to such maximum time and to such maximum
extent as such arbitrator or court may determine or indicate to be enforceable.
Alternatively, if such arbitrator or court finds that any restriction contained
in this Agreement is unenforceable, and such restriction cannot be reformed so
as to make it enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to
principles of conflict of laws.
18. Right to Equitable Relief. Executive recognizes that Employer
will have no adequate remedy at law for his breach of any provision of Paragraph
10, 11 or 12 and in the event of any such breach or threatened breach he agrees
that Employer shall be entitled to obtain equitable relief in addition to other
remedies available at law and/or hereunder.
19. Taxes. All payments required to be made to Executive hereunder,
whether during the term of his employment hereunder or otherwise shall be
subject to all applicable federal, state and local tax withholding laws.
20. Headings, Etc. The headings set forth herein are included solely
for the purpose of identification and shall not be used for the purpose of
construing the meaning of the provisions of this Agreement. Unless otherwise
provided, references herein to Schedules and Paragraphs refer to Schedules
Paragraphs of this Agreement.
21. Arbitration. Subject to the provisions of Paragraph 9, any
dispute or controversy between Employer and Executive, arising out of or
relating to this Agreement, the breach of this Agreement, or otherwise, shall be
settled by arbitration in New York, New York, administered by the American
Arbitration Association in accordance with its Commercial Rules then in effect
and judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator shall have the authority to award
any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, the issuance of an injunction. However,
either party may, without inconsistency with this arbitration provision, apply
to any court having jurisdiction over such dispute or controversy and
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seek interim provisional, injunctive or other equitable relief until the
arbitration award is rendered or the controversy is otherwise resolved. Except
as necessary in court proceedings to enforce this arbitration provision or an
award rendered hereunder, or to obtain interim relief, neither a party nor an
arbitrator may disclose the existence, content or results of any arbitration
hereunder without the prior written consent of Employer and Executive.
22. Survival. Executive's obligations under the provisions of
Paragraphs 10, 11 and 12, as well as the provisions of Paragraphs 6, 7(b), 8(b)
and 15 through and including 19 and Paragraphs 21 and 22, shall survive the
termination or expiration of this Agreement.
23. Construction. Each party has cooperated in the drafting and
preparation of this Agreement. Therefore, in any construction to be made of this
Agreement, the same shall not be construed against any party on the basis that
the party was the drafter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYER:
AMERICAN SEAFOODS CORPORATION
By:
-------------------------------------
Name
Title:
AMERICAN SEAFOODS GROUP LLC
By:
-------------------------------------
Name
Title:
AMERICAN SEAFOODS INTERNATIONAL LLC
By:
-------------------------------------
Name
Title:
EXECUTIVE:
----------------------------------------
Xxxxxxx Xxxxx
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SCHEDULE I
BONUS CALCULATION
Subject to the terms and conditions of Paragraph 3(b) (including the
requirement that there shall have occurred no default under credit agreements
applicable to Employer or its affiliates), the nondiscretionary bonus described
in Paragraph 3(b) for any fiscal year shall be equal to (i) if EBITDA for such
fiscal year is less than 80% of Target EBITDA for such fiscal year, zero
dollars; (ii) if EBITDA for such fiscal year exceeds 120% of Target EBITDA for
such fiscal year, 150% of Executive's Base Salary for such fiscal year; and
(iii) if neither (i) nor (ii) applies, the product of 150% of Executive's Base
Salary during such fiscal year multiplied by a fraction, the numerator of which
is the amount by which EBITDA for such fiscal year exceeds 80% of Target EBITDA
for such fiscal year, and the denominator of which is 40% of Target EBITDA for
such fiscal year. Such bonus shall be determined by the Board in good faith on
the basis of the audited financial statements of Holdings and its subsidiaries.
For these purposes:
"EBITDA" means, for any period, the sum of the amounts for such period of
(i) net income (or loss) (excluding (I) interest income, (II) noncash income
items (other than ordinary accruals) and (III) extraordinary items), plus (ii)
to the extent deducted in determining consolidated net income, (x) interest
expense, (y) provisions for taxes based on net income and (z) depreciation and
amortization expense, each as determined for Holdings and its subsidiaries on a
consolidated basis in accordance with generally accepted accounting principals,
consistently applied, except that no effect shall be given to noncash gains and
losses on foreign exchange contracts. EBITDA for any period shall be determined
by the Board acting in good faith following receipt of audited financial
statements for the relevant period and shall reflect as expenses (determined on
an iterative basis if necessary) any bonuses payable in respect of such year.
"Target EBITDA" means, for any fiscal year, the amount set forth in the
table below opposite such fiscal year subject to adjustment on a pro forma
basis, if and to the extent determined appropriate by the Board, to reflect any
acquisitions or dispositions effected by Holdings or any of its subsidiaries
after the date hereof.
ANNUAL EBITDA TARGET
------------- -------------
EBITDA
FISCAL YEAR (in millions)
------------- -------------
2000 $ 88.6
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2001 $ 106.8
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2002 $ 109.9
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2003 $ 111.4
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2004 $ 116.4
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