Exhibit 10.12
EMPLOYMENT AGREEMENT
AGREEMENT made July 30, 2004 by and between Pro-Fac Cooperative, Inc. (the
"Company"), 00 Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 and Xxxxxxx X. Xxxxxx
("Xxxxxx"), whose address is 000 Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000.
WHEREAS, the Company desires to employ Xxxxxx to devote his special
experience, knowledge and abilities to the Company's business, and
WHEREAS, Xxxxxx desires to be so employed by the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
parties agree as follows:
1. Employment. The Company agrees to employ Xxxxxx and Xxxxxx agrees to
accept employment with the Company as its General Manager, Chief Financial
Officer, and Chief Executive Officer upon the terms and conditions established
by this Agreement.
2. Duties. During the term of this Agreement, Xxxxxx shall faithfully and
competently use his best efforts and business judgment, skill, knowledge and
energies to advance the Company's best interests and to perform managerial
duties as directed or requested by the Company's Board of Directors, provided
those duties are not inconsistent with the Company's Certificate of
Incorporation and By-Laws or prohibited by applicable law.
3. Extent of Services. During the term of this Agreement, Xxxxxx shall not
engage, directly or indirectly, alone or as a member of a partnership, or as an
officer, director, or shareholder of any other corporation, in any other
business activity whether or not such business activity is pursued for gain,
profit, or other pecuniary advantage, except as otherwise provided by this
Agreement or approved in writing by the Executive Committee of the Board of
Directors.
4. Term. Xxxxxx'x term of employment under this Agreement shall commence on
August 19, 2004, and shall continue for the period through and including August
19, 2006, unless earlier terminated pursuant to Paragraphs 5 or 6 of this
Agreement. If the Company, for any reason, does not offer in writing to extend
this Agreement or enter a new agreement with Xxxxxx by March 15, 2006, then this
Agreement shall terminate at the close of business on August 19, 2006.
5. Termination by Company.
a. Termination for Cause. The Company may terminate this Agreement and
Xxxxxx'x employment for the following reasons upon notice to Xxxxxx or his
designee or representative: (a) the death or disability of Xxxxxx, subject to
the provisions of paragraph 12; (b) a violation by Xxxxxx of paragraph 3 of this
Agreement (Extent of Services); (c) failing to meet written business standards
or goals and objectives set by the Executive Committee of the Board of Directors
after notice of such failure has been given to Xxxxxx and he has had a
reasonable time to correct such failure; (d) fraud, dishonesty,
misappropriation, insubordination, disloyalty, breach of fiduciary duty, or
conduct involving moral turpitude or the commission of a crime; (e)
consolidation or merger of the Company into or with another corporation; or (f)
dissolution of the Company or cessation of its business, subject to the
provisions of paragraph 8.
b. Termination Without Cause. (i) The Company may terminate this
Agreement and Xxxxxx'x employment without cause by giving Xxxxxx thirty (30)
days' notice of termination. If the Company terminates this Agreement without
cause, it shall continue Xxxxxx'x regular salary and health insurance benefits
for the remainder of the contract term. If the Company terminates this Agreement
without cause, then the Company, in its sole discretion, shall determine whether
to employ Xxxxxx and pay his regular compensation and benefits until the
expiration of the notice period.
(ii) Expiration or termination of this Agreement for any reason not
expressly defined in paragraph 5(a) (Termination for Cause) shall be considered
a termination without cause. On or before February 1, 2006, Pro-Fac and Xxxxxx
will discuss continuing employment options that would commence on August 19,
2006. Such considerations may include but are not limited to full time
employment, part time employment or a consultation agreement. By March 15, 2006
the parties are to agree to a continuing employment or consultation structure or
establish that Xxxxxx'x employment will be terminated on August 19, 2006.
Nothing in this paragraph shall be construed as limiting the Company's right to
terminate this Agreement and Xxxxxx'x employment without cause as set forth in
paragraph 5(b)(i) above.
(iii) In its discretion, the Company may pay Xxxxxx'x salary
continuation in a lump sum. Normal deductions for taxes, insurance, and other
items will be made from the salary continuation payments, salary and insurance
benefits. If the Company is not able to continue one or more insurance benefit
for any reason other than a discontinuation of that insurance benefit for all
employees, then it shall pay Xxxxxx an amount equal to the cost it would have
incurred to continue the insurance benefit for the remainder of the period
prescribed by this Agreement. Xxxxxx shall not accumulate sick leave, personal
leave, vacation, or other leave benefits during the period of continued salary
and insurance benefits.
6. Termination by Xxxxxx. Xxxxxx may terminate this Agreement by giving one
hundred eighty (180) days' notice of his intent to terminate.
7. Representation by Parties. The parties warrant to each other as follows:
(a) that each has the legal capacity and unrestricted right to execute and
deliver this Agreement and to perform all of their respective obligations
hereunder; and (b) that the execution and delivery of this Agreement and the
performance of the parties' obligations hereunder will not violate or be in
conflict with any fiduciary or other duty, instrument, agreement, document,
arrangement or other understanding to which either is a party or by which either
is or may be bound or subject.
8. Merger, Consolidation, or Dissolution of the Company. If the Company,
pursuant to paragraph 5(a), terminates this Agreement upon the dissolution of
the Company, or upon cessation of the Company's business, then the Company shall
have no future or continuing
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obligations to Xxxxxx under this Agreement other than payment of compensation
and benefits through August 19, 2006. Upon the merger or consolidation of the
Company, the Company shall have no future or continuing obligations to Xxxxxx
under this Agreement other than payment of compensation and benefits through
August 19, 2006.
9. Company Property. All records, files, lists, including computer
generated lists, drawings, documents, equipment and similar items relating to
the Company's business which Xxxxxx shall prepare or receive from the Company
shall remain the Company's sole and exclusive property. Upon termination of this
Agreement, Xxxxxx shall promptly return to the Company all property of the
Company in his possession or under his control. If, for whatever reason, Xxxxxx
is unable to return property of the Company that he believes to be in the
possession or control of a non-Company person or entity, he shall so inform the
Company of his inability to do so and advise the Company of the nature of the
property and its last known status.
10. Compensation. As full compensation for services rendered by Xxxxxx to
the Company, in whatever capacity rendered, the Company shall pay to Xxxxxx an
annualized salary of $125,000 in Xxxxxx'x first year of employment, and $130,000
in Xxxxxx'x second year of employment (United States funds) which shall be
payable in equal bi-weekly installments. Salary payments, however, shall be
subject to withholding for tax purposes and for other deductions required by
law.
11. Performance Evaluations/Salary Adjustments. The Executive Committee
shall review Xxxxxx'x performance: (a) informally by no later than February 28,
and (b) formally in writing by no later than August 19 of each year. The parties
recognize that there will be frequent informal opportunities to express praise
or concern about Xxxxxx'x performance, but agree that any serious concern or
criticisms should first be expressed to Xxxxxx in a timely and confidential
manner, so that appropriate efforts to examine and, if appropriate, correct the
problem or concern can be initiated. A failure by Xxxxxx to correct the problem
or concern to the Executive Committee's satisfaction shall be grounds for
termination with cause under paragraph 5(a) above.
12. Fringe and Other Employment Benefits. During the term of this Agreement
and as otherwise provided herein, Xxxxxx shall be entitled to participate in any
and all employee welfare and health benefit plans (including, but not limited
to, life insurance, health and medical, dental and disability plans) and other
employee benefit practices, policies, or plans, including but not limited to
qualified pension plans, established by the Company from time to time for the
benefit of its employees. Xxxxxx shall be required to comply with the conditions
attendant to coverage by such plans, policies, or practices and shall comply
with and be entitled to benefits only in accordance with the terms and
conditions of such plans, policies, or practices as they may be amended from
time to time.
Specifically, the Company agrees to provide Xxxxxx with a $300,000
term life insurance policy, short-term and long-term disability insurance,
personal accident insurance, and accidental death and dismemberment insurance on
terms mutually acceptable to the parties and at no expense to Xxxxxx. The
Company also agrees to establish or maintain a Section 401(k) savings plan or
similar instrument in which Xxxxxx is eligible to participate and to match
Xxxxxx'x annual contributions to that plan up to three (3) percent of his earned
compensation. (A
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schedule of the Company's current benefits is attached as Exhibit "A" and
incorporated in this Agreement by reference).
13. Death or Extended Disability. If Xxxxxx dies while employed by this
Agreement, the Agreement shall terminate immediately, but the Company shall pay
to Xxxxxx'x estate the compensation that otherwise would be payable to him
through the end of the third month after the month in which his death occurs. If
Xxxxxx is unable to perform his normal duties for the Company by reason of
mental or physical illness or incapacity, he shall be entitled to short and long
term disability benefits as provided pursuant to the Company's disability plans
in effect at such time and the Company agrees that Xxxxxx shall be entitled to
such applicable disability benefits regardless of the length of time of Xxxxxx'x
employment with the Company provided Xxxxxx meets all other requirements, if
any, for such benefits. If Xxxxxx receives short-term or short-term and
long-term disability benefits, the Company's obligation to pay Xxxxxx
compensation pursuant to paragraph 10 shall be suspended during the period in
which Xxxxxx receives either or both of those benefits. If Xxxxxx is unable to
perform his normal duties for the Company by reason of mental or physical
illness or incapacity for a continuous period of three (3) consecutive months,
or for a period aggregating four (4) months in any immediately preceding
consecutive twelve (12) month period, then the Company may terminate Xxxxxx'x
employment under this Agreement by notice to him or his personal representative.
If the Company terminates this Agreement for incapacity or illness, it shall
have no further obligations or liabilities to Xxxxxx under this Agreement other
than to pay him earned compensation and benefits and Xxxxxx shall only be
entitled to those disability benefits, if any, to which he is otherwise entitled
at the time of termination.
14. Expenses. The Company shall reimburse Xxxxxx for the reasonable
expenses necessarily incurred by him in the performance of his duties under this
Agreement upon presentation of a voucher indicating the amount and business
purposes of the expenses. To be reimbursable, such voucher must be submitted
within thirty (30) days after the expense is incurred by Xxxxxx.
15. Vacation. Xxxxxx shall be entitled each calendar year to vacation of
five (5) calendar weeks during which time his compensation shall be paid in
full, provided, however, that the scheduling of such vacation shall depend upon
and be subject to the demands and exigencies of the Company's business. There
shall be no rollover or accumulation of vacation from year to year and no payout
of unused vacation unless the vacation was scheduled by Xxxxxx but he was unable
to use it because of the demands and exigencies of the Company's business.
16. Notices. Any notice required or desired to be given under this
Agreement shall be in writing, shall be sent by certified mail, to the following
addresses, and shall be effective upon mailing:
To the Company:
Pro-Fac Cooperative, Inc.
X.X. Xxx 00000
Xxxxxxxxx, Xxx Xxxx 00000-0000
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To Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
17. Entire Agreement. The parties acknowledge that this Agreement
establishes the terms and conditions of the employment relationship between the
Company and Xxxxxx, that it represents the entire agreement of the parties, that
it supersedes all prior agreements and understandings between the parties
concerning the subject matter of this Agreement, and that it supersedes any
practices of the parties which are contrary to or inconsistent with its terms.
18. Waiver. The parties' failure to enforce any provision of this Agreement
or exercise any of their rights under this Agreement shall not constitute a
waiver of their right to enforce such provision or exercise such rights. A
waiver by one party of a breach of any provision of this Agreement by the other
party shall not operate or be construed as a waiver of any subsequent breach.
19. Assignment. Xxxxxx acknowledges that the services to be rendered by him
are unique and personal. Accordingly, Xxxxxx may not assign any of his rights or
delegate any of his duties or obligations under this Agreement.
20. Amendments. This Agreement may not be altered, modified, supplemented
or deleted, except by written amendment executed by the parties.
21. Severability. If any provision of this Agreement is held to violate
existing law, that provision shall not bind either of the parties, and the
remainder of the Agreement shall continue in full force and effect, provided
that striking the unlawful provision does not materially defeat the intent of
the parties underlying this Agreement.
22. Construction. This Agreement is being delivered and is intended to be
performed in the State of New York. The validity of this Agreement, its terms,
and the duties, obligations and rights it creates shall be governed by and
interpreted in accordance with the laws and decisions of the State of New York,
as applicable to contracts made and to be performed in that state.
23. Informed Consent. The parties state that they have had adequate
opportunity to review and to study the terms of this Agreement with counsel or
other persons and have decided knowingly and voluntarily to enter this
Agreement.
24. Indemnification. The Company agrees to indemnify and defend Xxxxxx
against any and all claims or liabilities asserted or assessed against him for
conduct, other than conduct that is grossly negligent or that amounts to willful
misconduct, that relates to the performance of his duties as Manger and Chief
Executive Officer. This duty shall survive the termination of Xxxxxx'x
employment and apply to claims or liabilities asserted or assessed against
Xxxxxx after his employment ends. The Company shall also provide, at its own
expense, Xxxxxx with
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coverage under a mutually acceptable Directors, Officers and Trustees Liability
Insurance Policy which shall protect Xxxxxx against claims or liabilities
asserted or assessed during his employment or after it ends.
25. Agreement Not to Compete or Solicit. Xxxxxx acknowledges that he is
employed in a fiduciary capacity and that he has access to confidential and
proprietary information. In consideration of the Xxxxxx'x employment with the
Company and of the salary and benefits of this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxxx agrees to abide by the following terms:
Xxxxxx agrees that during the term of the Xxxxxx'x employment and for
twelve (12) months after the date of the Xxxxxx'x separation from the Company,
except if that termination arises from a termination without cause, Xxxxxx will
not engage, directly or indirectly, in any business in competition with the
business of the Company or call upon or directly or indirectly solicit any
customer of the Company who was a customer on the date of the Xxxxxx'x
separation from employment for the purposes of soliciting providing such
customer with any products, services, or project information which are the same
as or similar to those provided by the Company in the continental United States.
Directly or indirectly engaging in the business of the Company includes engaging
in business as an owner, partner or agent, or as an employee of any person,
firm, corporation, or association engaged in the Company's business, or
consulting or volunteering to or investing in any corporation, partnership or
other entity so engaged, except that this shall not prohibit a passive
investment by Xxxxxx in such an entity which does not exceed 5% of the value of
the entity, or $50,000, whichever is less.
Xxxxxx agrees that for twelve (12) months after termination of
Xxxxxx'x employment that Xxxxxx will not, on behalf of himself or any other
person, firm, corporation, or association, solicit any of the employees of the
Company or any of its affiliates or subsidiaries nor xxxx Xxxxxx in any way,
directly or indirectly, for himself or on behalf of any other person, firm,
corporation, or association, solicit, divert, or take away any employees of the
Company, its affiliates or its subsidiaries.
Xxxxxx recognizes that great loss will be suffered if he should engage
in any business similar to that of the Company after he is separated from
employment, assist others in engaging or maintaining such a business, or solicit
customers or employees of the Company, and therefore Xxxxxx recognizes and
agrees that the covenants set forth in this Agreement are necessary for the
protection of the Company and are reasonable and fair in all respects.
If, at any time, a court of competent jurisdiction holds that any of
the restrictions contained in this Agreement are unenforceable under the
circumstances then existing, the parties agree that the maximum period, scope or
geographical area reasonable under the circumstances will be substituted for the
stated period, scope, or area as contained in this Agreement that was found to
be unenforceable, and then enforced as so modified.
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26. Miscellaneous Terms.
a. No Third Party Beneficiary. Except as specifically stated herein,
none of the provisions of this Agreement shall be for the benefit of, or
enforceable by, any person or entity not a party hereto.
b. Jurisdiction and Venue. In the event that any legal proceedings are
commenced in any court with respect to any matter arising under this Agreement,
the parties hereto specifically consent and agree that:
i. The courts of the State of New York and/or the United States
Federal Courts located in the State of New York shall have
exclusive jurisdiction over each of the parties hereto and
over the subject matter of any such proceedings; and
ii. The venue of any such action shall be in Monroe County, New
York and/or the United States District Court for the Western
District of New York.
c. Fair Meaning. This Agreement shall be construed according to its
fair meaning, the language used shall be deemed the language chosen by the
parties hereto to express their mutual intent, and no presumption or rule of
strict construction will be applied against any party hereto.
d. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of said
counterparts together shall constitute but one and the same instrument.
e. Further Assurances. The parties hereto shall execute and deliver
any and all additional writings, instruments and other documents and shall take
all such further actions as shall be reasonably required in order to effect the
terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date noted above.
PRO-FAC COOPERATIVE, INC.
By: /s/ Xxxxx R Call By: /s/ Xxxxxxx X. Xxxxxx
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