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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and between Colorado Prime
Corporation, a Delaware corporation (the "Company") and a wholly-owned
subsidiary of Colorado Prime Holdings Inc. ("CPH"), a Delaware corporation, CPH,
and Xxxxxxx XxXxxxxx ("Employee") is hereby entered into and effective as of the
9th day of May, 1997.
R E C I T A L S
The following statements are true and correct:
On this day the Company, CPH and certain other parties consummated a transaction
contemplated by the Merger Agreement dated as of March 25, 1997 (the "Merger
Agreement"), by and between Xxxxxx Equity Investors III, L.P. and the Company's
parent entity, KPC Holdings Corporation.
Employee is employed hereunder by CPH and the Company in a confidential
relationship wherein Employee, in the course of his employment with the Company,
has and will continue to become familiar with and aware of information as to the
Company's customers, specific manner of doing business, including the processes,
techniques and trade secrets utilized by the Company, and future plans with
respect thereto, all of which has been and will be established and maintained at
great expense to the Company; this information is a trade secret and constitutes
the valuable good will of the Company.
Therefore, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is hereby agreed as
follows:
A G R E E M E N T S
1. Employment and Duties.
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(a) The Company hereby employs Employee as Vice President for
Marketing, or such other comparable positions as shall be given to Employee by
the Company's Board of Directors (the "Board"). Employee shall have
responsibilities, duties and authority reasonably accorded to and expected of
such positions, including those set forth in the Company's by-laws and as
otherwise may be directed from time to time by the Board, it being understood
that such duties shall be reasonably comparable to those duties previously
performed by Employee for the Company. Employee hereby accepts this employment
upon the terms and conditions contained herein and agrees to devote his full
business time, attention and efforts to promote and further the business of the
Company.
(b) Employee faithfully shall adhere to, execute and fulfill all
policies established by the Company.
(c) Employee shall not, during the Term of his employment hereunder
(as defined in Section 5 hereof), be engaged in any other business activity
pursued for gain, profit or other pecuniary advantage if such activity
interferes with Employee's duties and responsibilities hereunder without the
prior consent of the Board. However, the foregoing limitations shall not be
construed as prohibiting Employee from making personal investments in such form
or manner as will neither require his services in the operation or affairs of
the companies or enterprises in which such investments are made nor violate the
terms of Section 3 hereof.
2. Compensation. For all services rendered by Employee in any capacity
required hereunder, the Company shall compensate Employee as follows:
(a) Base Salary. Effective on the date hereof through the end of the
Company's current fiscal year ending September 26, 1997, the base salary payable
to Employee shall be $195,000 per year, payable on a regular basis in accordance
with the Company's standard payroll procedures but not less frequently than
monthly. Such base salary shall, in the sole discretion of the Board, be subject
to an annual increase; provided that, at the beginning of the Company's
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fiscal year, Employee's base salary shall be adjusted to reflect any increase
during the prior fiscal year in the consumer price index for All Urban
Consumers, All Items for Xxx Xxxx-Xxxxxxxxx Xxx Xxxxxx-Xxxx Xxxxxx, XX-XX-XX
(0000-00 = 100), published by the United States Bureau of Labor Statistics.
(b) Incentive Bonus Plan. Not later than June 30, 1997, the Board will
develop a written Annual Incentive Bonus Plan (the "Incentive Bonus Plan")
setting forth the criteria under which Employee and other officers and key
employees will be eligible to receive year-end bonus awards based upon
individual performance and the achievement by the Company of the prior year
projections. The Incentive Bonus Plan will provide for Employee's bonus as set
forth in Schedule 1 hereto.
(c) Performance Based Bonus Plan. Except in the case of a termination
of this Agreement pursuant to Section 5(a) or 5(c), for a period of five years
following the consummation of the transactions contemplated in the Merger
Agreement, the Employee, along with the Company's Chief Executive Officer, Chief
Operating Officer, and Chief Financial Officer (collectively, the "Senior
Executive Officers"), shall participate in a performance based bonus plan (the
"Performance Bonus Plan") in which each of the Senior Executive Officers will
receive an aggregate of 25% of the excess EBIT (after Incentive Bonus Plan
bonuses are awarded) for each fiscal year above EBIT projected for such year in
the Xxxxxxx, Xxxxx & Co. Confidential Memorandum dated December 1996 (the
"Xxxxxxx, Sachs Memorandum") or another mutually agreed-upon alternative profit
target. The maximum aggregate amount that the Senior Executive Officers shall be
entitled to receive under the term of the Performance Bonus Plan shall be
$750,000. The Board shall develop and approve the Performance Bonus Plan no
later than June 30, 1997.
(d) Executive Perquisites, Benefits and Other Compensation. Employee
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
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(1) Payment of such premiums (or such portion thereof as is
provided by the Company's plans) for coverage for Employee and
his dependent family members under health, hospitalization,
disability, dental, life and other insurance plans that the
Company may have in effect from time to time. Benefits
provided to Employee under this clause (1) shall be at least
comparable to such benefits provided to the Company's Senior
Executive Officers immediately prior to the date of this
Agreement.
(2) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of
his services pursuant to this Agreement. All reimbursable
expenses shall be appropriately documented in reasonable
detail by Employee upon submission of any request for
reimbursement, and in a format and manner consistent with the
Company's expense reporting policy.
(3) Payment of an automobile allowance in an amount comparable to
such Employee's benefit prior to the consummation of the
Merger Agreement.
(4) Annual reimbursement in the fixed amount of $15,000 for
special medical expenses.
(5) The Company shall provide Employee with other executive
perquisites as may be available to or deemed appropriate for
Employee by the Board and shall allow Employee to participate
in all other Company-wide employee benefits, including the
Company's defined contribution pension plan and 401(k) Plan,
as may be made available generally to employees of either from
time to time. Such perquisites shall be at least comparable to
the Company's policies with respect thereto prior to the
consummation of the Merger Agreement.
3. Non-Competition Agreement.
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(a) Employee shall not, during the period of his employment by or with
the Company and for a two (2) year period following the termination of his
employment under Section 5(c) hereto, or for a one (1) year period following the
termination of his employment other than under Section 5(c) hereto, for any
reason whatsoever, for himself or on behalf of or in conjunction with any other
person, persons, company, partnership, corporation or business of whatever
nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, trustee, or in a managerial capacity, whether
as an employee, independent contractor, agent, consultant or advisor,
or as a sales representative, in any business selling any products or
services in direct competition with the Company;
(ii) call upon any person who is, at that time, an employee
of the Company in a managerial capacity for the purpose or with the
intent of enticing such employee away from or out of the employ of the
Company;
(iii) call upon any person or entity which is, at that
time, or which has been, within one year prior to that time, a
customer of the Company for the purpose of soliciting or selling
products or services in competition with the Company; or
(iv) call upon any prospective acquisition candidate, on
the Employee's own behalf or on behalf of any competitor of the
Company, which candidate was either called upon by the Company or for
which the Company made an acquisition analysis, for the purpose of
acquiring such entity.
For purposes of this Section and for purposes of Sections 5, 6, 7, 8
and 16, the term "Company" shall be deemed to include all direct and indirect
subsidiaries, and affiliates of the Company. Notwithstanding the above, the
foregoing covenant shall not be deemed to prohibit Employee from acquiring as an
investment not more than five percent (5%) of the capital stock of a competing
business, whose stock is
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publicly traded on a national securities exchange or on the over-the-counter
market.
(b) Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenant, and because of the
immediate and irreparable damage that could be caused to the Company for which
it would have no other adequate remedy, Employee agrees that the foregoing
covenant may be enforced by the Company in the event of breach by him, by
injunctions and restraining orders.
(c) It is agreed by the parties that the foregoing covenants in this
Section 3 impose a reasonable restraint on Employee in light of the activities
and business of the Company on the date of the execution of this Agreement and
the Company's current plans; but it is also the intent of the Company and
Employee that such covenants be construed and enforced in accordance with the
changing activities, business and locations of the Company throughout the term
of this covenant.
(d) The covenants in this Section 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant.
(e) All of the covenants in this Section 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of such covenants; provided, however, that the
Company's continued failure to make payments to Employee under Section 2 of this
Agreement shall constitute such a defense.
(f) Notwithstanding any of the foregoing, if any applicable law shall
reduce the time period during which Employee shall be prohibited from engaging
in any competitive activity described in Section 3(a) hereof, the period of time
for which Employee shall be prohibited pursuant to Section 3(a) hereof shall be
the maximum time permitted by law.
4. Place of Performance.
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(a) Employee understands that he may be requested by the Board to
relocate from his present residence to another geographic location in order to
more efficiently carry out his duties and responsibilities under this Agreement.
In such event, if Employee agrees to relocate, the Company shall pay all
reasonable relocation costs to move Employee, his immediate family and their
personal property and effects. Such costs may include, by way of example, but
are not limited to, pre-move visits to search for a new residence, investigate
schools or for other purposes; temporary lodging and living costs prior to
moving into a new permanent residence; duplicate home carrying costs; all
reasonable closing costs on the sale of Employee's present residence and on the
purchase of a comparable residence in the new location; and added income taxes
that Employee may incur if, but only to the extent that, any such relocation
costs are not deductible for tax purposes. The general intent of the foregoing
is that Employee shall not personally bear any out-of-pocket cost as a result of
the relocation, with an understanding that Employee shall use his best efforts
to incur only those costs which are reasonable and necessary to effect a smooth,
efficient and orderly relocation with minimal disruption to the business affairs
of the Company and the personal life of Employee and his family.
(b) Notwithstanding the above, if Employee is requested by the Board
to relocate and Employee refuses, such refusal shall not constitute "cause" for
termination of this Agreement under the terms of Section 5(c) and, if Employee
is terminated for such refusal, Employee shall be entitled to receive all
payments under this Agreement as if he were terminated by the Company without
cause.
5. Term; Termination; Rights on Termination. The term of this
Agreement shall begin on the date hereof and continue for one year (the "Initial
Term"), and, unless terminated as herein provided, shall be extended at the end
of the Initial Term and ongoing successive terms, for a period of one year on
the same terms and conditions contained herein (the "Term"), provided, however,
that with each successive Term, Employee's compensation shall be adjusted in
accordance with Section 2
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hereof. This Agreement and Employee's employment may be terminated in any one of
the followings ways:
(a) Death. The death of Employee shall immediately terminate the
Agreement with no severance compensation due to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical or
mental illness or injury, Employee shall have been absent from his full time
duties hereunder for four (4) consecutive months, then thirty (30) days after
written notice to the Employee (which notice may occur before or after the end
of such four (4) month period, but which shall not be effective earlier than the
last day of such four (4) month period), the Company may terminate Employee's
employment hereunder provided Employee is unable to resume his full-time duties
at the conclusion of such notice period. Also, Employee may terminate his
employment hereunder if his health should become impaired to an extent that
makes the continued performance of his duties hereunder hazardous to his
physical or mental health or his life, provided that Employee shall have
furnished the Company with a written statement from a qualified doctor to such
effect and provided, further, that, at the Company's request made within thirty
(30) days of the date of such written statement, Employee shall submit to an
examination by a doctor selected by the Company who is reasonably acceptable to
Employee or Employee's doctor and such doctor shall have concurred in the
conclusion of Employee's doctor. In the event this Agreement is terminated as a
result of Employee's disability, Employee shall receive from the Company the
base salary at the rate then in effect for a period of eight (8) months from the
date of such termination (the "Disability Period"); provided that, such amounts
shall be offset by any amounts otherwise paid to the Employee under any
disability program then maintained by the Company. During the Disability Period,
Employee shall also receive all benefits to which Employee would otherwise be
entitled. In addition, earned but unpaid base salary as of the date of such
termination shall be paid in full and any bonus award to which the Employee
would have been entitled under the Incentive Bonus Plan had he been employed
throughout the year in which such bonus is calculated shall be payable on
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a prorated basis for the year in which such termination occurs only.
(c) Good Cause. The Company may terminate the Agreement immediately
upon written notice to Employee for good cause, which shall be: (1) Employee's
willful misconduct or gross negligence in the performance or intentional
nonperformance (continuing for ten (10) days after receipt of written notice of
need to cure) of any of Employee's material duties and responsibilities
hereunder; (2) Employee's willful dishonesty, fraud, alcohol or illegal drug
abuse, or misconduct with respect to the business or affairs of the Company,
which materially and adversely affects the operations, prospects or reputation
of the Company; or (3) Employee's conviction of a felony or other crime
involving moral turpitude. In the event of a termination for good cause, as
enumerated above, Employee shall have no right to any severance compensation.
(d) Without Cause. At any time after the commencement of employment,
the Company may, without cause, terminate this Agreement and Employee's
employment, effective thirty (30) days after written notice is provided to the
Employee. Should Employee be terminated by the Company without cause, or if this
Agreement is not renewed pursuant to Section 5 hereof, Employee shall receive
from the Company the base salary at the rate then in effect for one year from
the date Employee's employment is terminated, payable over such time period, and
any other benefits to which Employee would otherwise be entitled. If Employee
resigns or otherwise terminates his employment for any reason other than Good
Reason as defined in Section 5(e), Employee shall receive no severance
compensation.
(e) Termination by Employee for Good Reason. The Employee may
terminate his employment hereunder for "Good Reason." As used herein, "Good
Reason" shall mean the continuance of any of the following after ten (10) days
prior written notice by Employee to the Company and to CPH, specifying the basis
for such Employee's having Good Reason to terminate this Agreement:
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(i) a material adverse change in Employee's status, title,
position or responsibilities;
(ii) the assignment to Employee of any duties materially
and adversely inconsistent with the Employee's position as specified
in Section 1 hereof (or such other position to which he may be
promoted), including status, offices, responsibilities or persons to
whom the Employee reports as contemplated under Section 1 of this
Agreement, or any other action by the Company which results in a
material and adverse change in such position, status, offices, titles
or responsibilities;
(iii) Employee's removal from, or failure to be reappointed
or reelected to, Employee's position under this Agreement, except as
contemplated by Sections 5(a), (b) and (c); or
(iv) any other material breach of this Agreement by the
Company, including the regular failure to pay Employee on a timely
basis the amounts to which he is entitled under this Agreement.
In the event of any termination by the Employee for Good Reason, Employee shall
be entitled to receive from the Company the base salary at the rate then in
effect for one year from the date Employee's employment is terminated, payable
over such time period, and any other benefits to which Employee would otherwise
be entitled.
(f) Payment Through Termination. Upon termination of this Agreement
for any reason provided above, Employee shall be entitled to receive all
compensation earned and all benefits and reimbursements (including payments for
accrued vacation and sick leave) due through the effective date of termination.
Additional compensation subsequent to termination, if any, shall be due and
payable to Employee only to the extent and in the manner expressly provided
above. All other rights and obligations under this Agreement shall cease as of
the effective date of termination, except that the Company's obligations under
Section 9 herein and Employee's
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obligations under Sections 3, 6, 7, 8 and 10 herein shall survive such
termination in accordance with their terms.
6. Inventions. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by Employee,
solely or jointly with another, during the period of employment and which are
directly related to the business or activities of the Company and which Employee
conceives as a result of his employment by the Company. Employee hereby assigns
and agrees to assign all his interests therein to the Company or its nominee.
Employee agrees that all such materials which he develops or conceives and/or
documents during such period shall be deemed works made-for-hire for the Company
within the meaning of the copyright laws of the United States or any similar or
analogous law or statute of any other jurisdiction and accordingly, the Company
shall be the sole and exclusive owner for all purposes for the distribution,
exhibition, advertising and exploitation of such materials or any part of them
in all media and by all means now known or which may hereafter be devised,
throughout the universe in perpetuity. Employee agrees that in furtherance of
the foregoing, he shall disclose, deliver and assign to the Company all such
conceptions, ideas, improvements and discoveries and shall execute all such
documents, including patent and copyright applications, as the Company
reasonably shall deem necessary to further document the Company's ownership
rights therein and to provide the Company the full and complete benefit thereof.
Should any arbitrator or court of competent jurisdiction ever hold that the
materials derived from Employee's contributions to the Company do not constitute
works made-for-hire, Employee hereby irrevocably assigns to the Company, and
agrees that the Company shall be the sole and exclusive owner of, all right,
title and interest in and to all such materials, including the copyrights and
any other proprietary rights arising therefrom. Employee reserves no rights with
respect to any such materials, and hereby acknowledges the adequacy and
sufficiency of the compensation paid and to be paid by the Company to Employee
for the materials and the contributions he will make to the development of any
such information or materials. Employee
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agrees to cooperate with all lawful efforts of the Company to protect the
Company's rights in and to any or all of such information and materials and will
at the request of the Company execute any and all instruments or documents
necessary or desirable in order to register, establish, acquire, prosecute,
maintain, perfect or defend the Company's rights in and to such information
materials.
7. Confidential Information and Trade Secrets. Employee acknowledges
and agrees that all Confidential Information, Trade Secrets and other property
delivered to or compiled by Employee by or on behalf of the Company or its
representatives, vendors or customers which pertain to the business of the
Company shall be and remain the property of the Company and be subject at all
times to its discretion and control. Employee agrees that he shall maintain
strictly the confidentiality of, and shall not, during or after the term of this
Agreement with the Company, disclose, any such Confidential Information or Trade
Secrets.
For purposes hereof, the parties agree that "Confidential Information"
means and includes
- All business or financial information, plans,
processes and strategies, market research and
analyses, projections, financing arrangements,
consulting and sales methods and techniques,
expansion plans, forecasts and forecast
assumptions, business practices, operations and
procedures, marketing and merchandising
information, distribution techniques, customer
information and other business information,
including records, designs, patents, business
plans, financial statements, manuals, memoranda,
lists and other documentation respecting the
Company;
- All information and materials which are
proprietary and confidential to a third party and
which have been provided to the Company by such
third party for the Company's use; and
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- All information derived from such Confidential
Information.
Confidential Information shall not include information and materials
that are already, or otherwise become, known by or generally available
to the public without restriction on disclosure, other than as a
result of an act or omission by the Employee in breach of the
provisions of this Agreement or any other applicable agreement between
the Employee and the Company.
For purposes hereof, the term "Trade Secret" shall have the
meaning given in the Delaware enactment of the Uniform Trade Secrets
Act, and shall include, without limitation, the whole or any portion
or phase of any scientific or technical information, design, process,
formula, concept, data organization, manual, other system
documentation, or any improvement of any thereof, in any case that is
valuable and secret (in the sense that it is not generally known to
the Company's competitors).
8. Return Of Company Property; Termination of Employment. At such
time, if ever, as Employee's employment with the Company is terminated, he shall
be required to participate in an exit interview for the purpose of assuring a
proper termination of his employment and his obligations hereunder. On or before
the actual date of such termination, Employee shall return to the Company all
records, materials and other physical objects relating to his employment with
the Company, including, without limitation, all Company credit cards and access
keys and all materials relating to, containing or derived from any Trade Secrets
or Confidential Information.
9. Indemnification. If Employee is made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by the Company against
Employee), by reason of the fact that he is or was performing services under
this Agreement or as an officer or director of the Company (and whether or not
the basis of such action is the Employee's action in such official capacity),
then the Company shall
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indemnify Employee against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, as actually and reasonably incurred by
Employee in connection therewith to the fullest extent permitted by applicable
law, and such indemnification shall continue as to Employee even if he has
ceased to be an employee, officer or director of the Company and shall inure to
the benefit of his heirs and estate. The Company shall advance to Employee all
reasonable costs and expenses directly related to the defense of such action,
suit or proceeding within twenty days after written request therefore by the
Employee to the Company, provided that such request shall include an undertaking
by the Employee to repay such advances if it shall ultimately be determined that
Employee is or was not entitled to be indemnified by the Company against such
costs and expenses. If both Employee and the Company are made a party to the
same third-party action, complaint, suit or proceeding, the Company agrees to
engage competent legal representation, and Employee agrees to use the same
representation, provided that if counsel selected by the Company shall have a
conflict of interest that prevents such counsel from representing Employee,
Employee may engage separate counsel and the Company shall pay all attorneys'
fees of such separate counsel. Further, while Employee is expected at all times
to use his best efforts to faithfully discharge his duties under this Agreement,
Employee cannot be held liable to the Company for errors or omissions made in
good faith where Employee has not exhibited gross, willful or wanton negligence
or misconduct or performed criminal or fraudulent acts which materially damage
the business of the Company. The provisions of this Section 9 are in addition
to, and not in derogation of, the indemnification provisions of the Company's
By-laws.
10. No Prior Agreements. Employee hereby represents and warrants to
the Company that the execution of this Agreement by Employee and his employment
by the Company and the performance of his duties hereunder will not violate or
be a breach of any agreement with a former employer, client or any other person
or entity. Further, Employee agrees to indemnify the Company for, and hold the
Company harmless from and against, all claims, including, but not limited to,
attorneys' fees and expenses of investigation, by any such
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third party that such third party may now have or may hereafter come to have
against the Company based upon or arising out of any noncompetition agreement,
invention or secrecy agreement between Employee and such third party which was
in existence as of the date of this Agreement.
11. Binding Effect; Assignment. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns. Employee
understands that he has been selected for employment by the Company on the basis
of his personal qualifications, experience and skills. Employee agrees,
therefore, that he cannot assign all or any portion of his performance under
this Agreement.
12. Complete Agreement. This Agreement is not a promise of future
employment. Employee has no oral representations, understandings or agreements
with the Company or any of its officers, directors or representatives covering
the same subject matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement between the
Company and Employee and of all the terms of this Agreement, and it cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
oral or written agreements.
13. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: Colorado Prime Corporation
0 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, X.X. 00000
Attention: Secretary
to CPH: Colorado Prime Holdings Inc.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: V. Xxxxx Xxxxxx
To Employee: Xxxxxxx XxXxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
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Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received, if earlier.
Either party may change the address for notice by notifying the other party of
such change in accordance with this Section 13.
14. Severability; Headings. It is the intention of the parties that
the provisions herein shall be enforceable to the fullest extent permitted under
applicable law, and that the unenforceability of any the provision or provisions
hereof, or any portion thereof, shall not render unenforceable or otherwise
impair any other provisions or portions thereof. If any provision of this
Agreement is determined by a court of competent jurisdiction to be
unenforceable, void or invalid in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending provisions or
portions thereof and to alter the bounds thereof, including specifically, any
time, place and manner restrictions contained in any of the restrictive
covenants contained herein, in order to render it valid and enforceable. In any
event, the balance of this Agreement shall be enforced to the fullest extent
possible without regard to such unenforceable, void or invalid provisions or
part thereof. The Section headings herein are for reference purposes only and
are not intended in any way to describe, interpret, define or limit the extent
or intent of the Agreement or of any part hereof.
15. Company Actions. Employee acknowledges that in any action by the
Company to enforce the provisions of Sections 3, 6, 7 or 8 of this Agreement,
claims asserted by Employee against the Company arising out of his employment
with the Company or otherwise shall not constitute a defense to enforcement of
his obligations hereunder; provided, however, that the Company's continued
failure to make payments to Employee under Section 2 of this Agreement shall
constitute such a defense.
16. Arbitration. Any unresolved dispute or controversy arising under
or in connection with this Agreement (excluding
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specifically, however, claims and counterclaims of the Company arising out of
any breach by Employee of the provisions of Sections 3, 7 or 8 hereof) shall be
settled exclusively by arbitration, conducted in accordance with the rules of
the American Arbitration Association then in effect, as modified hereby.
Notwithstanding anything contained in the rules to the contrary, however, the
arbitrators shall not have the authority to add to, detract from, or modify any
provision hereof nor to award punitive or special damages to any injured party.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The arbitration proceeding shall be held in New York, New York.
17. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of New York without reference to its
conflicts of laws provisions.
18. Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered (which deliveries may be
by telefax) by the parties. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
20. Modifications. This Agreement may not be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge or
termination is sought, or his or its duly authorized representative or officer.
No waiver by Employee or the Company of any breach of any provision hereof will
be deemed a waiver of any prior or subsequent breach of the same or any other
provision. The failure of Employee or the Company to exercise any right provided
herein will not be deemed on any subsequent occasions to be a waiver of any
right granted hereunder to either of them
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21. EMPLOYEE ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE WAS
GIVEN AN OPPORTUNITY TO READ IT, CAREFULLY EVALUATE IT, AND ASK ANY QUESTIONS HE
MAY HAVE HAD REGARDING IT OR ITS PROVISIONS. EMPLOYEE ALSO ACKNOWLEDGES THAT HE
HAD THE RIGHT TO HAVE THIS AGREEMENT REVIEWED BY AN ATTORNEY OF HIS CHOOSING AND
THAT THE COMPANY GAVE HIM A REASONABLE PERIOD OF TIME TO DO SO IF HE SO WISHED.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COLORADO PRIME CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Title: Chief Financial Officer
COLORADO PRIME HOLDINGS INC.
By: /s/ V. Xxxxx Xxxxxx
-------------------------------
Title: Treasurer
EMPLOYEE:
/s/ Xxxxxxx XxXxxxxx
----------------------------------
Xxxxxxx XxXxxxxx
- 19 -
20
SCHEDULE 1
% OF SALARY
% Operating Income --------------------------------------------------------
Before Bonus Operating Profit Annual
Accomplished Before Bonus Objectives % Volume* Total
================================================================================
80 or lower 0 0 0 0
85 5.66 5.66 5.66 17
90 11.3 11.3 11.3 34
95 14 14 14 42
100 16.67 16.67 16.67 50
105 20.67 20.67 20.67 62
110 25 25 25 75
115 29.33 29.33 29.33 88
120+ 33.3 33.3 33.3 100
================================================================================
* Volume standards are per attached.
21
EXHIBIT A
[DEFINITION OF OPERATING INCOME]
