Exhibit 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made and entered into as of
the 28/th/ day of January 2000, among AMERICAN SEAFOODS, L.P. ("Parent") and
AMERICAN SEAFOODS GROUP LLC ("Employer" or the "Company") and XXXXXXX XXXXX who
resides at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 ("Executive").
WITNESSETH:
WHEREAS, Employer desires to employ Executive and Executive desires to
accept employment with Employer upon the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, and intending to be legally bound hereby, it is
hereby agreed as follows:
1. Employment Term. Employer agrees to employ Executive, and
Executive agrees to be so employed, in the capacity of President and Chief
Operating Officer, for a term commencing on the date hereof and ending on the
fifth anniversary of the date hereof (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 Section 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 President and Chief Operating Officer of Employer, 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 or similar governing body of Employer (the "Board") or its designees,
and Executive shall report to the Chairman of the Board of American Seafoods
Group LLC. 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. In January 2001 and annually
thereafter, the Board shall review Executive's base salary in light of the
performance of Executive and the Company, 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 bonus if the EBITDA (as defined on
Schedule I hereto) of Parent 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 the Company 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 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 Parent and its subsidiaries for the pertinent year.
(c) Equity Investment by Executive. Concurrently with the signing
of this Agreement, Executive is purchasing, pursuant to a subscription
agreement, dated as of the date hereof, between Executive and Parent, 11,600
Regular Units in Parent and 4,600 Special Units in Parent for an aggregate
purchase price of $1,160,000. Executive's purchase of such partnership units is
being funded in part by a loan in the amount of $810,000 from Parent to
Executive pursuant to the terms and conditions of the loan documentation
attached as Exhibit A hereto.
(d) Option Grants.
(i) Concurrently with the signing of this Agreement, Company shall
grant Executive non-qualified options to purchase 22,500 Regular Units in
Parent, at a per unit price equal to $100.
(ii) The grant of 22,500 options pursuant to this Paragraph 3(d)
shall be comprised of 6,000 Series A Options, 6,000 Series B Options,
6,000 Series C Options and 4,500 Series D Options. All such options shall
be subject to the terms and conditions set forth in the Option Agreements
applicable to such Series, forms of which are attached hereto as Exhibits
X-x, X-0, X-0 and B-4 and the American Seafoods L.P. Year 2000 Unit
Option Plan referred to therein.
(e) Relocation Expenses. Employer shall reimburse Executive for
the following expenses that may be incurred in relocating Executive's residence
from Marco Island, Florida to the Seattle metropolitan area; provided that
Executive will not incur relocation expenses in excess of $25,000 without
obtaining the consent of Employer, such consent not to be unreasonably withheld:
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(i) during the period commencing on Executive's acceptance hereof
and ending on the earlier of September 30, 2000 or the date 30 days after
Executive purchases a new principal residence, the reasonable cost for
round-trip airfare, hotel accommodations and related miscellaneous
out-of-pocket expenses incurred by Executive and his spouse in connection
with locating a temporary and/or permanent residence in the Seattle
metropolitan area;
(ii) during the period commencing on Executive's acceptance hereof
and ending on the earlier of July 31, 2000 or the date 30 days after
Executive purchases a new principal residence, the reasonable cost of
establishing and maintaining a temporary residence in the Seattle
metropolitan area; and
(iii) the reasonable cost of transporting Executive's and his
immediate family's household goods to the Seattle area.
The Company shall pay Executive the foregoing amounts promptly following his
submission to the Company of receipts or other documentation thereof. Executive
shall be entitled to receive an additional payment in an amount such that after
payment by Executive of all income taxes payable on the relocation expenses
provided for in this Paragraph 3(e) (inclusive of the payment provided for in
this sentence), Executive retains an amount equal to his actual out-of-pocket
relocation expenses.
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.
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7. Termination by the Company.
(a) Employer shall have the right to terminate the Employment
Term under the following circumstances (and also as contemplated by Section
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).
"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 the Company 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 the Company or any of its
subsidiaries; (v) Executive's material breach of this Agreement or of a
material Company policy (including without limitation, disclosure or misuse of
any confidential or competitively sensitive information or trade secrets of the
Company 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 date of
termination. In addition, if the 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 Section
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:
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(i) the Company'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
(ii) the failure to continue Executive in his position as provided
in Paragraph 1 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 Section 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 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 the Company 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 Section 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 though the date of termination.
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
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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), the Company 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, the
Company 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 Company'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 affiliates. Any confidential and/or proprietary information of
Employer or its affiliates 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 serving on
the Boards of Directors of other corporations (subject to the approval of the
Board which shall not be unreasonably withheld), from engaging in charitable and
public service activities, or engaging in speaking and writing activities, or
from managing his personal investments, provided 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
(except if Executive's employment is terminated for Cause or Executive
terminates his employment without Good Reason, in which case such 12-month
period shall be extended to a 24-month period), 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
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competitive with that of Employer or any of its subsidiaries, or any line of
business which Employer or any of its subsidiaries 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, employ, or be a Participant in any entity that employs, any person
previously employed by the Company or any of its subsidiaries or in any way
induce or attempt to induce any person to leave the employment of the Company or
any of its subsidiaries.
(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, nor shall Executive
in any way induce or attempt to induce any customer of Employer to do business
with any person or entity other than Employer; provided 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 with respect to a business that is not competitive with the
business of Employer or any of its subsidiaries or any line of business that
Employer or any of its subsidiaries is contemplating. Notwithstanding the
foregoing, after the expiration of the noncompetition period set forth in
Paragraph 1l(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:
(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 13e-3
under the Securities Exchange Act of 1934) or any other material
transaction, between Parent, Employer or any of its subsidiaries, 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 Parent, Employer or any of
its subsidiaries (other than partnership units issued to Executive by
Parent or issued to Executive by Parent upon exercise of options issued to
Executive by Parent), or be a participant in any entity that acquires any
equity securities of Parent, Employer or any of its subsidiaries;
(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
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directors of Parent, Employer or any of its subsidiaries 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 Parent, Employer or any of its subsidiaries.
The foregoing provisions of this Paragraph shall not be construed to prohibit
or restrict the manner in which Executives exercises his voting rights in
respect of partnership units in Parent 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 the Company, its business, activities, operations, affairs,
reputation or prospects or any of its 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. Representation of the Parties. Executive represents and warrants
to Employer and Parent 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 Employer and Parent represents
to Executive that it is a limited liability company or limited partnership, as
applicable, and is duly organized and validly existing under the laws of the
State of Delaware, that it is fully authorized and empowered by action of its
Board or general partner, 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. Each of Employer and Centre Partners Management
LLC or its affiliates (collectively, "Centre Partners") 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 or Centre Partners (as applicable)
determines, in the name of Employer or Centre Partners, as the case may be, and
for its sole benefit or otherwise, in the discretion of the Board or Centre
Partners (as applicable). Executive will cooperate in any and all necessary
physical examinations without expense to Executive, supply information, and sign
documents, and otherwise cooperate fully with each of Employer and Centre
Partners as Employer or Centre Partners (as applicable) may request 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
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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 the Employer or Parent:
c/o Centre Partners Management LLC
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-332-5801
Attention: Xxxxx Xxxxxxxxx
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Executive:
Mr. Xxxxxxx Xxxxx
X.X. Xxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
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 the Company 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 Exhibits and 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.
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(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 the Company and its successors and assigns, by Parent and
its successors and assigns and, with respect to Xxxxxxxxx 00, Xxxxxx Partners
and its successors and assigns. This Agreement and all rights hereunder are
personal to Executive and shall not be assignable. Each of the Company and
Parent 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 the Company under this Agreement, either
contractually or as a matter of law.
(e) If any provision of this Agreement or the application thereof
is 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.
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 Exhibits, Schedules and Paragraphs refer to
Exhibits and Schedules to and Paragraphs of this Agreement.
21. Attorney's Fees and Costs. Employer agrees to pay the reasonable
costs and expenses of one firm of counsel with respect to its representation of
Executive in connection with the negotiation of this Agreement and the
agreements and arrangements referred to herein, up to a maximum of $7,500
(including related costs and disbursements), upon presentation of reasonable
documentation thereof.
22. Arbitration. 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
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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 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.
23. 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 22 and 23, shall survive the
termination or expiration of this Agreement.
24. 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 GROUP LLC
By /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
EXECUTIVE
/s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
AMERICAN SEAFOODS:
AMERICAN SEAFOODS, L.P.
By: ASC Management, Inc., its General
Partner
By /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: President
SCHEDULE I
BONUS CALCULATION
Subject to the terms and conditions of Section 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 Section 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 statement of Parent 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 the Partnership 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.
ANNUAL EBITDA TARGET
------------------------------------
FISCAL YEAR EBITDA
(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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