AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
---------------------
THIS AGREEMENT is dated as of December 28, 2002, between TASTY BAKING
COMPANY, a Pennsylvania corporation (the "Company"), and XXXX X. XXXXXXX
("Executive").
W I T N E S S E T H
WHEREAS, Executive has served as Executive Vice President and Chief
Financial Officer of the Company and, as such, has made and is currently making
a significant contribution to the Company's business; and
WHEREAS, in anticipation of the Executive's retirement, the Board of
Directors of the Company (the "Board") desires to appoint a new Chief Financial
Officer; and
WHEREAS, the Board believes that the continued services of Executive as
an employee will be of great value and importance to the Company and is desirous
of ensuring the continuation of Executive's services for a period of years to
contribute to a smooth transition of duties to the new Chief Financial Officer,
and to perform such other tasks as the Board may deem appropriate; and
WHEREAS, Executive and the Company are currently obligated under a
certain Employment Agreement dated as of July 1, 1988; and
WHEREAS, Executive and the Company are willing to enter into an amended
and restated employment agreement upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and of the mutual benefits herein provided, and intending to be
legally bound hereby, the Company and Executive hereby agree as follows:
Section 1. Term of Employment. The Company hereby employs Executive as
Executive Vice President and Chief Financial Officer, and Executive accepts such
employment by the Company in each case, on the terms and conditions herein
contained and subject to termination only as hereinafter provided (the period
from the date hereof through termination of this Agreement as hereinafter
provided is referred to as the "Employment Period"). Executive acknowledges and
agrees that he shall retain the title and responsibilities of Chief Financial
Officer only until such time as the newly elected Chief Financial Officer takes
office and assumes his responsibilities. Thereafter, Executive will retain the
title of "Executive Vice President."
Section 2. Duties. During the Employment Period, Executive shall have
such duties, responsibility and authority and perform such services for the
Company as are consistent with Executive's background, training and experience
as may from time to time be assigned to Executive by the Board. After the
appointment of the new Chief Financial Officer, Executive's duties shall include
assisting in the smooth transition of management responsibilities to the new
Chief Financial Officer.
Section 3. Compensation.
(a) Commencing on December 29, 2002 and thereafter during the
Employment Period, the Company shall pay Executive a base salary at the annual
rate of $223,000.00, which amount may be increased from time to time in
accordance with the Company's existing policy regarding general increases at the
discretion of the Board. Payment shall be made in accordance with the Company's
regular practice for Senior Executive employees as in effect from time to time.
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(b) In addition to Executive's base salary, as increased from
time to time, Executive shall be entitled to participate in the normal course of
business in the annual Management Incentive Bonus Plan of the Company and to
receive such bonus payments as are customarily granted for the purpose of
providing additional compensation to Senior Executives.
Section 4. Additional Terms.
(a) The Company will reimburse Executive for all reasonable
expenses properly incurred by Executive in the performance of Executive's duties
hereunder in accordance with policies established for Senior Executives of the
Company from time to time by the Board.
(b) During the Employment Period, Executive shall be entitled
to participate, in accord with the terms thereof, in any present or future
bonus, insurance, pension, SERP, Thrift, ESOP, stock option (whether incentive
or non-qualified) or other employee benefit, compensation or incentive plan
adopted by the Company for Senior Executives generally.
(c) During the Employment Period, the Company shall provide
Executive with the exclusive use of the automobile (and bear all costs of fuel,
maintenance, repairs and insurance thereon) as heretofore provided to Executive
by the Company for Executive's use, or a replacement automobile of similar
prestige and appointments.
(d) Commencing July 1, 2004, Executive shall be entitled to
receive the benefit of the Company's wind down policy for management, set forth
in the Personnel Retirement Procedure in the Company's Policy-Procedure Manual,
whether or not such policy is then in effect.
Section 5.Termination of Employment Period.
(a) The Employment Period and the Executive's employment by
the Company shall cease and terminate upon the earliest to occur of the events
specified below:
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(i) December 31, 2004.
(ii) The death of Executive. If Executive dies during
the term of this Agreement,Executive's salary through the end of the month in
which death occurs shall be paid to Executive's estate.
(iii) The Executive's election of early retirement
prior to the date applicable under Section 5(a)(i) for termination.
(iv) Termination of Executive's employment for
Cause. For these purposes "Cause" for termination of Executive shall be limited
to actions by Executive involving willful malfeasance or gross negligence or
failure to act by Executive involving willful and material nonfeasance which, at
the time of such willful malfeasance or gross negligence or willful and material
nonfeasance, would tend to have a material adverse effect on the Company.
(b) In the event that Executive becomes "totally disabled"
within the meaning of the Company's Long Term Disability Plan, the Employment
Period shall be suspended (to resume following suspension unless otherwise
terminated) during any period in which Executive is entitled to receive long
term disability payments under such plan and, during such period of suspension,
Executive shall not be entitled to any compensation under Section 3 hereof, but
shall be entitled to the same benefits that any other employee of the Company
would enjoy under the Long Term Disability Plan; provided however, in no event
shall the Employment Period or suspension thereof extend beyond the period set
forth in Section 5(a)(i) above.
(c) Except as otherwise expressly provided herein, this
Agreement and all of the liabilities and obligations of the parties hereunder
shall cease and terminate effective upon the termination of the Employment
Period.
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(d) If (i) Executive's employment hereunder is terminated by
the Company other than pursuant to Section 5(a) hereof, (ii) Executive
terminates his employment hereunder because his authority, duties or
responsibilities are altered so as to be inconsistent with the provisions of
Section 2 hereof and Executive's background, training and experience, or (iii)
Executive terminates his employment hereunder because of the Company's continued
failure to perform its duties hereunder in any material respect, which failure
has not been cured within 20 days after notice of such failure has been given by
Executive to Company, then the Executive shall be entitled to receive, in lieu
of all other damages to which Executive may otherwise be entitled as a direct or
indirect result of the termination of Executive's employment in breach of the
terms hereof, (A) the compensation which would otherwise have been payable to
Executive under Section 3 hereof through December 31, 2004 which would have
pertained, (B) health and life insurance coverages provided by the Company from
time-to-time to Senior Executives of the Company at the cost of the Company
through December 31, 2004, and (C) supplemental retirement benefits under the
Executive's Supplemental Executive Retirement Plan Agreement as modified by the
provisions set forth on Exhibit A hereto which modifications shall automatically
take effect upon Executive's execution and delivery to the Company of a release
in the form attached as Exhibit B hereto (provided such release is executed and
delivered within 45 days after the effective date of the termination of his
employment) and such release having become effective under all applicable laws
after the revocation period set forth in paragraph (iv) of such release. In the
event that Executive fails to execute and deliver the release in a timely
fashion, or such release shall not have become effective under all applicable
laws, then Executive shall not be entitled to the benefits under clause (C) of
the preceding sentence. Payments under clauses (A) and (B) in the preceding
sentence shall be made no less often than monthly.
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Section 6. Assignment. This Agreement shall not be assignable by the
Company except to a majority-owned subsidiary or parent entity of the Company or
to a successor to the Company and its business by way of merger, acquisition,
purchase of assets or otherwise and this Agreement is and shall be binding upon
and inure to the benefit of any such parent, subsidiary or successor. This
Agreement shall not be assignable by Executive but it shall be binding upon and
inure to the benefit of Executive's heirs, executors, administrators and legal
representatives.
Section 7. Notices. All notices, requests, demands and other
communications hereunder must be in writing and shall be deemed to have been
given if delivered by hand or mailed by first class, registered mail, return
receipt requested, postage and registry fees prepaid, and addressed as follows:
(e) If to the Company, to: Tasty Baking Company
0000 Xxxxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Secretary
(f) If to the Executive, to:
Xxxx X. Xxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Addresses may be changed by notice in writing signed by the addressee.
Section 8. Confidential Information. Executive agrees to hold in a
fiduciary capacity for the benefit of the Company all of the Company's business
secrets and confidential information, knowledge and data relating to the Company
or any of its affiliated companies and their respective businesses, which have
been obtained by the Executive during his employment by the Company or any of
its affiliated companies, including without limitation, information relating to
such matters as finances, operations, processes, product recipes, new products
in development, sales methods, equipment, techniques, plans, formulae, products,
methods and know-how, customer requirements and names of suppliers. The
obligations under this Section 8 shall survive the termination of this Agreement
and any termination of Executive's employment with the Company or any of its
affiliates. Executive's obligations under this Section 8
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shall not be deemed violated in the event that (i) Executive discloses any such
information pursuant to order of a court of competent jurisdiction or any
administrative, quasi-judicial or other body having subpoena power, provided
Executive has notified the Company of such potential legal order and provided
the Company with the opportunity to challenge or limit the scope of the
disclosure, or (ii) such information becomes generally available from a source
other than the Company, any of its affiliates, or any of their employees when
such source is legally entitled, to the best of Executive's knowledge, to make
such information available. Executive agrees that in the event of breach of any
of his obligations under this Section 8, Company shall be entitled to an
injunction restraining Executive from violating the provisions hereof and he
further agrees that an action for damages does not provide an adequate remedy
for his violation of this Section 8, in addition to any other remedies available
under this Agreement, under the law or in equity.
Section 9. Mediation/Arbitration. Except as provided in Section 8
above, the parties shall attempt to resolve any dispute through mediation
conducted in Philadelphia, Pennsylvania. If the parties do not promptly agree on
a neutral mediator, then any of the parties may notify J.A.M.S./Endispute, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, to initiate selection of a mediator from the
J.A.M.S/Endispute Panel of Neutrals. The Company shall pay the fees and expenses
of the mediator. If the mediator is unable to facilitate a settlement of the
dispute within a reasonable period of time, as determined by the mediator, the
mediator shall issue a written statement to the parties to that effect and the
aggrieved party(ies) may then seek relief through arbitration, which shall be
binding, before a single arbitrator pursuant to the Commercial
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Arbitration Rules ("Rules") of the American Arbitration Association (the
"Association"). The place of arbitration shall be Philadelphia, Pennsylvania.
Arbitration may be commenced at any time by any party seeking arbitration by
written notice to the other party(ies) by first class mail, postage prepaid. The
arbitrator shall be selected by the joint agreement of the parties, but if the
parties do not so agree within (30) business days after the date of the notice
referred to above, the selection shall be made pursuant to the Rules from the
panels of arbitrators maintained by such Association, and such arbitrator shall
be neutral, impartial, independent of the parties and others having any known
interest in the outcome, shall abide by the ABA and AAA Code of Ethics for
neutral arbitrators and shall have no ex parte communications about the dispute
with either party. The arbitrator shall be required to follow applicable law and
render a written decision within one hundred eighty (180) days of appointment.
Any award rendered by the arbitrator shall be final, conclusive and binding upon
the parties hereto and there shall be no right of appeal therefrom. Any court
having jurisdiction thereof may enter judgment upon the award rendered by the
arbitrator. The costs and expenses of arbitration, including legal fees and
expenses of the arbitrator, shall be paid by the parties as the arbitrator may
assess. Each party shall pay his or its own legal fees and costs. The arbitrator
shall not be permitted to award punitive or similar type damages under any
circumstances. The procedures set forth in this Section 9 shall constitute the
sole and exclusive procedures for the resolution of any dispute under this
Agreement, except for any dispute related to an alleged violation of Section 8
hereof, in which case Company, without prejudice to or compliance with the
procedures set forth in this Section 9, is expressly permitted to institute
legal proceedings to obtain a temporary restraining order, a preliminary and
permanent injunction or other applicable relief.
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Section 10. Miscellaneous.
This Agreement is the entire agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings, oral or written,
relating to the subject matter hereof, and no change, alteration or modification
hereof may be made except in writing signed by both parties hereto. The headings
in this Agreement are for convenience of reference only and shall not be
considered as part of this Agreement nor limit or otherwise affect the meaning
hereof. This Agreement shall in all respects be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of laws or principles.
IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Agreement as of the date first
above written. ATTEST: TASTY BAKING COMPANY
By:
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Secretary Xxxxxxx X. Xxxxx, President and Chief
Executive Officer
(SEAL)
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Witness Xxxx X. Xxxxxxx, Executive
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EXHIBIT A
SERP INSERT
TASTY BAKING COMPANY
ARTICLE I.
3. Early Retirement.
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(a) In the event that the Employee shall elect early
retirement pursuant to the terms of the Employer's Pension Plan, he shall be
entitled to receive benefits in accordance with paragraph 1 above, but such
benefits shall be reduced in the same proportion as the benefits which are due
under the Employer's Pension Plan are reduced as the result of early retirement.
However, in the event that the Employee's employment with the Employer is
terminated prior to Employee's reaching age 62, as provided in Section 5(d) of
that certain Amended and Restated Employment Agreement dated as of December 28,
2002 between Employer and Employee ("Employment Agreement") for any reason other
than death or by the Employer for cause (as defined in the Employment
Agreement), Employer shall be obligated to pay additional benefits to Employee
under this Agreement as follows: if Employee elects to commence receiving early
retirement benefits under the Employer's Pension Plan on or after age 62,
Employer shall be obligated to pay benefits to Employee under this Agreement to
make Employee whole for any actuarial reduction in his benefits that would
otherwise be applicable under this Agreement and under the Employer's Pension
Plan in excess of the reduction that would be applicable to Employee if he
terminated employment at age 62 and elected immediate early retirement under the
Employer's Pension Plan.
[Note: Modifications to SERPs approved by the Board April 22, 1988 shall also be
included.]
EXHIBIT "B"
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RELEASE
KNOW ALL MEN BY THESE PRESENTS that XXXX X. XXXXXXX, for
himself, and his agents, representatives, heirs, executors, administrators,
insurers, successors and assigns, and all persons, corporations or other
entities connected therewith which might claim by, through or under them or any
of them (all of whom are hereby individually and collectively referred to in
this paragraph as "Releasors"), do hereby release, remise and forever discharge
TASTY BAKING COMPANY, its respective direct and indirect subsidiaries,
affiliates, investors, insurers, successors, assigns, and each of their agents,
servants, shareholders, employees, officers, directors, trustees,
representatives and attorneys, and each of their heirs, successors, executors
and administrators (all of whom are hereinafter individually and collectively
referred to in this paragraph as "Releasees"), of and from any and all claims,
demands, causes of action, actions, rights, damages, judgments, costs,
compensation, suits, debts, dues, accounts, bonds, covenants, agreements,
expenses, attorneys' fees, damages, penalties, punitive damages and liability of
any nature whatsoever, in law or in equity or otherwise, which Releasors have
had, now have, shall or may have in the future, whether known or unknown,
foreseen or unforeseen, suspected or unsuspected, by reason of any cause, matter
or thing whatsoever, including those relating to Xx. Xxxxxxx'x employment with
Tasty Baking Company ("Company") and the termination of that employment, except
as expressly provided in the immediately following sentence to the date of this
Release. Notwithstanding anything contained in this Release to the contrary,
Xxxx X. Xxxxxxx does not release, remise or discharge the Releasees of or from
any claims which he may have under (i) the Company's qualified retirement plans
or 401k plans; (ii) that certain Supplemental Executive Retirement Program
Agreement originally dated June 10, 1987 between the Company and Xx. Xxxxxxx, as
amended, and the rabbi trust with respect to such program; (iii) any plans which
the Company may have in effect from time-to-time, as they may be modified from
time-to-time, to provide medical and/or life insurance benefits to retirees;
(iv) that certain Amended and Restated Employment Agreement dated as of December
28, 2002 between Xx. Xxxxxxx and the Company, for damages arising out of the
Company's breach thereunder, but limited only to the amounts set forth in
Section 5(d) thereof, all other damages being expressly released, and (v) the
indemnification provisions contained in the Company's Articles of Incorporation
and/or Bylaws, and/or any indemnification agreement in favor of Xx. Xxxxxxx,
relating to indemnification of officers and/or directors.
This paragraph and its subparagraphs are intended to comply
with section 201 of the Older Workers' Benefits Act of 1990, as amended.
(i) By the execution of this release, Xxxx X. Xxxxxxx
acknowledges that he is giving up all claims related to his employment with
Company and the termination of that employment, including but not limited to,
claims for breach of contract or implied contract, wrongful, retaliatory or
constructive discharge, negligence, misrepresentation, fraud, detrimental
reliance, promissory estoppel, defamation, invasion of privacy, impairment of
economic opportunity, intentional or negligent inflection of emotional distress,
any and all other torts, and claims for attorney's fees, as well as the
following statutory claims described below.
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(ii) Xxxx X. Xxxxxxx further acknowledges that various state
and federal laws prohibit discrimination based on age, gender, race, color,
national origin, religion, handicap or veterans status. These include Title VII
of the Civil Rights Act of 1964, 42 U.S.C. ss.2000e et seq. and the Civil Rights
Act of 1991 (relating to gender, national origin, and certain other kinds of job
discrimination); the Age Discrimination in Employment Act, 29 U.S.C. 626 et
seq., (relating to age discrimination in employment), the Older Workers Benefit
Protection Act, 29 U.S.C. ss.626, the Rehabilitation Act of 1973, the Civil
Rights Act of 1866 and 1871, the Americans with Disabilities Act and the
Pennsylvania Human Relations Act. He also understands and acknowledges that
there are various federal and state laws governing wage and hour issues,
including but not limited to the Fair Labor Standards Act, Pennsylvania wage and
hour laws, and the Equal Pay Act of 1963 (relating to all the above forms of job
discrimination). He acknowledges that he is giving up any claims he may have
under any of these statutes and under any other federal, state or municipal
statute, ordinance, executive order or regulation relating to discrimination in
employment, wage and hour issues, or in any way pertaining to his employment
relationship with Company. He understands and acknowledges that this release
applies to all such employment-related claims which he now has or may have to
the date of this Agreement.
(iii) Xxxx X. Xxxxxxx hereby certifies that Company has
advised him that he has at least 21 days (a) to consider and review this Release
and its consequences with an attorney of his choosing, and (b) if he accepts the
terms of this Release, to forward an executed copy of this Release to Company in
accordance with Section 7 of his Employment Agreement.
(iv) Xxxx X. Xxxxxxx also acknowledges and understands that he
has seven (7) days from the execution of this Release to advise Company that he
is revoking this Release, and understand that if he has not revoked this Release
by the end of the seven-day period, this Release will be effective and in full
force. He understands that any revocation he makes shall be in writing, sent by
facsimile, hand delivery or overnight mail, to Company in accordance with
Section 7 of his Employment Agreement.
(v) In the event that his acceptance of this Release is
revoked (as set forth in the last sentence of paragraph (iv)), then he shall
immediately return to Company any payments made to him under Section 5(d) of his
Employment Agreement.
Releasor agrees that he will not, at any time hereafter, nor
will he permit, at any time hereafter, any person acting under his direction or
control to, initiate, maintain, or prosecute, or in any way knowingly aid,
directly or indirectly, in the initiation, maintenance, or prosecution of, any
claim, demand, suit, accounting, or cause of action against the Releasees, or
any of them, arising out of, or in any way connected with any matter, thing,
transaction, occurrence, act or omission with respect to which a release is
being provided hereunder.
Nothing herein is intended to foreclose Xx. Xxxxxxx from
filing a charge with the Equal Employment Opportunity Commission. In the event
such a charge is filed, Xx. Xxxxxxx shall be precluded from recovering any
monetary relief or obtaining any other personal recovery.
If Xxxx X. Xxxxxxx, his heirs or personal representatives, or
any person or entity acting on their behalf, takes, pursues or supports any
action to determine that this Release, or any
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part hereof, or any other release contained in this Agreement is invalid and if
this Release, or any part hereof, or any other release contained in this Release
is determined to be invalid for any reason, then any obligations the Company may
have to Xx. Xxxxxxx pursuant to the Amendment to Supplemental Executive
Retirement Plan Agreement Between Tasty Baking Company and Xxxx X. Xxxxxxx shall
cease.
IN WITNESS WHEREOF, and intending to be legally bound, the Releasor
hereto has executed and delivered this Release as of the _____ day of
___________________, 200_.
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Xxxx X. Xxxxxxx
STATE OF :
:
COUNTY OF :
On this, the ______ day of _________________, 200__, before
me, the undersigned officer, personally appeared XXXX X. XXXXXXX known to me
(satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My Commission Expires:
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