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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated September ___, 1997, is
made effective for all purposes and in all respects as of the Effective Date
(as defined below), by and between AMERICAN ITALIAN PASTA COMPANY, a Delaware
corporation (hereinafter referred to as "Employer"), and XXXXX X. XXXXXX, an
individual (hereinafter referred to as "Employee") and supersedes any and all
prior oral or written agreements between the parties with respect to the
subject matter hereof.
RECITALS
A. Employer is engaged in the business of Durum wheat milling and pasta
production/marketing and maintains its principal place of business at 0000
Xxxxxxx Xxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
B. In connection with such business, Employer desires to continue to employ
Employee in the capacity of Executive Vice President and Chief Financial
Officer.
C. Employee desires to continue to be employed by Employer in the aforesaid
capacity.
NOW, THEREFORE, based on the Recitals set forth above, which are incorporated
herein by this reference, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and based on the
mutual promises herein contained, the parties hereby agree as follows:
1. Term of Employment. Subject to the provisions of Section 7 hereof,
Employee's term of employment by Employer under this Agreement (the "Initial
Employment Term") shall commence on the date Employer's initial public offering
(the "Offering") of its Class A Convertible Preferred Common Stock, par value
$.001 per share (the "Common Stock") is consummated (the "Effective Date") and
terminate on the date that is three years after the Effective Date, provided,
however, that the term of Employee's employment shall be extended automatically
for successive one-year periods unless not later than six months prior to such
automatic extension Employer shall have given written notice to the contrary
(each an "Additional Term"). The period of time between the Effective Date and
the termination of the Initial Employment Term or the last Additional Term, if
any, is referred to herein as the "Employment Term."
2. Duties of Employee.
2.1 In accepting such employment, Employee shall undertake and assume the
responsibility of performing for and on behalf of Employer such duties as shall
be assigned to Employee by Employer at any time and from time to time. It is
understood and agreed that Employee's principal duties on behalf of Employer at
the date of execution hereof are and shall
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be overall direction of financial, administrative, and logistical functions; it
is further understood and agreed that any modification in or expansion of
Employee's duties hereunder shall not, unless specifically agreed to by
Employee in a duly-executed amendment of this Agreement in accordance with
Section 10.6 hereof, result in any modification in, increase or decrease of,
Employee's compensation referred to in Section 3 hereof.
2.2 Employee will, at all times, faithfully, industriously, and to the
best of his ability, experience and talents, perform all of the duties that may
be required of and from Employee pursuant to the express and implicit terms
hereof, to the reasonable satisfaction of Employer.
2.3 Employee shall devote substantially all of his professional time,
attention, knowledge and skills solely to the business and interests of
Employer; provided, however, that Employee shall be entitled annually to a
vacation, in accordance with Employer's policies then in effect and Employer
shall be entitled to all of the benefits, profits and other issues arising from
or incident to all professional work, services and advice of Employee.
3. Compensation. Employer shall pay Employee, and Employee shall accept from
Employer, in payment for Employee's services rendered to Employer hereunder an
annual base salary ("Base Salary") which from the Effective Date through
December 31, 1998 shall be equal to One Hundred Eighty Thousand Dollars
($180,000). Such Base Salary shall be subject to merit increase reviews, in
the sole discretion of the Board, at least annually by Employer. Such salary
shall be paid in equal bi-weekly installments.
3.1 Bonuses. During the term of this Agreement, Employee will be eligible
to participate in, and bonuses may be awarded to Employee at the discretion of
the Board of Directors in accordance with the terms of Employer's 1996 Salaried
Bonus Plan (the "Bonus Plan") attached hereto as Exhibit A, as the same may be
amended, modified or terminated from time to time.
3.2 Reimbursement of Business Expenses. Reasonable travel, entertainment
and other business expenses incurred by Employee in the performance of his
duties hereunder shall be reimbursed by Employer in accordance with Employer's
policies on terms no less favorable than those policies in effect immediately
prior to the date hereof.
3.3 Automobile Allowance. Employee shall be entitled to an annual
automobile allowance of Four Thousand Eight Hundred Dollars ($4,800), payable
in monthly installments, to reimburse him for the expenses incurred by him in
maintaining and operating an automobile used by him in connection with the
performance of his duties hereunder.
3.4 Benefits. Employee shall be entitled to participate in an equitable
manner with other senior executive employees of Employer in all welfare
benefit, incentive compensation or other plans or arrangements authorized,
adopted and maintained from time to time by Employer, including, without
limitation, the following: profit sharing plan, medical reimbursement plan,
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group life insurance plan, medical and dental insurance plan, and long-term
disability or income plan, if in effect with Employer. In addition, within six
months of the Effective Date, Employer shall adopt a group disability insurance
plan, pursuant to which Employer shall provide to Employee long-term disability
insurance at a cost to Employee not to exceed fifty percent (50%) of his
individual premiums payable under such plan. If Employer shall not have
adopted a group disability insurance plan within six months of the Effective
Date, Employer shall alternatively provide to Employee individual long-term
disability insurance on terms mutually agreeable to Employer and Employee at a
cost to Employee equal to fifty percent (50%) of the premiums payable under
such individual policy; provided Employer can maintain such a policy on the
life of Employee without any substantial increase in the standard premiums from
those as of the date hereof due to any "rating" of the Employee; and further
provided that if there is such a substantial increase, Employee shall have the
right to pay such increase personally and Employer would then maintain such
insurance.
3.5 Grant of Stock Options. Pursuant to the terms and conditions of the
American Italian Pasta Company 1997 Equity Incentive Plan (the "Plan") and the
Stock Option Agreement, by and between Employer and Employee dated as of the
Effective Date, upon the Effective Date, Employer will grant to Employee an
option to purchase 61,320 shares of Common Stock. The option price will be
equal to the per share price at which the Common Stock is sold to the public in
the Offering.
4. Non-Competition.
4.1 Employee acknowledges and recognizes the highly competitive nature of
the business of Employer and its affiliates and accordingly agrees as follows:
during the Employment Term and until the date that is one year after the date
that Employee ceases employment with Employer (such term period hereinafter
referred to as the "Noncompetition Period"), Employee will not, within the
United States of America, directly or indirectly, own, manage, operate,
control, be employed by or be connected in any manner with the ownership (other
than passive investments of not more than one percent of the outstanding shares
of, or any other equity interest in, any company or entity listed or traded on
a national securities exchange or in an over-the-counter securities market),
management, operation, or control of any business engaged in the production
and/or marketing of dry pasta for human consumption. Notwithstanding any
provision of this Agreement to the contrary, if Employee is employed by
Employer, any breach of the provisions of this Section 4.1 shall permit
Employer to terminate the employment of Employee for Cause (as defined below),
and, whether or not Employee is employed by Employer, from and after any breach
by Employee of the provisions of this Section 4.1, Employer shall cease to have
any obligations to make payments to Employee under this Agreement.
4.2 During the Noncompetition Period, Employee will not directly or
indirectly induce any employee of Employer or any of its affiliates to engage
in any activity in which Employee is prohibited from engaging by Section 4.1
above or to terminate his employment with Employer or any of its affiliates,
will not directly or indirectly assist others in engaging in any of the
activities in which Employee is prohibited from engaging by Section 4.1 above,
and will not
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directly or indirectly employ or offer employment to any person who was
employed by Employer or any of its affiliates unless such person shall have
ceased to be employed by Employer or any of its affiliates for a period of at
least 12 months.
4.3 In addition to any payments Employer is required to make pursuant to
Section 7 hereof, Employer and Employee hereby agree that Employer may, in its
sole discretion, continue to pay to Employee his Base Salary during the
Noncompetition Period. During such period of continued payment, if any,
Employee agrees to be available, consistent with other responsibilities that he
may then have, to answer questions and provide advice to Employer.
5. Confidentiality. Employee acknowledges that, in and as a result of his
employment by Employer, he has been and will be making use of, acquiring and/or
adding to confidential information of a special and unique nature and value
relating to such matters as Employer's trade secrets, systems, procedures,
manuals, confidential reports and lists of customers and/or other services
rendered by Employer, the equipment and methods used and preferred by
Employer's customers, and the prices paid by such customers. As a material
inducement to Employer to enter into this Agreement, and to pay to Employee the
compensation referred to in Section 3 hereof, including any additional benefits
referred to in Section 3.3 hereof, Employee covenants and agrees that he shall
not, at any time during or after the Employment Term, directly or indirectly,
disclose, divulge or use, for his own benefit or purposes or the benefit or
purposes of any other person, firm, partnership, joint venture, association,
corporation or other business organization, entity or enterprise other than
Employer and any of its subsidiaries or affiliates, any trade secrets,
information, data, or other confidential information relating to customers,
development programs, costs, prices, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of Employer generally, or
of any subsidiary or affiliate of Employer, provided, however, that the
foregoing shall not apply to information which is not unique to Employer or
which is generally known to the industry or the public other than as a result
of breach of this covenant. Employee agrees that upon termination of his
employment with Employer for any reason, he will return to Employer immediately
all memoranda, books, manuals, training materials, records, computer software,
papers, plans, information, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of Employer and its affiliates,
except that he may retain personal notes, notebooks and diaries. Employee
further agrees that he will not retain or use for his account at any time any
trade names, trademark or other proprietary business designation used or owned
in connection with the business of Employer or its affiliates.
6. Specific Performance. Employee acknowledges and agrees that Employer's
remedies at law for a breach or threatened breach of any of the provisions of
Section 4 or Section 5 would be inadequate and, in recognition of this fact,
Employee agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, Employer, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
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7. Termination of Employment
7.1 Termination without Cause; Resignation for Good Reason.
7.1.1 General. Subject to the provisions of Sections 7.1.2 and 7.1.3, if
Employee's employment is terminated by Employer without Cause, as defined in
Section 7.3, or if Employee resigns from his employment for Good Reason, as
defined in Section 7.4, Employer shall pay Employee his accrued unpaid Base
Salary to the date of termination or resignation and any bonus earned but not
paid and shall continue to pay Employee the greater of (i) his annual Base
Salary as of the date of termination or resignation plus his bonus, if any, for
the year in which such termination or resignation occurs (calculated as if the
Norm Bonus for that year is earned) for a period of one (1) year following the
date of termination or resignation, or (ii) if such termination or resignation
occurs during the Initial Employment Term, the remaining portion of Employee's
Base Salary plus his bonus, if any, for the year in which such termination or
resignation occurs (calculated as if the Norm Bonus for that year is earned)
for the Initial Employment Term (such period, as applicable, being referred to
hereinafter as the "Severance Period"). The Base Salary shall be payable in
bi-weekly payments during the Severance Period and the bonus shall be payable
at the conclusion of the Severance Period. During the Severance Period,
Employee shall also be eligible to participate on the same terms and conditions
as in effect immediately prior to such termination or resignation in all
health, medical, supplemental medical and life insurance plans or programs
provided to Employee by Employer pursuant to Section 3.3 above ("Employee
Welfare Plans") at the time of such termination or resignation and which are
provided by Employer to its employees following the date of such termination or
resignation; provided, however, that Employee's eligibility to participate in
these Employee Welfare Plans shall end at such time as Employee becomes
eligible to receive coverage under comparable programs of a subsequent
employer. If, during the Severance Period, Employee is precluded from
participating in any Employee Welfare Plan by its terms or applicable law,
Employer will provide Employee with benefits that are reasonably equivalent to
those which Employee would have received under such plan had Employee been
eligible to participate therein. Anything to the contrary herein
notwithstanding, Employer shall have no obligation to continue to maintain any
Employee Welfare Plan during the Severance Period solely as a result of this
Agreement. As an example and solely for purposes of illustration: If Employer
were to terminate its dental insurance plan prior to or during the Severance
Period, then Employer would have no obligation to maintain such plan or provide
to Employee individual dental insurance in order to satisfy its obligations
under this Section 7.1.1.
7.1.2 Mitigation. Employee will not be required to mitigate the amount
of any payment provided for in Section 7.1.1 by seeking other employment, and
the amount of any such payment will not be reduced by any compensation earned
by Employee as the result of his employment by another employer subsequent to
termination of Employee's employment with Employer.
7.1.3 Death During Severance Period. In the event of Employee's death
during the Severance Period, the Severance Period shall immediately cease,
Employer shall not
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be obligated to make any further payments pursuant to this Section 7, and the
provisions of Section 8.1 shall apply as though Employee's death had occurred
immediately prior to termination of Employee's employment hereunder.
7.1.4 Date of Termination. The date of termination of employment without
Cause shall be the date specified in a written notice of termination to
Employee which in no case shall be more than 30 days following the date of
notice. The date of resignation for Good Reason shall be the date specified in
the written notice of resignation from Employee to Employer which in no case
shall be more than 30 days following the date of notice.
7.2 Termination for Cause; Resignation Without Good Reason.
7.2.1 General. If Employee's employment hereunder is terminated by
Employer for Cause, or if Employee resigns from his employment hereunder other
than for Good Reason (a "Voluntary Termination"), Employee shall be entitled
only to payment of his Base Salary earned through and including the date of
termination or resignation. Employee shall have no further right to receive
any other compensation, or to participate in any other plan, arrangement, or
benefit, after such termination for Cause or resignation of employment other
than for Good Reason.
7.2.2 Date of Termination. Subject to Section 7.3, the date of
termination for Cause shall be the date of receipt by Employee of a written
Notice of Termination provided for in Section 7.2.3. The date of resignation
without Good Reason shall be the date specified in the written notice of
resignation from Employee to Employer, or if no date is specified therein, 10
business days after receipt by Employer of written notice or resignation from
Employee.
7.3 Cause. Termination for "Cause" means termination of Employee's
employment because of (i) any willful and continued failure substantially to
perform his duties hereunder (other than as a result of Permanent Disability,
as defined below), (ii) Employee's failure to comply with any of the material
terms of this Agreement, (iii) an act or acts on Employee's part constituting a
felony under the laws of the United States or any state thereof, (iv) breach by
Employee of any of the covenants contained in Sections 4 or 5 of this
Agreement, or (v) any other willful act or omission on Employee's part which is
materially injurious to the financial condition or business reputation of
Employer or any of its subsidiaries of affiliates; provided, however, that if
any such Cause relates to Employee's obligations under this Agreement and (x)
is susceptible to cure, and (y) does not constitute a repetition of such Cause,
Employer shall not terminate Employee's employment hereunder unless Employer
first gives Employee a Notice of Termination, and Employee has not, within 15
business days following receipt of the notice, cured such Cause, or in the
event such Cause is not susceptible to cure within such 15 business day period,
Employee has not taken all reasonable steps within such 15 business day period
to cure such Cause as promptly as practicable thereafter. For purposes of this
Section 7.3, no act or failure to act on the part of Employee shall be deemed
"willful" unless done, or omitted to be done, by Employee in bad faith and
without reasonable belief that the act or omission of Employee was in the best
interest of Employer.
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7.4 Good Reason. For purposes of this Agreement, "Good Reason" means any
of the following actions taken by Employer without Employee's prior written
consent: (i) the continued failure of Employer to pay compensation due to
Employee under this Agreement, which failure is uncorrected for a period of 15
days following receipt by Employer of written notice thereof from Employee;
(ii) a material diminution in Employee's position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by Employer
promptly after receipt of written notice thereof given by Employee; provided,
however, that a mere change of Employee's title shall not constitute Good
Reason so long as Employee continues to perform duties, functions and
responsibilities substantially equivalent to those performed by him prior to
such change of title; (iii) relocation of Employee's primary workplace to a
location outside of the United States of America; and (iv) Employer's material
failure or refusal to comply with the provisions of this Agreement, which
failure or refusal to comply is uncorrected for a period of 15 days following
receipt by Employer of written notice thereof from Employee. It is expressly
understood and agreed by the parties hereto that Employer's failure to deliver
a notification extending the Initial Employment Term as referred to in Section
1 of this Agreement shall constitute a termination without Cause.
7.5 Stock Options. Employer has awarded to Employee a number of options
to acquire Common Shares under the Stock Option Agreements by and between
Employer and Employee dated July 31, 1994 and July 1, 1995 (the "Xxxxxx Option
Agreements") which are subject to the American Italian Pasta Company 1992 Stock
Option Plan (the "Plan"). Employer desires to and does hereby amend the Xxxxxx
Option Agreements to waive Employer's rights under (i) each option and Section
6(g)(ii) of the Plan to repurchase Employee's vested Options following his
termination of employment for any reason, other than by the Employer for Cause
or due to a Voluntary Termination, and (ii) Section 6(h) of the Plan to
repurchase all Common Shares acquired by Employee upon exercise of options
granted under the Plan before a Public Offering, provided Employee was not
terminated by Employer for Cause or due to a Voluntary Termination, in which
case Employer retains all rights to repurchase the Common Shares.
Notwithstanding anything to the contrary herein or in the Plan, all of the
stock options awarded to Employee under the Xxxxxx Option Agreements and
subsequent stock option grants immediately vest (i) upon a termination by
Employee for Good Reason, or (ii) upon a termination without Cause within six
months following a Change of Control (as defined below), at and to the extent
of Employee's choice.
8. Death or Permanent Disability.
8.1 Death. If Employee's employment hereunder is terminated by death,
Employer shall, within 90 days of the date of death, make (i) a lump sum
payment to Employee's estate (or other beneficiary designated by him in
writing) equal to all Base Salary and bonuses, if any, earned and accrued
through the date of death, and (ii) any other benefits payable under any
then-current life insurance policy provided to Employee pursuant to Section 3.3
hereof payable in accordance with the terms of such policy. Thereafter,
Employer shall have no further obligation to Employee under the Agreement.
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8.2 Permanent Disability. In the event Employee shall become physically
or mentally disabled while employed by Employer under this Agreement so that
Employee is unable to render the services provided for by this Agreement for a
period of six consecutive months or for shorter periods aggregating six months
during any 24-month period, or so that Employee has a Disability (as defined
under Employer's then- current disability policy), Employer may, at any time
after the last day of the six consecutive months of disability, the day on
which the shorter periods of disability equal an aggregate of six months, or
the day on which Employee is determined to have a Disability, terminate
Employee's employment hereunder for "Permanent Disability" by written notice to
Employee. Following such termination, Employee shall be entitled to received
from Employer: (i) all Base Salary and bonuses, if any, accrued through the
date of termination; and (ii) any other benefits payable under Employer's
then-current disability policy, but all other rights of Employee hereunder
shall terminate as of the date of Employee's termination.
9. Change of Control.
9.1 Notwithstanding anything to the contrary contained herein, if Employer
terminates Employee without Cause upon or within six months following a Change
of Control (as defined below), Employer shall pay Employee his accrued unpaid
Base Salary to the date of termination and any bonus earned but not paid and
shall continue to pay Employee the greater of (i): his annual Base Salary as
of the date such termination occurs (calculated as if the Norm Bonus for that
year is earned) for a period of one (1) year following the date of termination,
or (ii) if such termination occurs during the Initial Employment Term, the
remaining portion of Employee's Base Salary plus his bonus for the Initial
Employment Term, if any, for the year in which such termination occurs
(calculated as if the Norm Bonus for that year is earned), as severance pay
(such period, as applicable, being referred to hereinafter as the "Change of
Control Severance Period"). Any severance payable pursuant to this Section 9.1
will be in substitution for and not in addition to any severance that might be
payable pursuant to Article 7 hereof. To the extent Employer makes payments
pursuant to this Section 9.1, it will have no additional obligations under
Article 7. The Base Salary shall be payable in bi-weekly payments during the
Change of Control Severance Period and the bonus shall be paid at the
conclusion of the Change of Control Severance Period.
9.2 For purposes of this Agreement, "Change of Control" means any one of
the following:
(a) any person or group (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act")) (other than MS
Shareholders (as defined in Employer's Amended and Restated Shareholders'
Agreement dated as of September ___, 1997) or any group consisting solely of
such persons) acquiring beneficial ownership of more than 50% of Employer's
then outstanding Common Stock or 51% or more of the combined voting power of
the Employer's then outstanding securities entitled generally to vote for the
election of the Employer's Directors;
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(b) the consummation of the merger or consolidation of the Employer with
any other corporation, other than a merger with a wholly-owned subsidiary, the
sale of substantially all of the assets of the Employer, or the liquidation or
dissolution of the Employer, unless, in the case of a merger or consolidation,
(x) the Directors in office immediately prior to such merger or consolidation
will constitute at least a majority of the Board of Directors of the surviving
corporation of such merger or consolidation and any parent (as such term is
defined in Rule 12b-2 under the Exchange Act) of such corporation, or (y) the
voting securities of the Employer outstanding immediately prior thereto
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 66 2/3% of the combined voting
power of the voting securities of the Employer or such surviving entity and are
owned by all or substantially all of the persons who were the holders of the
voting securities of the Employer immediately prior to the transaction in
substantially the same proportions as such holders owned such voting securities
immediately prior to the transaction; or
(c) Continuing Directors (as defined below) no longer constitute at least
a majority of the Board or a similar body of any successor to the Employer.
For purposes of this Agreement, "Continuing Directors" means any individual who
either (i) is a member of the Employer's Board of Directors on the Effective
Date, (ii) who becomes a director after the Effective Date whose election or
nomination for election by Employer's shareholders, was approved by a vote of
at least a majority of the Continuing Directors (either by a specific vote or
by approval of the proxy statement of Employer in which such person is named as
nominee for director, without objection to such nomination), or (iii) is
designated by any party pursuant to its rights under Section 2.1 of the Amended
and Restated Shareholders' Agreement.
9.3 Excess Parachute Payments. If any payment or the receipt of any
benefit under this Agreement shall be deemed to constitute an "excess parachute
payment" as such term is described in Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"), so as to result in the loss of a deduction to
the Employer under Code Section 280G or in the imposition of an excise tax on
the Employee under Code Section 4999, or any successor sections thereto, then
the amounts payable or the benefits provided under this Agreement shall be
reduced to the minimum extent necessary so that no such deduction will be lost
by the Employer and no such excise tax will be imposed on the Employee. The
Employer, in its sole discretion, shall determine whether or not an "excess
parachute payment" would otherwise occur and shall determine the amount and
method of the foregoing reduction.
10. Miscellaneous.
10.1 Assignment of Employee Benefits. Absent the prior written consent of
Employer, and subject to will and the laws of descent and distribution,
Employee shall have no right to exchange, convert, encumber, or dispose of the
rights of Employee to receive benefits and payments under this Agreement, which
payments, benefits, and rights thereto are non-assignable and non-transferable.
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10.2 Burden and Benefit. This Agreement shall be binding upon, and shall
inure to the benefit of, Employer and Employee, their respective heirs,
personal and legal representatives, successors and assigns.
10.3 Governing Law. In view of the fact that the principal office of
Employer is located in the State of Missouri, it is understood and agreed that
the construction and interpretation of this Agreement shall at all times and in
all respects be governed by the laws of the State of Missouri.
10.4 Severability. It is expressly understood and agreed that although
Employee and Employer consider the restrictions contained in this Agreement to
be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Employee,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any
restriction contained in this Agreement is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein.
10.5 Headings. The headings of the Sections of this Agreement are for
reference only and not to limit, expand, or otherwise affect the contents of
this Agreement.
10.6 Entire Agreement; Modification. Except as to the Employer's Stock
Option Plans, any instrument relating to an Option granted thereunder and
written agreements signed by both of the parties hereto from time to time after
the date hereof, this Agreement contains the entire agreement and understanding
by and between Employer and Employee with respect to the subject matter hereof,
and any representations, promises, agreements, or understandings, written or
oral, not herein contained shall be of no force or effect. No change, waiver
or modification of any provision of this Agreement shall be valid or binding
unless the same is in writing and duly executed by both parties and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration, or litigation between the parties hereto arising out
of or affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid, and the parties further agree that the provisions of this Section
10.6 may not be waived except as set forth herein.
10.7 Waiver of Breach. The waiver by Employer of a breach of any provision
of this Agreement by Employee shall not operate or be construed as a waiver of
any subsequent breach by Employee.
10.8 Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the execution page
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of this Agreement, provided, however, that all notices to Employer shall be
directed to the attention of the Board of Directors of Employer with a copy to
the Secretary of Employer, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
10.9 Withholding Taxes. Employer may withhold from any amounts payable
under this Agreement such Federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
10.10 Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
as of the day and year first above written.
EMPLOYER:
AMERICAN ITALIAN PASTA COMPANY,
a Delaware Corporation
0000 Xxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
By:_____________________________
Xxxxxxx X. Xxxxxxx
President
EMPLOYEE:
________________________________
Xxxxx X. Xxxxxx
Address:
________________________________
________________________________
________________________________
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