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EXHIBIT 10.5(7)
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of June 30, 1997, between XXXXXXXXX
CORPORATION, a Delaware corporation, with its principal office located at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Corporation"), and XXXXX
XXXXXX, residing at 00 Xxxxxxxx Xxxxx Xxxx, Xxxx Xxx, Xxx Xxxxxx 00000 (the
"Executive").
W I T N E S S E T H:
WHEREAS, effective February 1, 1990, the Corporation and
Executive entered into an employment agreement pursuant to which the Executive
agreed to serve the Corporation as Vice President -- Xxxxx Xxxx Operations (the
"1990 Agreement");
WHEREAS, as of January 1, 1994, the Corporation and Executive
entered into an Amended and Restated Employment Agreement pursuant to which the
Executive agreed to continue to serve as Vice President -- Xxxxx Xxxx Operations
(the "1994 Agreement"); and
WHEREAS, the Corporation desires to continue to employ
Executive, and Executive desires to continue to be so employed by
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the Corporation, on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
1. EMPLOYMENT: TERM. The Corporation agrees to employ
Executive, and Executive agrees to furnish his services, on the terms and
conditions herein set forth, for a term of three (3) years commencing as of June
30, 1997 and ending on June 30, 2000, unless sooner terminated as herein
provided. The term of Executive's employment hereunder may be extended for
additional one (1) year periods by the mutual written consent of both parties
hereto given at least ninety (90) days prior to the then scheduled termination
of the Executive's employment hereunder.
2. OFFICE AND DUTIES. During the term of this Agreement,
Executive agrees to serve the Corporation as the President -- Xxxxx Xxxx Food
Division and as the Executive Vice President of the Corporation. Executive shall
manage the operations of the Corporation's Xxxxx Xxxx Food Division and shall
report directly to the Chief Executive Officer of the Corporation. Executive
shall also perform such other duties and shall exercise such other powers for
the Corporation and for any
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of its divisions, operations, subsidiaries, or affiliated companies as from
time to time may be assigned to him by the Chief Executive Officer or the Board
of Directors without further compensation other than that for which provision is
made in this Agreement; provided that any such other duties shall be consistent
with Executive's position as President -- Xxxxx Xxxx Food Division and as
Executive Vice President of the Corporation; and provided further that Executive
shall be required to move his place of residence at the request of the Chief
Executive Officer or the Board of Directors only if such request is reasonable
in view of the Corporation's operations and Executive's duties hereunder.
3. EXTENT OF SERVICES: OTHER BUSINESS ACTIVITIES. Executive
agrees that he shall devote his best efforts, energies, and skills to the
discharge of his duties and responsibilities hereunder. To this end, Executive
agrees that he shall devote his full business time and attention to the business
and affairs of the Corporation and its divisions, operations, subsidiaries, and
affiliated companies and shall not, without the consent of the Corporation,
directly or indirectly, engage or participate in, or become an officer or
director of, or become employed by, or render advisory or other services in
connection with, any other business enterprise. Notwithstanding the foregoing,
during the term of this Agreement Executive shall have the right to
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invest personally in any corporation, partnership, or other entity or
enterprise, engage in appropriate civic, charitable, and religious activities,
and devote a reasonable amount of time to private investments, provided that (i)
any such investment or other activity shall not interfere with the execution of
Executive's duties hereunder or otherwise violate any provision of this
Agreement, (ii) any such corporation, partnership, or other entity or enterprise
does not compete with the Corporation, and (iii) notwithstanding the foregoing,
Executive may purchase an aggregate of one percent (1%) of any security publicly
traded on an established securities market.
4. COMPENSATION.
(a) In consideration of the services to be rendered by
Executive hereunder, the Corporation agrees to pay to Executive, and Executive
agrees to accept, a salary for each Employment Year (as hereinafter defined)
during the term of this Agreement at the rate of $325,000 per Employment Year,
commencing effective as of June 30, 1997 and ending upon the termination of this
Agreement (the "Salary"). The Salary shall be payable in accordance with the
regular payroll practices of the Corporation. During the term of this Agreement,
the Corporation agrees to review Executive's compensation prior to each
anniversary date of the date hereof, but any increase in compensation offered to
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Executive under this Paragraph 4 resulting from such review shall be in the sole
discretion of the Board of Directors of the Corporation.
(b) In addition to the Salary, the Corporation agrees to pay
Executive, as further compensation, the sum of $100,000, in a single payment, on
or before June 30, 1997 and an additional $100,000 in a single payment, on or
before June 30, 1998.
(c) For the purposes of this Paragraph 4, the following terms
shall mean:
(i)"Base Amount": The sum of (x) $43,639,753; plus (y) an
amount equal to the interest that would accumulate if interest was accrued from
February 1, 1990 at a cumulative annual rate equal to the Prime Rate as
announced from time to time by the Bankers Trust Company on the sum of
$43,639,753, as said sum may be reduced (but not below zero) from time to time
by any proceeds received (in respect of its ownership of stock of the
Corporation) by the Partnership after the date of this Agreement.
(ii) "Employment Year": Provided that during each such
period Executive remains employed by the
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Corporation in accordance with the terms of this Agreement, each complete
one-year period commencing on February 1, 1990. The parties acknowledge that as
of the date of this Agreement the Executive has completed seven (7) Employment
Years.
(iii) "Partnership": Rose Partners, L.P.
(iv) "Recognition Event": A distribution of any assets,
whether in cash or in any other form, by the Corporation to the Partnership in
respect of the stock owned by the Partnership, or the realization by the
Partnership of any amount upon the sale or transfer of its ownership interest in
the stock of the Corporation.
(v) "Final Recognition Event": The sale by the
Partnership of all of its stock of the Corporation or the complete liquidation
of the Corporation by the Partnership.
(vi) "Event": Any of a Recognition Event or a Final
Recognition Event.
(vii) "Recognition Proceeds": To the extent that it
exceeds the Base Amount, the aggregate amount of all proceeds received by the
Partnership from and after the date of this Agreement, in respect of its
ownership of stock of the
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Corporation, whether such proceeds are in the form of a dividend or other
distribution, liquidating or non-liquidating, or in consideration for the sale
or other disposition of such stock.
(d) Subject to the qualifications and limitations set forth
below, Executive shall be entitled to be paid additional compensation (the
"Additional Compensation") upon the occurrence of each Event. The Additional
Compensation payable at each Event shall be the sum of: (i) six (6%) percent of
the Recognition Proceeds, less (ii) the cumulative amount of Additional
Compensation paid to the Executive prior to that particular Event; less (iii)
the amount, if any, paid to the Executors pursuant to Paragraph 4(i) below;
provided, however,that the six (6%) percent stated in (i) above may be reduced
(but not below zero) as provided for in Paragraph 4(g) below.
(e) Notwithstanding the provisions of Paragraph 4(d), the
minimum amount payable to the Executive as Additional Compensation upon the
occurrence of the Final Recognition Event shall be the sum of: (i) $1,000,000;
less (ii) the cumulative amount of all Additional Compensation paid to the
Executive prior to the Final Recognition Event.
(f) Notwithstanding anything contained in Paragraph 4(d) or
4(e) to the contrary, the Executive shall not
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be entitled to any further payments of Additional Compensation from and after
any of the following events: (i) the Executive's termination of employment for
"cause" (as set forth in Paragraph 10); and (ii) if Executive resigns his
employment prior to the end of the term of this Agreement or any extended term
of this Agreement.
(g) In measuring the six (6%) percent set forth in Paragraph
4(d)(i) above, the six (6%) percent shall be reduced by one (1) full percentage
point for each full twelve (12) months following any of the following events:
(i) the Executive's death; (ii) the Executive becomes disabled (as provided in
Paragraph 8); and (iii) the date the Executive's employment is terminated by the
Corporation for a reason other than "cause".
(h) Upon the occurrence of each Event, the Corporation shall
calculate the amount payable, if any, to the Executive under this Paragraph 4
and shall pay such amount to the Executive within thirty (30) days after the
Event.
5. EXECUTIVE BENEFITS.
(a) Executive shall be entitled to participate, on the same
basis and subject to the same qualifications, in all employee benefit plans (the
"Plans"), including, but not limited
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to, pension and profit-sharing plans, supplemental retirement benefit plans, and
life, health, disability, and similar plans, and fringe benefits (the
"Benefits") which during the term hereof shall be in effect from time to time
and be applicable to the Corporation's employees or senior executives generally.
In the event Executive is asked by the Corporation to relocate his place of
residence, any reasonable moving (and associated) expenses and costs shall be
reimbursed by the Corporation.
(b) If Executive's employment hereunder is terminated by the
Corporation prior to the scheduled termination of the term of Executive's
employment hereunder (other than a termination for "cause" (as hereinafter
defined) or as a result of Executive's voluntary resignation from his employment
by the Corporation), the Corporation shall either (i) continue through the
scheduled termination date of the term of Executive's employment hereunder
Executive's participation in the Plans and entitlement to the Benefits to which
Executive would have been entitled had he remained employed through the term of
this Agreement, or (ii) provide equivalent benefits (taking into account the tax
consequences of any benefits described in clause (i)) to Executive at no
additional cost to Executive, but only to the extent that essentially equivalent
and no less favorable benefits are not provided by a subsequent employer or
otherwise received by Executive. If the terms of any such Plans or
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Benefits do not permit continued participation by Executive, the Corporation
shall arrange to provide to Executive benefits substantially similar to, and no
less favorable than, the benefits he was entitled to receive up until the end of
the period of coverage. Executive shall have the option to have assigned to him
at no cost and with no apportionment of prepaid premiums, any assignable
insurance policy owned by the Corporation and relating specifically to
Executive.
(c) Recognizing that Executive will be required to do a
considerable amount of driving in connection with his duties as President --
Xxxxx Xxxx Food Division and as Executive Vice President of the Corporation, the
Corporation shall provide to Executive a Cadillac, Lincoln, or equivalent
American automobile of Executive's choice, and will pay all reasonable costs
relating to the operation of such automobile in connection with such duties,
including gas, maintenance, and insurance (including covering any deductible).
6. EXPENSES. It is contemplated that, in connection with his employment
hereunder, Executive may be required to incur reasonable travel, entertainment,
and other business expenses. To the extent not otherwise reimbursed under
paragraph 5(c), the Corporation agrees to pay, or reimburse Executive for, all
reasonable and necessary travel, entertainment, and other
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business expenses incurred or expended by him incident to the performance of his
duties and responsibilities hereunder, upon submission by Executive to the
Corporation of vouchers or expense statements evidencing the expenses for which
reimbursement is sought.
7. VACATIONS. Executive shall be entitled to vacations in accordance
with the Corporation's normal vacation policies for senior executives, which
vacations shall be taken at times consistent with the effective discharge of
Executive's duties.
8. DISABILITY. In the event that Executive shall be incapacitated by
reason of mental or physical disability or otherwise during the term of
employment so that he is prevented from substantially performing his duties and
services hereunder for a period of 180 days during any twelve (12) month period,
the Corporation shall have the right to terminate Executive's employment under
this Agreement by sending written notice of such termination to Executive, and
thereupon his employment hereunder shall terminate. Upon such termination,
Executive shall be entitled, subject to the limitations provided herein, to
receive the compensation provided for in paragraph 4 hereof and the benefits
provided for in paragraph 5 hereof for one (1) year following the date of
termination, and shall continue to be
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entitled to any benefits in which he otherwise is vested pursuant to this
Agreement; provided that if Executive is receiving payments through a disability
policy maintained by the Corporation (other than a group policy maintained in
behalf of all executives), such payments shall be deducted from the amounts to
be paid by the Corporation to Executive during such period. Executive shall
accept such payment in full discharge and release of the Corporation of and from
any further obligations under this Agreement.
9. DEATH. In the event of Executive's death during the term of this
Agreement, Executive's designated beneficiary or, if no such beneficiary shall
have been designated by Executive, the personal representative of Executive
shall be entitled to receive and shall be paid by the Corporation, the
compensation provided for in Paragraph 4 hereof, subject to the limits set forth
therein, and the benefits provided for in Paragraph 5 hereof for one (1) year
following the date of Executive's death, and shall continue to be entitled to
any benefits in which he otherwise is vested pursuant to this Agreement;
provided that if Executive is receiving or is entitled to receive payments
through a death benefit insurance policy maintained by the Corporation (other
than a group policy maintained in behalf of all executives) such payments shall
be deducted from the amounts to be paid by the Corporation to
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Executive during such period. Executive's designated beneficiary or personal
representative, as the case may be, shall accept such payment in full discharge
and release of the Corporation of and from any further obligations under this
Agreement.
10. TERMINATION FOR CAUSE.
(a) The Corporation shall have the right to terminate the employment
of Executive hereunder for cause at any time if:
(i) Executive shall be convicted, by a court of competent and
final jurisdiction, of any crime (whether or not involving the Corporation or
any of its divisions, operations, subsidiaries or affiliated companies) which
constitutes a felony in the jurisdiction involved; or
(ii) Executive shall commit any act of fraud against or shall
breach a fiduciary obligation to the Corporation or any of its divisions,
operations, subsidiaries, or affiliated companies, provided that any such act
(or failure to act) shall be determined in good faith by the Board of Directors
to be material in respect of Executive's duties or functions hereunder; or
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(iii) Executive shall fail or refuse to perform any of
his duties and responsibilities as required by, or shall otherwise breach, this
Agreement, provided that termination of Executive's employment pursuant to this
subparagraph 10(a)(iii) shall not constitute valid termination for cause unless
Executive shall first have received written notice from the Board of Directors
or the Chief Executive Officer of the Corporation stating with specificity the
nature of such failure or refusal and affording Executive at least fifteen (15)
days to correct the act or omission complained of.
(b) In the event that the employment of Executive shall be
terminated by the Corporation for cause pursuant to subparagraph 10(a) hereof,
Executive shall be entitled to receive the salary provided for in Paragraph 4(a)
hereof, prorated through the end of the week in which such termination occurs
and such amounts as may be payable under the balance of the provisions in
Paragraph 4, as specifically limited thereunder and in accordance with the terms
thereof. Executive shall accept such payment in full discharge and release of
the Corporation of and from any other further obligations under this Agreement.
Nothing contained in this Paragraph 10 shall constitute a waiver or release by
the Corporation of any rights or claims it may have against Executive for
actions or omissions which may give rise to
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an event causing termination of this Agreement pursuant to this Paragraph 10.
11. CONFIDENTIALITY: INJUNCTIVE RELIEF.
(a) Executive recognizes and acknowledges that the knowledge,
information, and relationship with resources, suppliers, and customers of the
Corporation, and the knowledge of the Corporation's business methods, systems
plans, and policies which he has heretofore and shall hereafter receive or
obtain as an employee of the Corporation, are valuable and unique assets of the
business of the Corporation. Accordingly, Executive agrees that he will not,
during or after the term of this Agreement, except if required in connection
with his duties as the Executive Vice President of the Corporation or as
the President -- Xxxxx Xxxx Food Division, and for a period of three (3)
years thereafter, disclose or use, without the prior written consent of
the Board of Directors of the Corporation, directly or indirectly, any
non-public information (whether written or unwritten) relating to the
Corporation, or any of its divisions, operations, subsidiaries or affiliated
companies, or any of their respective management, financial condition,
subscription, mailing or customer lists, sources of supply, business, personnel,
policies, or prospects, to any individual or entity for any purpose whatsoever.
The provisions of this subparagraph 11(a)
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shall not apply to information which is or shall become generally known to the
public or the trade (except by reason of Executive's breach of his obligations
hereunder), information which is or shall become available in trade or other
publications, or information which Executive is required to disclose by order of
a court of competent jurisdiction (but only to the extent specifically ordered
by such court and, when reasonably possible, if Executive shall give the
Corporation prior notice of such intended disclosure so that it has the
opportunity to seek a protective order if it deems appropriate).
(b) Executive acknowledges and agrees that all memoranda,
notes, reports, records, and other documents made or compiled by Executive, or
made available to Executive prior to or during the term of this Agreement,
concerning the Corporation's business, shall be the Corporation's property
and shall be delivered to the Corporation on the termination of Executive's
employment hereunder or at any other time on request by the Board of Directors
of the Corporation.
(c) The provisions of this Paragraph 11 shall survive the
termination or expiration of Executive's employment hereunder, irrespective of
the reason therefor, for a period of three (3) years.
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12. NO RAID: NON-COMPETE.
(a) Executive agrees that, for a period of three (3) years
after the date of the termination of Executive's employment under this
Agreement, Executive shall not, without the prior written approval of the Board
of Directors of the Corporation, directly or indirectly though any other person,
firm or corporation, solicit, raid, entice, or induce any person who is, at the
time of such solicitation or was at any time during the eighteen (18) months
immediately preceding such solicitation, raid, enticement, or inducement, an
employee of the Corporation or any of its subsidiaries or affiliates, to become
employed by such person, firm, or corporation, and Executive shall not approach
any such employee for such purpose or authorize or knowingly approve the taking
of such actions by any other person.
(b) For a period of three (3) years after the date of the
termination of Executive's employment under this Agreement, Executive will not,
whether individually or as a partner, owner, officer, director, stockholder, or
employee, own, manage, operate, or control or have a financial interest in, or
serve as a consultant to, any person, firm, corporation, or other entity which
is engaged in any business activity in competition with the business of the
Corporation in the markets in which the
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Corporation competes. The foregoing restrictions shall not be deemed to include
Executive's direct or indirect ownership of any securities in a publicly-traded
business entity which does not, and will not with the passage of time, result in
his obtaining, directly or indirectly, more than two percent (2%) of the
securities of such entity. Notwithstanding the foregoing, the restrictions
imposed on Executive under this paragraph 12(b) shall cease to apply as of the
later of (x) the scheduled termination (including any extension thereof) of
Executive's employment under paragraph 1 hereof, or (y) one (1) year after the
occurrence of either of the events described in the following clauses (i) and
(ii) of this paragraph 12(b), if either (i) Executive's employment with the
Corporation (and any subsidiary or affiliate thereof) shall be terminated by the
Corporation other than for "cause," or (ii) the Partnership shall have disposed
of all or substantially all of its interest in the Corporation and the aggregate
amounts payable to Executive under subparagraph 4(c) shall be no greater than
$1,000,000. Notwithstanding the foregoing, in the event Executive's employment
is terminated by the Corporation other than for "cause" and the Corporation
fails to satisfy its obligation to pay Executive as required under this
Agreement, the restrictions imposed on Executive under this paragraph 12(b)
shall cease to apply one (1) year after such failure.
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(c) The provisions of this Paragraph 12 shall survive the
termination or expiration of Executive's employment hereunder, irrespective of
the reason therefor.
13. INJUNCTIVE RELIEF.
(a) Executive acknowledges that the services to be rendered by
him are of a special, unique, and extraordinary character, and if he violates
any of the provisions of this Agreement with respect to confidentiality,
non-competition, or solicitation, the Corporation would sustain irreparable
harm. Accordingly, Executive consents and agrees that if he violates any of the
provisions of Paragraphs 12 or 13 hereof, in addition to any other remedies
which the Corporation may have under the Agreement or otherwise, the Corporation
shall be entitled to apply to any court of competent jurisdiction for an
injunction restraining Executive from committing or continuing any such
violation of this Agreement, and Executive shall not object to any such
application. Nothing in this Agreement shall be construed as prohibiting the
Corporation from pursuing any other remedy or remedies including, without
limitation, recovery of damages.
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(b) The provisions of this Paragraph 13 shall survive the
termination or expiration of Executive's employment hereunder, irrespective of
the reason therefor.
14. DEDUCTIONS AND WITHHOLDING. Executive agrees that the
Corporation shall withhold from any and all payments and compensation required
to be made to Executive pursuant to this Agreement all Federal, state, local,
and/or other taxes which the Corporation determines are required to be withheld
in accordance with applicable statutes and/or regulations from time to time in
effect.
15. NO CONFLICT. Executive represents and warrants that there
is no restriction, agreement or limitation on his right or ability to enter into
and perform the terms of this Agreement.
16. MISCELLANEOUS.
(a) This Agreement cancels and supersedes any and all prior
agreements and understandings between the parties hereto respecting the
employment of Executive by the Corporation and constitutes the complete
understanding between the parties with respect to the employment of Executive
hereunder. No statement, representation, warranty, or covenant has been made by
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either party with respect thereto except as expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument
signed by each of the parties hereto.
(b) Waiver by either party hereto of any breach of default by
the other party to any of the terms and provisions of this Agreement, shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived.
(c) All notices, consents, requests, demands, and other
communications hereunder shall be in writing and shall be delivered personally
or sent by registered or certified mail, return receipt requested, first class
postage prepaid, to the other party hereto at its or his address as set forth in
the beginning of this Agreement. Either party may change the address to which
notices, requests, demands, and other communications hereunder shall be directed
by giving written notice of such change of address to the other party in the
manner above stated.
(d) This Agreement shall inure to the benefit of and shall be
binding upon the heirs, executors, administrators, successors, and legal
representatives of Executive and shall inure to the benefit of and be binding
upon the Corporation and
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its successors. This Agreement is personal as to Executive and Executive may not
assign, transfer, pledge, encumber, hypothecate, or otherwise dispose of this
Agreement or any of his rights hereunder and any such attempt of assignment,
transfer, pledge, encumbrance, hypothecation, or other disposition shall be null
and void and without effect. The Corporation shall be entitled to assign this
Agreement without the prior written consent of Executive in connection with the
merger or consolidation of the Corporation with another corporation or the sale
of all or substantially all of the assets and business of the Corporation to
another corporation, provided that:
(i) immediately after the consummation of such transaction,
the surviving or acquiring corporation shall have a net worth not less than the
net worth of the Corporation immediately prior to such transaction; and
(ii) the surviving or acquiring corporation shall agree in
writing to accept an assignment of this Agreement, thereby acquiring the
Corporation's rights and assuming the Corporation's obligations under this
Agreement.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
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(f) The paragraph headings of this Agreement are for
convenience of reference only and shall not limit or define the text thereof.
(g) In the event that any one or more of the provisions of
this Agreement shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected thereby.
(h) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, when
taken together shall be deemed to constitute one and the same instrument.
(i) Any dispute regarding this Agreement shall be resolved
exclusively by arbitration in New Jersey in accordance with the rules of the
American Arbitration Association then in effect. The Corporation shall pay
Executive's reasonable legal expenses in connection with any such arbitration;
provided, however, that Executive shall reimburse the Corporation for such
expenses if the arbitrator(s) shall decide the material issues in favor of the
Corporation.
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IN WITNESS WHEREOF, the parties hereto have entered into
this Agreement as of the day and year first above written.
XxXXXXXXX CORPORATION
By: [ILLEGIBLE]
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Name :
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Title:
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/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
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