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Exhibit 10.14
AGREEMENT
This Agreement ("Agreement") is entered into as of October 14,
1997, by and between Tom's Foods Inc., a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxxxx ("Executive").
WHEREAS the Company considers it essential to the best
interests of its stockholders to xxxxxx the continuous employment of key
management personnel; and
WHEREAS the Board has determined that appropriate steps should
be taken to reinforce and encourage the continued attention and dedication of
members of the Company's management, including the Executive, to their assigned
duties;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definition of capitalized terms
used in this Agreement is provided in Section 13 hereof.
2. Term of Agreement. This Agreement shall commence on
the date hereof and shall continue in effect through December 31, 2001.
3. Company's Covenants Summarized. In order to induce
the Executive to remain in the employ of the Company, the Company agrees, under
the conditions described herein, to pay the Executive the Severance Payments
described in Section 4 hereof. This Agreement shall not be construed as
creating an express or implied contract of employment and, except as otherwise
agreed in writing between the Executive and the Company, the Executive shall
not have any right to be retained in the employ of the Company.
4. Severance Payments.
4.1 In the event of termination of the Executive without
Cause, Executive shall be entitled to receive all unpaid Base Salary earned to
the date of termination and the Company shall continue to pay to Executive as a
severance payment (the "Severance Payment") Executive's monthly salary as of
the date of termination for twelve (12) months following the termination date;
provided, however, that if Executive becomes otherwise employed any time during
such twelve (12) month period, the Company thereafter shall pay to Executive
only one-half of the remaining monthly Severance Payment due to Executive. In
addition, in the event of a Constructive Dismissal of Executive, the Company
shall pay to Executive the Severance Payment and such Severance Payment shall
not be reduced due to Executive's subsequent employment during the twelve (12)
month period. If Executive is terminated or resigns under this paragraph,
Executive shall be entitled to receive all accrued and unpaid incentive
compensation and other bonuses (if any) for the year in which such termination
occurs, prorated as of the date of termination. Any payments pursuant to this
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paragraph shall constitute liquidated damages and shall be Executive's sole
right to compensation in the event of a Constructive Dismissal or termination
by the Company without Cause. Executive's acceptance of each payment provided
for in this paragraph shall constitute a release of the Company, its officers,
directors and affiliates, from all claims Executive may then have against the
Company, except for the obligation of the Company to continue to make the
Severance Payment for the balance of the twelve (12) month period.
In the event of termination for Cause, Executive shall be entitled to
receive all unpaid Base Salary earned to the date of termination, but all other
rights of Executive hereunder shall terminate as of the effective date of
Executive's termination.
4.2 This Agreement shall terminate automatically upon the
death of Executive. In addition to any benefits under any insurance,
retirement or other plan of the Company for Executive, the Company shall pay
within thirty (30) days of the date of death to the Executive's legal
representatives or, if the Executive shall have filed with the Company a
designation of a person to receive such payment, such person, the sum of any
unpaid Base Salary through the date of termination and any accrued and unpaid
incentive compensation or other bonuses (if any) for the year in which such
termination occurs prorated as of the date of termination.
4.3 If, during the period of this Agreement, Executive comes
under such illness, physical or mental disability or other incapacity
("Disability") that the Board determines that he is unable to perform his
full-time duties to the Company for a period in excess of 60 substantially
consecutive days or nonconsecutive periods aggregating more than one hundred
and twenty (120) days within any six (6) month period, exclusive of Saturdays,
Sundays, holiday or days on which Executive was on vacation, the Company may
terminate the Executive by giving notice to Executive of its intention to
terminate due to Disability and this Agreement shall terminate at the end of
the month in which such notice was given. In the event of such termination,
the Company shall pay the sum of (i) any unpaid Base Salary through the date of
termination, (ii) any accrued and unpaid incentive compensation or other
bonuses (if any) for the year in which such termination occurs prorated as of
the date of termination, and (iii) the Severance Payments described in Section
4.1, minus any amounts payable to Executive under the Company's benefit plans
or insurance or social security payable.
4.4 Upon termination of this Agreement, all obligations of
the Company and rights of Executive under this Agreement shall cease, except as
otherwise provided herein.
5. Entire Agreement; Amendment. This Agreement contains the
entire understanding between the parties and supersedes, and is in lieu of, all
other agreements or arrangements relating to the subject matter hereof between
Executive and the Company. This Agreement cannot be changed, modified, or
discharged other than by an agreement in writing signed by the Company pursuant
to authorization of its Board and by Executive.
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6. Survival and Benefit. Except as otherwise herein
expressly provided, this Agreement shall inure to the benefit of and be binding
upon the Company, its successors and assigns, and Executive, his heirs,
executors, administration and legal representatives.
7. Severability. In the event that any portion of this
Agreement may be held to be invalid or unenforceable for any reason, it is
agreed that said invalidity or unenforceability shall not affect the other
portions of this Agreement and that the remaining covenants, terms and
conditions or portions thereof shall remain in full force and effect and any
court of competent jurisdiction may so modify or amend the objectionable
provision as to make it valid, reasonable and enforceable.
8. Waiver. The failure of the Company to insist, in any one
or more instances, upon performance of any of the terms or conditions of this
Agreement, shall not be construed as a waiver or relinquishment of any rights
granted hereunder or the future performance of any such term, covenant or
condition. No amendment or waiver of any provision of this Agreement shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
9. Governing Law. This Agreement shall be construed and
interpreted under and pursuant to the laws of the State of Georgia irrespective
of the fact that Executive may become a resident of another state or
jurisdiction.
10. Notices. 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 by personal delivery
(with receipt therefor) or by certified mail, return receipt requested, first
class postage prepaid, addressed to the respective addresses set forth below,
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 actual receipt:
To the Company:
Tom's Foods Inc.
000 0xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
To the Executive:
Xxxxxx X. Xxxxxx
0000 Xxxxx Xxx Xxxxx
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Xxxxxxxx, Xxxxxxx 00000
11. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
12. Section Headings. All section headings are contained
herein for convenience only and shall not be considered in the interpretation
of this Agreement.
13. Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated below:
(A) "Base Salary" shall mean Executive's then-current annual
base salary.
(B) "Board" shall mean the Board of Directors of the Company.
(C) "Cause" shall mean Executive's conviction of a felony
related to the Company's business and the performance of Executive's
assigned duties, breach of any statutory or common law duty of loyalty
to the Company, Executive's intentional failure to comply with the
terms of this Agreement, and Executive's Gross Negligence (as defined
herein) or willful misconduct in the performance of the Executive's
duties. "Gross Negligence" shall mean the absence of that degree of
care which every person of common sense, however inattentive he or she
may be, exercises under the same or similar circumstances, or such
other meaning as such term may then have under the law of the State of
Georgia.
(D) "Constructive Dismissal" shall mean a constructive
dismissal (which shall include a material diminution of the
Executive's responsibilities) of the Executive following a change in
ownership of the Company.
(E) "Company" shall mean Tom's Foods Inc., a Delaware
corporation and any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law, or
otherwise.
(F) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
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IN WITNESS WHEREOF, the Company had caused this Agreement to be
executed and Executive has executed this Agreement, all as of the day and year
first above written.
TOM'S FOODS INC.
By /s/ S. XXXXXX XXXXXX
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Name: S. Xxxxxx Xxxxxx
Title: Senior Vice President
EXECUTIVE:
/s/ XXXXXX X. XXXXXX
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