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Exhibit 10.3
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (Amendment) is entered into
effective the 1st day of January 1995, by and between NEBCO XXXXX DISTRIBUTION,
INC., a Nebraska corporation (Employer) and XXXXXXX X. XXXXXXXX (Employee).
WHEREAS, Employer and Employee entered into an Employment Agreement as of
December 23, 1986 (Employment Agreement); and
WHEREAS, said Employment Agreement has been informally extended to the
effective date hereof at increased compensation with Employee's title being that
of President and Chief Operating Officer; and
WHEREAS, Employer and Employee desire to embody in a written agreement the
amended terms and conditions under which the Employee shall be employed by
Employer from and after the Effective Date.
NOW, THEREFORE, in consideration of the mutual benefits, obligations,
covenants and promises herein contained, and intending to be legally bound
hereby, the parties agree as follows:
1. The Employment Agreement is amended as of the Effective Date hereof as
follows:
a) Title/Duties. Employer shall employ Employee as an Executive with
Employee initially having the title of President and Chief Operating Officer.
Employee acknowledges that his current job title may be changed in the
discretion of the Employer's Board of Directors as acquisitions of additional
operating units may be accomplished. Employer acknowledges that regardless of
any change of Employee's title, Employee's duties shall be in the nature of
those entrusted to a senior executive officer.
b) Term. The term of this Employment Agreement shall commence as of
the Effective Date hereof and end at the close of business on the third
anniversary date of the Effective Date hereof unless sooner terminated in
accordance with the provisions
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of Article IV of the Employment Agreement or extended as provided for herein.
The term shall be renewed for a period of one (1) year ending at the close of
business on the fourth anniversary date of the Effective Date of this Amendment
(subject to earlier termination under Article IV of the Employment Agreement),
unless the Employer gives notice in writing to the Employee of its intention not
to renew his employment for such one (1) year term on or before the second
anniversary date of the Effective Date of this Amendment. The term shall be
renewed for successive one (1) year periods in a like manner (always subject to
earlier termination under Article IV of the Employment Agreement), unless the
Employer gives notice in writing to the Employee of its intention not no renew
his employment for such one (1) year term more than two (2) years prior to the
first day of such one (1) year renewal term. The term of this Amendment,
including any renewal term, shall hereinafter be referred to as the "Term".
c) Compensation.
(i) salary. The Employer shall pay the Employee during the Term a
base salary at the rate of Two Hundred Ten Thousand Dollars ($210,000.00) per
annum, or such greater rate as the Employer's Board of Directors may hereafter
determine on an annual basis, payable in accordance with the Employer's payroll
procedure as presently in effect or as hereafter amended from time to time, less
such deductions as shall be required to be withheld by applicable law and
regulations.
(ii) Annual CPI Adjustment. The Employee's base salary shall be
adjusted annually on a calendar year basis in accordance with the change in the
Consumer Price Index for all urban consumers (CPI-U) with the base period of
December 1994. The first such adjustment to Employee's base salary shall be for
calendar year 1996.
(iii) Annual Bonus. The Employee shall be entitled to an annual
bonus for the fiscal year of the corporation ending on the 31st day of December,
1994 and for each subsequent fiscal year (52/53 week year) during the Term, in
each event payable on March
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1 immediately following the last day of the Employer's fiscal year. The annual
bonus shall be calculated using the Employer's "reported basis" statements and
no adjustment shall be made in the calculation of Reported Operating Profit
except that if the Employer's profit & loss statement is supported in any way by
the Employer's parent, the Employee shall benefit from such support. The formula
for determining the annual bonus is set forth hereinbelow.
(iv) Bonus Formula. The Employee's annual bonus shall be determined
in good faith by the Chairman of the Board of Directors of the Employer after
first considering the amount by which Reported Operating Profit exceeds then
current reasonable return on the Employer's invested capital. The annual bonus
due Employee for a fiscal year may exceed Employee's salary as adjusted by the
CPI-U for such fiscal year. The annual bonus shall be consistent with past
practices and subject to satisfactory performance of the business of Employer.
Employee shall have the right to suggest an amount which Employee believes would
be an appropriate annual bonus.
(v) In the event an Annual Bonus shall be payable with respect to a
period in the fiscal year in which the Term expires that is less than an entire
fiscal year, the Annual Bonus for such period shall be a prorata bonus
determined by multiplying the Annual Bonus which the Employee would have
received for the entire fiscal year in which the Term expires, by a fraction,
the numerator of which shall be the number of days in that calendar year
preceding the expiration of the Term and the denominator of which shall be 365.
2. Effective Date. The Effective Date of this Amendment shall be January
1, 1995.
3. Reaffirmation. In all other respects, Employer and Employee hereby
reaffirm the provisions of Employee's original Employment Agreement as if the
same had been executed on the Effective Date hereof.
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4. Authorization. Employer hereby represents that the provisions of the
above Amendment have been authorized by its Board of Directors.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Employment Agreement an of the Effective Date hereof.
NEBCO XXXXX DISTRIBUTION, INC.,
Employer
By /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX, Employee
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the 23rd day of December, 1986, is made
by and between Nebco Distribution of Omaha, Inc., a Nebraska corporation
("Employer"), and Xxxxxxx Xxxxxxxx ("Employee").
This Agreement shall be effective only upon the acquisition by Nebco
a.s, a Norwegian corporation ("Nebco a.s"), of the entire equity interest in
Employer (the "Effective Date"), and if Nebco a.s does not acquire the entire
such interest, this Agreement shall be void and of no effect whatsoever.
Employer and Employee desire to embody in a written agreement the
terms and conditions under which the Employee shall be employed by Employer
after the Effective Date.
Accordingly, in consideration of the mutual benefits, obligations,
covenants and promises herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows;
I. EMPLOYER AGREES:
1. To employ Employee as President and Chief
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Executive Officer for a period of three years, commencing on the Effective Date,
at an annual compensation of $90,000 in 1987, $100,000 in 1988, and $110,000
in 1989. To pay Employee an additional annual bonus the amount of which will be
based on a new bonus system that Employer expects to adopt within the next six
months, provided that under such bonus system Employee is expected to receive
not less than he has received under previous bonus plans of the Employer,
subject to satisfactory performance of the business of Employer.
2. In addition to this annual compensation, to grant to Employee at
the Effective Date a non-qualified option to purchase 3,000 shares of common
stock of Employer upon the terms and subject to the conditions set forth in a
Non-Qualified Option Agreement in the form annexed hereto as Exhibit A.
3. During such employment, to provide Employee with holiday,
vacation, group medical, disability and life insurance coverage and any other
fringe benefits as Nebco may in its sole discretion from time to time elect to
make available to Employee; provided that such benefits, taken as a whole, will
be at least comparable to those that he currently receives.
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4. To reimburse Employee for the initiation fees (not to exceed
$l8,000), dues or other expenses reasonably incurred by him at one country club
joined by him in order to promote the Employer's business. Employee shall
immediately select and apply for membership at Omaha Country Club, Happy Hollow
Country Club or Highland Country Club after consultation with Xxxxxx X. Xxxxxx.
II. EMPLOYEE AGREES:
1. To perform such management and employment duties as are
customarily performed by senior executives and may reasonably be requested.
2. To accept employment by Employer upon the terms and conditions
set forth in this Agreement, to the exclusion of all other employment, and
during the term of employment to undertake no planning for or organization of
any business activity competitive with the business of Employer.
3. To devote Employee's full time and best efforts in good faith to
performance hereunder, and not actively to engage in any other business in any
capacity whatsoever except upon the written approval of the Board of Directors
of Employer, to whom Employee shall from time to time report; provided, that,
subject to Section V.5 hereof,
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Employee shall not be prevented hereby from investing his assets in a manner
that will not detract from his ability to fulfill his duties hereunder.
4. To take no intentional action contrary to the best interest of
Employer.
5. To, in good faith and at all times during the term of this
Agreement, comply with all existing rules, customs, policies and procedures of
Employer, as they may be changed from time to time.
III. CONFIDENTIAL INFORMATION, POST-EMPLOYMENT COMPETITION:
1. Employee has been an employee of Employer, and in such capacity
acquired knowledge of Employer's business systems, techniques and methods of
operation that are unique assets of Employer's business. Employee shall not,
during or after the term of the employment, directly or indirectly, in any
manner utilize or disclose to any person, firm, corporation, association or
other entity, except where required by law: (a) any such systems, techniques and
methods of operation, or (b) any sales prospects, customer lists, products,
research or data of any kind, or (c) any information relating to strategic
plans, sales costs, profits or the financial condition of Employer or any of its
customers or prospective customers, that are not generally known to the
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public or recognized as standard practice in the industries in which Nebco
shall be engaged. Business systems shall include but not be limited to policy
and procedure manuals, computer programs, financial forms and information,
supplier information, recipes, accounting forms and procedures, personnel
policies and information on the needs of clients, all of which information is
not publicly disclosed and is considered by Employer to be confidential trade
secrets.
2. Employee agrees that all business systems, techniques and methods
of operation developed by him, and all product developments made by him, in the
course of his work for Employer, and any rights acquired by him in the course of
such work, shall inure to and be the property of Employer, and Employee shall
cause appropriate assignments in respect thereof to be made and delivered to
Employer upon Employer's request.
3. Subject to the provisions of paragraph 4 of this article,
Employee, for a period of one year following termination of his employment,
shall not, without Employer's written permission, directly or indirectly, on
Employee's behalf or on behalf of any other person, firm, corporation,
association or other entity, engage in or in any way be concerned with or
negotiate for, or acquire or maintain any ownership interest in, any business or
activity that is the
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same, similar to or competitive with that conducted by, engaged in or developed
for later implementation by Employer at any time during the term of Employee's
employment.
4. The provisions set forth in paragraph 3 above shall apply to all
fifty states and, in addition, to each foreign country, possession or territory,
in which Nebco may be engaged in business at the termination of Employee's
employment or at any time within 12 months prior thereto.
5. Employee further agrees that Employee shall not for a period of
one year following termination of his employment, directly or indirectly, at any
time in any manner, induce or attempt to influence any employees of Employer to
terminate their employment with Employer.
6. Employee acknowledges that in the event of any violation by
Employee of the provisions set forth in this article, Employer will sustain
serious, irreparable and substantial harm to its business, the extent of which
will be difficult to determine and impossible to remedy by an action at law for
money damages. Accordingly, Employee agrees that, in the event of such violation
or threatened violation by Employee, Employer shall be entitled to an injunction
before trial from any court of competent jurisdiction as a matter of course upon
the posting of not more than a nominal bond, in addition to all such other legal
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equitable remedies as may be available to Employer. Employee further agrees
that, in the event any of the provisions of this Agreement are determined by a
court or competent jurisdiction to be contrary to any applicable statute, law or
rule, or for any reason unenforceable as written, such court may modify any of
such provisions so as to permit enforcement thereof as thus modified.
IV. EFFECTIVENESS; TERMINATION:
1. This Agreement shall be effective at the Effective Date.
2. In the event of Employee's death, this Agreement shall
automatically terminate.
3. "Good and Sufficient Cause" shall mean intentionally engaging in
acts of dishonesty or other conduct intended to be injurious to the business of
Employer, conviction of a felony or the willful and material failure to perform
the employee's duties and to correct such failure after warning.
V. GENERAL PROVISIONS:
1. Employee's initial assignment and title hereunder may not
necessarily be continued and, after consultation with Employee aimed at reaching
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arrangement, Employer may assign Employee to a city other than Omaha, Nebraska.
2. The term "Employer", as used in this Agreement, shall also
include Employer's subsidiaries or affiliates, if any, on whose payroll Employee
is carried from time to time under this Agreement, and with respect to
Employee's duties, obligations and restrictions, shall also include all
subsidiaries and affiliated corporations, as the same may exist from time to
time.
3. If at the time this Agreement is entered into, Employee is
currently employed by Employer at will or under other terms and conditions,
whether written or oral, the parties agree: that this Agreement shall supersede
and be substituted for all such employment agreements on the Effective Date, and
that this Agreement is entered into in consideration of the mutual undertakings
of the parties, the cancellation of all previous employment contracts, and the
release by the parties of their respective rights and obligations under any
previous employment contracts excepting only such rights and obligations which
by their nature are intended to survive termination or cancellation of such
employment contract or relationship.
4. This is a severable Agreement. In the event any portions hereof
(particularly portions relating to
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restrictions against competition and the enforcement thereof) are held to be
unenforceable to any extent under the law of any state, it is the intention of
the parties that such portion(s) be enforced to the full extent permitted under
the law of such state, and shall remain enforceable in all other states, and in
any event, that all other parts of this Agreement shall remain valid and fully
enforceable as if the unenforceable part or parts had never been a part hereof.
Further, the part or parts of this Agreement relating to
restrictions against competition by Employee and the enforcement of such part
or parts shall be construed as a covenant independent of any other provision in
this Agreement and the existence of any claim or cause of action by Employee
against Employer, whether based upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by Nebco of the part or parts relating
to restrictions against competition by Employee.
5. Employee may acquire and hold up to 2% of the outstanding stock
of a corporation that is a supplier or that engages in any business in which
Employer is engaged, if such shares of stock are available to the general public
on a national or regional securities exchange or in the over-the-counter
securities markets. Otherwise, Employee
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may not own any shares of or any interest in any entity that is a supplier of
Employer or with which Employer does business.
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6. This Agreement contains the entire agreement between the parties.
No change, addition or amendment shall be made except by written agreement
executed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first set forth above.
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
NEBCO DISTRIBUTION
OF OMAHA, INC.
By: /s/ [Illegible]
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