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EXHIBIT 10.99
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of this 31st day of December,
1995, by and between XXXXXXX FOODS, INC., a Delaware corporation (hereinafter
referred to as "Xxxxxxx Foods") and XXXX X. XXXXXXX (hereinafter referred to
as "Goucher").
WHEREAS, Goucher has served as President of X. X. Xxxxxxxx Company
since March 1993; and
WHEREAS, Xxxxxxx Foods and Goucher have agreed to enter into this
Agreement effective as of January 1, 1996.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties agree that this Agreement is effective as of January 1,
1996 as follows:
1. EMPLOYEMENT AND DUTIES. Xxxxxxx Foods shall employ Goucher to
serve as President of X. X. Xxxxxxxx Company and in such capacity
Goucher shall perform such duties as the Bylaws provide and as the CEO
of Xxxxxxx Foods may from time to time determine.
2. TERM. This Agreement shall be effective as of January 1, 1996 and
shall continue through December 31, 1997, unless earlier terminated as
provided herein. This Agreement may be extended thereafter upon the
written agreement of the parties hereto.
3. BASE SALARY. For all services rendered by Xxxxxxx, Xxxxxxx Foods
agrees to pay to Goucher an annual Base Salary for each of the calendar
years of this Agreement from January 1, 1996 through December 31, 1997
of at least $188,000 payable in substantially equal semi-monthly
installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. For each calendar year during the term of this Agreement,
Goucher shall be entitled to participate in the Executive Incentive
Compensation Plan of Xxxxxxx Foods. Any Incentive Compensation or
Options earned under said Plan shall be determined and paid or
granted in accordance with the Plan.
b. Xxxxxxx Foods shall provide Goucher with medical insurance and
shall permit Goucher to participate in other fringe benefit plans
as Xxxxxxx Foods may from time to time establish for its executive
officers. The terms of said benefits shall be no less generous
than those offered to other executive officers of Xxxxxxx
Foods.
x. Xxxxxxx is entitled to take vacations at reasonable times and
for customary and reasonable lengths of time consistent with his
overall responsibilities as President of X. X. Xxxxxxxx Company.
d. Michael Foods shall reimburse Goucher for all reasonable
expenses incurred by Goucher in connection with Xxxxxxx Foods'
business, including but not limited to,
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expenses of travel and entertainment, upon presentation of itemized
statements therefor.
5. EVENTS OF TERMINATION. The employment of Goucher hereunder shall
terminate as follows.
a. Upon the Incapacity or death of Goucher;
b. Upon thirty (30) days' written notice by either party, other
than as provided in sub-paragraphs c. and d., below;
c. Without notice by Xxxxxxx Foods for Cause; or
d. By Xxxxxxx Foods without Cause if there is a Change in Control
of Xxxxxxx Foods and thereafter Xxxxxxx'x Duties are
Substantially Reduced or Negatively Altered without his prior
written consent.
"Cause" for purposes hereof shall mean a determination by Xxxxxxx Foods
that Goucher has (i) committed an illegal or dishonest act that
directly reflects upon his fitness to act as President of X. X.
Xxxxxxxx Company; (ii) intentionally breached his fiduciary obligations
to Xxxxxxx Foods; or (iii) refused or is unable to perform his duties
hereunder, other than as a result of illness or disability, for a
period of thirty (30) days.
"Incapacity" for purposes hereof shall mean a determination by Xxxxxxx
Foods in its sole discretion that Goucher is unable to perform his job
responsibilities as President of X. X. Xxxxxxxx Company as a result of
chronic illness, physical, mental or any other disability for a period
of six (6) months or more.
If Xxxxxxx'x employment is terminated under subsection (a) or by
Xxxxxxx Foods under subsection (b), Goucher shall receive as a
termination payment an amount equal to one year's Base Salary, plus
any Incentive Compensation earned for any year prior to the year of
termination which is unpaid at the date of termination. Such
termination payment shall be made in substantially equal monthly
installments beginning on the first day of the month following
termination of employment for twelve (12) months. If Xxxxxxx'x
employment is terminated by Goucher under subsection (b), Goucher shall
receive no termination payment; however, Goucher will be entitled to
receive any Incentive Compensation earned for any year prior to the
year of termination which is unpaid at the date of termination. Any
Incentive Compensation earned for any year prior to the year of
termination which is unpaid at the date of termination shall be due and
payable in full within 15 days of the determination by the Board of
Directors of the amount of Incentive Compensation to which Goucher is
entitled to receive, but in no event shall the date of payment be more
than 90 days following termination of employment. If Xxxxxxx Foods
terminates Goucher under subsection (c) above, no amount shall be paid
beyond the last day of service by Goucher and Goucher shall not be
deemed to have earned any Incentive Compensation or Options for the
year of termination. In the case of Incapacity or death, or
termination by Xxxxxxx Foods without Cause in accordance
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with sub-paragraphs a., b. and d. above, all options to purchase common
stock previously granted to Goucher shall become fully vested and not
subject to Xxxxxxx'x forfeiture.
If Xxxxxxx'x employment is terminated by Xxxxxxx Foods under subsection
(d), Goucher shall receive as a termination payment an amount equal to
two year's Base Salary, plus any Incentive Compensation earned for any
year prior to the year of termination which is unpaid at the date of
termination. Such termination payment shall be made in a lump sum
within 15 days following termination of employment.
"Change in Control" means a Change in Control of Xxxxxxx Foods of a
nature that would be required to be reported in response to Item 1(a)
of Xxxxxxx Food's Current Report on Form 8-K, as in effect on the
effective date of this agreement, pursuant to Section 13 of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that,
without limitation, such a Change in Control shall be deemed to have
occurred at such time as any "person" within the meaning of Section
14(d) of the Exchange Act, other than Xxxxxxx Foods, a subsidiary of
Xxxxxxx Foods or any employee benefit plan sponsored by Xxxxxxx Foods
or a subsidiary of Xxxxxxx Foods, acquires (1) the power to elect,
appoint or cause the election or appointment of at least a majority of
the members of the Board of Directors of Xxxxxxx Foods through the
acquisition of beneficial ownership of capital stock of Xxxxxxx Foods
or otherwise, or (2) all, or substantially all, of the properties and
assets of Xxxxxxx Foods; provided, however, that a Change in Control
shall not be deemed to have occurred if (x) the acquisition of such
power or properties and assets is pursuant to a merger, consolidation,
or sale of properties and assets and (y) by reason of such transaction
no person, or related persons constituting a "group" for purposes of
Section 13(d) of the Exchange Act shall acquire the power to elect,
appoint or cause the election or appointment of a majority of the
members of the Board of Directors of such successor or transferee.
"Duties and Substantially Reduced or Negatively Altered" means, after
any Change in Control and without Xxxxxxx'x express written consent:
(i) the assignment to Goucher of any duties inconsistent with Xxxxxxx'x
position, duties, responsibilities and status with Xxxxxxx Foods
immediately prior to a Change in Control, or a change in Xxxxxxx'x
reporting responsibilities, titles or offices as in effect immediately
prior to a Change in Control, or any removal of Goucher from, or any
failure to re-elect Goucher to, any of such positions, except in
connection with the termination of Xxxxxxx'x employment for Cause, upon
the Incapacity or death of Goucher, or upon the voluntary termination
by Goucher,
(ii) a reduction in Xxxxxxx'x base salary in effect immediately prior
to any Change in Control; or the failure by Xxxxxxx Foods to increase
such base salary each year after a Change in Control by an amount which
at least equals, on a percentage basis, the mean average percentage
increase in base salary for all employees similarly situated during the
two (2) full calendar years immediately preceding a Change in Control;
(iii) Xxxxxxx Foods requiring Goucher to be based anywhere other than
the geographic location at which Goucher was based immediately
preceding the Change
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in Control except for required travel on business to an extent
substantially consistent with the business travel obligations Goucher
experienced immediately preceding a Change in Control;
(iv) the failure by Xxxxxxx Foods to continue in effect benefit and
compensation plans substantially equivalent to the benefit or
compensation plans or arrangements in which Goucher was participating
immediately preceding any Change in Control; the taking of any action
by Xxxxxxx Foods not required by law which would adversely affect
Xxxxxxx'x participation in or materially reduce Xxxxxxx'x benefits
under any of such plans or deprive Goucher of any material fringe
benefit enjoyed by Goucher at the time of the Change of Control, but
this provision shall not apply to any stock option plan maintained by
Xxxxxxx Foods prior to the Change in Control; or the failure by Xxxxxxx
Foods to provide Goucher with the number of paid vacation days,
holidays and personal days to which Goucher was then entitled in
accordance with Xxxxxxx Foods' normal leave policy in effect
immediately preceding a Change in Control.
6. ADDITIONAL DOCUMENTS. The parties shall each, without further
consideration, execute such additional documents as may be reasonably
required in order to carry out the purposes and intent of this Agreement
and to fulfill the obligations of the respective parties hereunder.
7. WAIVER. Any waiver of any term of condition of this Agreement shall
not operate as a waiver of any other breach of such term or condition, or
of any other term or condition, nor shall any failure to enforce a
provision hereof operate as a waiver of such provisions or of any other
provision hereof.
8. NOTICES. All communications with respect to this Agreement shall be
considered given if delivered or sent as follows:
a. To Goucher by first class, certified mail, postage prepaid, return
receipt requested, addressed as follows:
XXXX X. XXXXXXX
0000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
b. To Xxxxxxx Foods by first class, certified mail, postage prepaid,
return receipt requested, addressed, as follows:
Xxxxxxx Foods, Inc.
0000 Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
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or mailed to such other addresses as the parties hereto may designate by
notice given in like manner. Notice shall be effective three (3) days
after mailing or upon personal delivery.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of
the parties hereto with respect to the subject matter hereof and no party
shall be liable or bound to another in any manner by any warranties,
representations or guarantees, except as specifically set forth herein.
10. MODIFICATIONS, AMENDMENTS AND WAIVERS. The parties hereto at any
time may by written agreement extend or modify this Agreement. This
agreement shall not be altered or otherwise amended except pursuant to an
instrument in writing executed by the parties hereto.
11. SEVERABILITY. No finding or adjudication that any provision of this
Agreement is invalid or unenforceable shall affect the validity or
enforceability of the remaining provisions herein, and this Agreement
shall be construed as though such invalid or unenforceable provisions were
omitted.
12. MISCELLANEOUS.
a. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective legal representatives,
successors and assigns of the party thereto.
b. This Agreement is made pursuant to and shall be construed under
the laws of the State of Minnesota.
c. This Agreement may be executed in one or more counterparts and
each of such counterparts shall for all purposes be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the date and
year above written.
XXXXXXX FOODS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Its PRESIDENT/CEO
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/s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX
