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EXHIBIT 10.9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of November
1, 1994 (the "Agreement"), between Premium Standard Farms, Inc., a Missouri
corporation (the "Company"), and Xxxx Xxxxxx (the "Employee").
WHEREAS, the Company and the Employee are parties to an
Employment Agreement dated as of December 1, 1992 (the "Old Contract") which is
terminated as of the date hereof and replaced in its entirety by this
Agreement;
WHEREAS, the Company desires to employ the Employee and to
assure itself of the continued services of the Employee for the term of
employment provided for in this Agreement, and the Employee desires to be
employed by the Company for such period, upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT AND DUTIES
1.1. General. The Company hereby employs the Employee,
and the Employee agrees to serve, as Vice President of Operations/Missouri of
the Company upon the terms and conditions herein contained. In such capacities
the Employee agrees to serve the Company faithfully and to the best of his
ability under the direction of the Co-Chairmen and President of the Company or
such other person or persons as any of them may designate. The Employee also
agrees to serve, if elected, at no compensation in addition to that provided
for in this Agreement, in the position of officer or director of any subsidiary
of the Company; provided, however, that such position shall be of no less
status relative to such subsidiary as the position that the Employee holds
pursuant to the first sentence of this Section 1.1 with respect to the Company.
1.2. Term of Employment. The Employee's employment under
this Agreement shall commence on November 1, 1994 (the "Effective Date") and
shall terminate on the earlier of (i) November 1, 1999, or (ii) termination of
the Employee's employment pursuant to this Agreement. This initial term,
however, shall be automatically extended without further action of either party
for additional one-year periods, unless written notice of either party's
intention not to extend has been given to the other party hereto at least three
months prior to the expiration of the then effective term (the period
commencing on the Effective Date and ending on November 1, 1999, or such later
date to which the term of the Employee's employment shall have been extended is
hereinafter referred to as the "Employment Term").
1.3. Duties. For the Employment Term, the Employee agrees
to render full-time service to the Company as Vice President of
Operations/Missouri, and in connection
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therewith to perform such duties, not inconsistent with the Employee's position
of Vice President of Operations/Missouri, as the Employee may be reasonably
directed to perform by the Co-Chairmen and President of the Company or such
other person or persons as any of them may designate. For purposes of this
Agreement, "full-time service" means the rendering of employment services
pursuant to the terms of this Agreement at the Company's headquarters location
in Princeton, Missouri each day during the Company's regular hours of business,
exclusive of vacations, paid sick leave, paid holidays, or authorized leaves of
absence, unless otherwise directed by the Co-Chairmen and President of the
Company or such other person or persons as any of them may designate.
2. COMPENSATION
2.1. Base Salary. From the Effective Date, the Employee
shall be entitled to receive a base salary ("Base Salary") at a rate of
$130,000.00 per annum, payable in arrears in equal installments not less
frequently than monthly in accordance with the Company's payroll practices,
with such annual increases as necessary to reflect changes in the cost of
living and with such additional increases as may be provided in accordance with
the terms hereof. Once increased, such higher amount shall constitute the
Employee's annual Base Salary.
2.2. Annual Review. The Employee's Base Salary shall be
reviewed by the Compensation Review Committee of the Company in good faith,
based upon the Employee's performance, not less often than annually, and such
Base Salary may be increased (but not decreased) upon such review during the
remainder of the Employment Term. In addition to any increases under Section
2.2, the Company at any time may in its sole discretion increase the Employee's
Base Salary.
3. EMPLOYEE BENEFITS
3.1. General. The Employee shall be included, to the
extent eligible thereunder by virtue of his position, tenure, salary, age and
other qualifications, in all employee benefit plans, programs or arrangements
(including, without limitation, any plans, programs or arrangements providing
for retirement benefits, incentive compensation, profit sharing, bonuses,
disability benefits, health and life insurance, or vacation and paid holidays)
which shall be established by the Company for, or made available to, its
employees. For purposes of the aforesaid benefit plans and other purposes of
this Agreement, the Employee's employment with the Company shall not be
terminated or interrupted by the termination of the Old Contract.
3.2. Company Car. The Employee shall continue to have the
use of a car owned or leased by the Company to be used by the Employee for the
performance of his services under this Agreement. The value of the car shall
be approximately $25,000. The Employee shall also be reimbursed for expenses
associated with the use of such vehicle in accordance with the Company's
expense reimbursement policy.
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3.3. Reimbursement of Expenses. The Company will
reimburse the Employee for reasonable travel and other business expenses
incurred by him in the fulfillment of his duties hereunder upon presentation by
the Employee of an itemized account of such expenditures, in accordance with
Company practices consistently applied.
4. TERMINATION OF EMPLOYMENT
4.1. Termination without Cause; Resignation for Good
Reason.
4.1.1. General. Subject to the provisions of Section 4.1.2
and 4.1.3, if, prior to the expiration of the Employment Term, the Employee's
employment is terminated by the Company without Cause (as defined in Section
4.3), or if the Employee resigns from his employment hereunder for Good Reason
(as defined in Section 4.4), the Company shall continue to pay the Employee his
Base Salary as of the date of termination or resignation for the lesser of (i)
one year following the date of termination or resignation or (ii) the remainder
of the Employment Term (such period, as applicable, being referred to
hereinafter as the "Severance Period"). During the Severance Period, the
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
("Employee Welfare Plans") provided to the Employee by the Company pursuant to
Section 3 above at the time of such termination or resignation and which are
provided by the Company to its employees following the date of such termination
or resignation; provided, however, that the Employee's eligibility to
participate in these Employee Welfare Plans shall end at such time as the
Employee begins to receive coverage under comparable programs of a subsequent
employer. If, during the Severance Period, the Employee is precluded from
participating in any Employee Welfare Plan by its terms or applicable law, the
Company shall provide the Employee with benefits that are reasonably equivalent
in the aggregate to those which the Employee would have received under such
plan had he been eligible to participate therein. Anything to the contrary
herein notwithstanding, the Company shall have no obligation to continue to
maintain during the Severance Period any Employee Welfare Plan solely as a
result of the provisions of this Agreement.
4.1.2. Conditions Applicable to the Severance Period. If,
during the Severance Period, the Employee materially breaches his obligations
under Section 7 of this Agreement, the Company may, upon written notice to the
Employee, terminate the Severance Period and cease to make any further
payments, or to provide any further benefits, described in Section 4.1.1.
4.1.3. Death During Severance Period. In the event of the
Employee's death during the Severance Period, the Severance Period shall
immediately cease, the Company shall not be obligated to make any further
payments pursuant to this Section 4, and the provisions of Section 5.1 shall
apply as though the Employee's death had occurred immediately prior to
termination of the Employment Term.
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4.1.4. Date of Termination. The date of termination of
employment without Cause shall be the date specified in a written notice of
termination to the Employee. The date of resignation for Good Reason shall be
the date specified in the written notice of resignation from the Employee to
the Company; provided, however, that no such written notice shall be effective
unless the cure period specified in Section 4.4 has expired without the Company
having corrected, to the reasonable satisfaction of the Employee, the event or
events subject to cure. If no date of resignation is specified in the written
notice from the Employee to the Company, the date of termination shall be the
first day following such expiration of such cure period.
4.2. Termination for Cause; Resignation Without Good
Reason.
4.2.1 General. If, prior to the expiration of the
Employment Term, the Employee's employment is terminated by the Company for
Cause, or if the Employee resigns from his employment hereunder other than for
Good Reason, the Employee shall be entitled only to payment of his Base Salary
earned through and including the date of termination or resignation. The
Employee shall have no further right to receive any other compensation, or to
participate in any other plan, arrangement, or benefit, after such termination
or resignation of employment.
4.2.2. Date of Termination. Subject to the proviso to
Section 4.3, the date of termination for Cause shall be the date of receipt by
the Employee of a written Notice of Termination provided for in Section 4.2.3.
The date of resignation without Good Reason shall be the date specified in the
written notice of resignation from the Employee to the Company, or if no date
is specified therein, 10 business days after receipt by the Company of written
notice of resignation from the Employee.
4.2.3. Notice of Termination. Termination of the Employee's
employment for Cause shall be communicated by delivery to the Employee of a
written notice from the Company, stating that in the good faith opinion of the
Company an event constituting Cause for termination in accordance with Section
4.3 has occurred and specifying the particulars thereof (a "Notice of
Termination"). For purposes of this Agreement, no purported termination of the
Employee's employment for Cause shall be effective without delivery of such
Notice of Termination.
4.3. Cause. Termination for "Cause" shall mean
termination of the Employee's employment because of (i) any willful material
violation by the Employee of any law or regulation applicable to the business
of the Company or any of its subsidiaries or the Employee's conviction for, or
guilty plea to, a felony or a crime involving moral turpitude, or any willful
perpetration by the Employee of a common law fraud, (ii) the Employee's
commission of an act involving gross negligence on the part of the Employee in
the conduct of his duties under this Agreement or any other employment or
consulting agreement with another employer having a business relationship with
the Company, (iii) the Employee's commission of an act of personal dishonesty
which involves personal profit in connection with the Company or any other
employer having a business relationship with the Company, (iv) any material
breach by the Employee of
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any provision of this Agreement or any other employment or consulting agreement
with another employer having a business relationship with the Company,
including, without limitation, the continued failure or refusal of the Employee
to perform the material duties required of him as an employee of the Company,
or (v) any other misconduct by the Employee which is materially injurious to
the financial condition or business reputation of, or is otherwise materially
injurious to, the Company or any of its subsidiaries or affiliates; provided,
however, that if any such Cause relates to the Employee's obligations under
this Agreement and (x) is susceptible to cure and (y) does not constitute a
repetition of such Cause, the Company shall not terminate the Employee's
employment hereunder unless the Company first gives the Employee a Notice of
Termination, and the Employee has not, within 10 business days following
receipt of the notice, cured such Cause, or in the event such Cause is not
susceptible to cure within such 10 business day period, the Employee has not
taken all reasonable steps within such 10 business day period to cure such
Cause as promptly as practicable thereafter.
4.4. Good Reason. For purposes of this Agreement, "Good
Reason" shall mean termination of the employment agreement by the Employee for
reason of the Company's material breach of any provision of this Agreement;
provided, however, that if any such material breach relates to the Company's
obligations under this Agreement and (x) is susceptible to cure and (y) does
not constitute a repetition of such material breach, the Employee shall not
terminate his employment hereunder unless the Employee first gives the Company
notice of its intention to terminate and of the grounds for such termination,
and the Company has not, within 10 business days following receipt of the
notice, cured such material breach, or in the event such material breach is not
susceptible to cure within such 10 business day period, the Company has not
taken all reasonable steps within such 10 business day period to cure such
material breach as promptly as practicable thereafter.
5. DEATH OR PERMANENT DISABILITY
5.1. Death. If the Employee's employment hereunder is
terminated by death, the Company shall, within 90 days of the date of death,
make a lump sum payment to the Employee's estate (or other beneficiary
designated by him in writing) equal in amount to the Base Salary as in effect
on the date of death that would have been paid to the Employee over a period of
three months. Thereafter, the Company shall have no further obligation under
this Agreement.
5.2. Permanent Disability. In the event the Employee
shall become physically or mentally disabled so that he 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 twelve-month period,
then the Company may at any time after the last day of the six consecutive
months of disability or the day on which the shorter periods of disability
equal an aggregate of six months terminate the Employment Term for "Permanent
Disability" by written notice to the Employee. The Company shall, following
such termination, continue to pay the Employee's Base Salary as then in effect
for a period of six months, and shall continue during such period the
Employee's participation in medical benefits programs then maintained for the
Company's
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employees (or shall provide reasonably equivalent benefits). The Employee will
use his reasonable best efforts to cooperate with any physician engaged by the
Company to determine whether or not Permanent Disability exists, and the
determination of such physician made in writing to the Company and the Employee
shall be final and conclusive for all purposes of this Agreement. Any payments
provided for in this Section 5.2 shall be offset (but not below zero) by any
salary continuation payments received by the Employee under any plan, program
or arrangements in which the Employee participated pursuant to Section 3 of
this Agreement. Except as provided in this Section 5.2, upon termination of
the Employment Term by virtue of the Employee's Permanent Disability, the
Company shall have no further obligation to the Employee under this Agreement.
6. OBLIGATION TO MITIGATE DAMAGES
The Employee shall not be required to mitigate the amount of
any payment provided for in Section 4.1 by seeking other employment, but the
amount of any payment provided for in Section 4.1 shall be reduced (but not
below zero) by any compensation earned by the Employee as the result of his
employment by another employer subsequent to termination or resignation of his
employment with the Company.
7. CONFIDENTIALITY
7.1. Confidentiality. The Employee covenants and agrees
with the Company that he will not at any time, except in performance of his
obligations to the Company hereunder or with the prior written consent of the
Company, directly or indirectly, disclose any secret or confidential
information that he may learn or has learned by reason of his association with
the Company or any of its subsidiaries and affiliates. The term "confidential
information" includes information not previously disclosed to the public or to
the trade by the Company's management, or otherwise in the public domain, with
respect to the Company's, or any of its affiliates' or subsidiaries', products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information (including
the revenues, costs or profits associated with any of the Company's products),
business plans, prospects or opportunities.
7.2. Exclusive Property. The Employee confirms that all
confidential information is and shall remain the exclusive property of the
Company. All business records, papers and documents kept or made by Employee
relating to the business of the Company shall be and remain the property of the
Company.
7.3. Injunctive Relief. Without intending to limit the
remedies available to the Company, the Employee acknowledges that a breach of
any of the covenants contained in this Section 7 may result in material and
irreparable injury to the Company or its affiliates or subsidiaries for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of such a breach or
threat thereof, the Company shall be entitled to obtain a temporary restraining
order and/or a preliminary or
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permanent injunction restraining the Employee from engaging in activities
prohibited by this Section 7 or such other relief as may be required
specifically to enforce any of the covenants in this Section 7. If for any
reason a final decision of any court determines that the restrictions under
this Section 7 are not reasonable or that consideration therefor is inadequate,
such restrictions shall be interpreted, modified or rewritten by such court to
include as much of the duration and scope identified in this Section 7 as will
render such restrictions valid and enforceable.
8. MISCELLANEOUS
8.1. Notices. All notices or communications hereunder
shall be in writing, addressed as follows:
To the Company:
Premium Standard Farms, Inc.
Xxxxxxx 00 Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
To the Employee:
Xxxx Xxxxxx
Xxxxxxx 00 Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Any such notice or communication shall be delivered in person, by cable, by
telecopy (with confirmation copy of such telecopied material delivered in
person or by registered or certified mail, return receipt requested) or by
certified or registered mail, return receipt requested, addressed as above (or
to such other address as such party may designate in writing from time to
time), and the actual date of receipt, as shown by the receipt therefor, shall
determine the time at which notice was given.
8.2. Severability. If a court of competent jurisdiction
determines that any term or provision hereof is invalid or unenforceable, (a)
the remaining terms and provisions hereof shall be unimpaired and (b) such
court shall have the authority to replace such invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision.
8.3. Disputes. Any disputes between the parties to this
Agreement shall be settled by arbitration in Kansas City, Missouri under the
auspices of, and in accordance with the rules of, the American Arbitration
Association. The decision in such arbitration shall be final
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and conclusive on the parties and judgment upon such decision may be entered in
any court having jurisdiction thereof. Pending resolution of any dispute, any
amounts payable pursuant to the terms of the Agreement shall be set aside by
the Company in an escrow account. Upon resolution of the dispute, such amounts
held in the escrow account shall be paid to the appropriate party.
8.4. Entire Agreement. This Agreement represents the
entire agreement of the parties and shall supersede any and all previous
contracts, arrangements or understandings between the Company and the Employee,
including, without limitation, the Old Contract. The Agreement may be amended
at any time by mutual written agreement of the parties hereto.
8.5. Withholding. The Company shall be entitled to
withhold, or cause to be withheld, from payment any amount of withholding taxes
required by law with respect to payments made to the Employee in connection
with his employment hereunder.
8.6. Governing Law. This Agreement shall be construed,
interpreted, and governed in accordance with the laws of Missouri without
reference to rules relating to conflict of law.
8.7. Successors. This Agreement shall be binding upon and
inure to the benefit of, and shall be enforceable by the Employee and the
Company, their respective heirs, executors, administrators and assigns. In the
event the Company is merged, consolidated, liquidated by a parent corporation,
or otherwise combined into one or more entities, the provisions of this
Agreement shall be binding upon and inure to the benefit of the parent
corporation or the entity resulting from such merger or to which the assets
shall be sold or transferred, which entity from and after the date of such
merger, consolidation, sale or transfer shall be deemed to be the Company for
purposes of this Agreement. In the event of any other assignment of this
Agreement by the Company, by operation of law or otherwise, the Company shall
remain primarily liable for its obligations hereunder. This Agreement shall
not be assignable by the Employee.
8.8. Headings. The headings of sections herein are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
8.9. Counterparts. This Agreement may be executed by
either of the parties hereto in counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
8.10 Authority. The Company represents and warrants that
the signatory party hereto on behalf of the Company is a duly appointed officer
of the Company acting pursuant to the power and authority granted to such
officer by the Board of Directors of the Company. The Company further
represents that the execution of this Agreement on behalf of the Company by
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a single signatory party with such power and authority shall be deemed binding
upon the Company.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Employee has hereunto set his hand, as of the day and year
first above written.
PREMIUM STANDARD FARMS, INC.
By: /s/ Xxxxxx Xxxxx
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Title: President
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EMPLOYEE
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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