AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of this 31st day of January,
1994 with Amendment No. 1 made and entered into as of the 31st day of December,
1994 and Amendment No. 2 made and entered into the 31st day of December, 1995
and as further amended the 31st day of December, 1997 by and between ▇▇▇▇▇▇▇
FOODS, INC., a Minnesota corporation (hereinafter referred to as "▇▇▇▇▇▇▇
Foods") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (hereinafter referred to as "▇▇▇▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇▇▇▇ has served as Chief Operating Officer of ▇▇▇▇▇▇▇
Foods from February 1993 through December 1993; and
WHEREAS, ▇▇▇▇▇▇▇▇▇ has served as President and Chief Executive Officer
of ▇▇▇▇▇▇▇ Foods since December 1993; and
WHEREAS, ▇▇▇▇▇▇▇ Foods wishes to retain the full-time services of
▇▇▇▇▇▇▇▇▇ as President and Chief Executive Officer of ▇▇▇▇▇▇▇ Foods; and
WHEREAS, ▇▇▇▇▇▇▇ Foods and ▇▇▇▇▇▇▇▇▇ have agreed to enter into this
Agreement effective as of January 1, 1994.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties agree as follows:
1. EMPLOYMENT AND DUTIES. ▇▇▇▇▇▇▇ Foods shall employ ▇▇▇▇▇▇▇▇▇ to serve
as President and Chief Executive Officer of ▇▇▇▇▇▇▇ Foods and in such capacity
▇▇▇▇▇▇▇▇▇ shall perform such duties as the Bylaws provide and as the Board of
Directors of ▇▇▇▇▇▇▇ Foods may from time to time determine. ▇▇▇▇▇▇▇▇▇ shall
devote his full time and efforts to the business of ▇▇▇▇▇▇▇ Foods. ▇▇▇▇▇▇▇▇▇
shall also serve, at the request of ▇▇▇▇▇▇▇ Foods, as a Director of ▇▇▇▇▇▇▇
Foods and each of its subsidiaries.
2. TERM. This Agreement shall be effective as of January 1, 1994 and
shall continue through December 31, 1997, unless earlier terminated as provided
herein. This Agreement is hereby extended automatically and shall continue for
successive two-year terms unless otherwise terminated in accordance with Section
5.
3. BASE SALARY. For all services rendered by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Foods
agrees to pay to ▇▇▇▇▇▇▇▇▇ an annual Base Salary for each of the calendar years
of this Agreement from January 1, 1998 an amount of at least $405,000 payable in
substantially equal semi-monthly installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. On or before February 15, 1994, ▇▇▇▇▇▇▇ Foods shall deliver
to ▇▇▇▇▇▇▇▇▇ a non-qualified stock option to purchase 20,000 shares of
▇▇▇▇▇▇▇
Foods Common Stock. The date of grant of such option shall be deemed to
be January 3, 1994 and the exercise price shall be determined in
accordance with the ▇▇▇▇▇▇▇ Foods Non-Qualified Stock Option Plan as of
the close of business on that date.
b. For each calendar year during the term of this Agreement,
▇▇▇▇▇▇▇▇▇ shall be entitled to participate in the Executive Incentive
Compensation Plan of ▇▇▇▇▇▇▇ Foods. Any Incentive Compensation or
Options earned under said Plan shall be determined and paid or granted
in accordance with the Plan.
c. Michael Foods shall provide ▇▇▇▇▇▇▇▇▇ with medical
insurance and shall permit ▇▇▇▇▇▇▇▇▇ to participate in other fringe
benefit plans as ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
Foods.
▇. ▇▇▇▇▇▇▇▇▇ is entitled to take vacations at reasonable times
and for customary and reasonable lengths of time consistent with his
overall responsibilities as President and Chief Executive Officer of
▇▇▇▇▇▇▇ Foods.
e. Michael Foods shall reimburse ▇▇▇▇▇▇▇▇▇ for all reasonable
expenses incurred by ▇▇▇▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇ Foods'
business, including but not limited to expenses of travel and
entertainment, upon presentation of itemized statements therefor.
f. On or before January 3, 1995, ▇▇▇▇▇▇▇ Foods shall deliver
to ▇▇▇▇▇▇▇▇▇ a non-qualified stock option to purchase 40,000 shares of
▇▇▇▇▇▇▇ Foods Common Stock. The date of grant of such option shall be
deemed to be January 3, 1995 and the exercise price shall be determined
in accordance with the ▇▇▇▇▇▇▇ Foods Non-Qualified Stock Option Plan as
of the close of business on that date, or $10.00 per share, whichever
is greater.
g. On or before January 2, 1996, ▇▇▇▇▇▇▇ Foods shall deliver
to ▇▇▇▇▇▇▇▇▇ a non-qualified stock option to purchase 40,000 shares of
▇▇▇▇▇▇▇ Foods Common Stock. The date of grant of such option shall be
deemed to be January 2, 1996 and the exercise price shall be determined
in accordance with the ▇▇▇▇▇▇▇ Foods Non-Qualified Stock Option Plan as
of the close of business on that date, or $10.00 per share, whichever
is greater.
h. On or before March 5, 1998, ▇▇▇▇▇▇▇ Foods shall deliver to
▇▇▇▇▇▇▇▇▇ a non-qualified stock option to purchase 68,500 shares of
▇▇▇▇▇▇▇ Foods Common Stock. The date of grant of such option shall be
deemed to be December 31, 1997 and the exercise price shall be
determined in accordance with the ▇▇▇▇▇▇▇ Foods Non-Qualified Stock
Option Plan as of the close of business on that date, which was $24.375
per share.
5. EVENTS OF TERMINATION. The employment of ▇▇▇▇▇▇▇▇▇ hereunder shall
terminate as follows:
a. Upon the Incapacity or death of ▇▇▇▇▇▇▇▇▇;
b. Upon thirty (30) days' written notice by either party; or
c. Without notice by ▇▇▇▇▇▇▇ Foods for Cause.
"Cause" for purposes hereof shall mean a determination by ▇▇▇▇▇▇▇ Foods
that ▇▇▇▇▇▇▇▇▇ has (i) committed an illegal or dishonest act that directly
reflects upon his fitness to act as President and Chief Executive Officer; (ii)
intentionally breached his fiduciary obligations to ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
Foods in its sole discretion that ▇▇▇▇▇▇▇▇▇ is unable to perform his job
responsibilities as President and Chief Executive Officer as a result of chronic
illness, physical, mental or any other disability for a period of six (6) months
or more.
If ▇▇▇▇▇▇▇▇▇'▇ employment is terminated under subsection (a) or by
▇▇▇▇▇▇▇ Foods under subsection (b), ▇▇▇▇▇▇▇▇▇ shall receive as a termination
payment all amounts due under this agreement which is defined as two years' Base
Salary, plus ▇▇▇▇▇▇▇▇▇ shall receive fifty percent (50%) of that Base Salary
amount in lieu of any Incentive Compensation or Options for that two-year
period, 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 twenty-four (24)
months. If ▇▇▇▇▇▇▇▇▇'▇ employment is terminated by ▇▇▇▇▇▇▇▇▇ under subsection
(b), ▇▇▇▇▇▇▇▇▇ shall receive no termination payment; however, ▇▇▇▇▇▇▇▇▇ 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. If ▇▇▇▇▇▇▇ Foods
terminates ▇▇▇▇▇▇▇▇▇ under subsection (c) above, no amount shall be paid beyond
the last day of service by ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Foods without Cause, all
options to purchase common stock previously granted to ▇▇▇▇▇▇▇▇▇ shall become
fully vested and not subject to forfeiture.
For purposes of this Section 5, this Agreement and ▇▇▇▇▇▇▇▇▇'▇
employment hereunder shall be deemed terminated by ▇▇▇▇▇▇▇ Foods without Cause
if, after the date hereof there is a Change in Control of ▇▇▇▇▇▇▇ Foods and
thereafter ▇▇▇▇▇▇▇▇▇'▇ Duties are Substantially Reduced or Negatively Altered
without his prior written consent.
"Change in Control" means a Change in Control of ▇▇▇▇▇▇▇ Foods of a
nature that would be required to be reported in response to Item 1(a) of ▇▇▇▇▇▇▇
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 ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); 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 ▇▇▇▇▇▇▇ Foods, a subsidiary of ▇▇▇▇▇▇▇ Foods or any
employee benefit plan sponsored by ▇▇▇▇▇▇▇ Foods or a subsidiary of ▇▇▇▇▇▇▇
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
▇▇▇▇▇▇▇ Foods through the acquisition of beneficial ownership of capital stock
of ▇▇▇▇▇▇▇ Foods or otherwise, or (2) all, or substantially all, of the
properties and assets of ▇▇▇▇▇▇▇ 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 ARE SUBSTANTIALLY REDUCED OR NEGATIVELY ALTERED" means, after
any Change in Control and without ▇▇▇▇▇▇▇▇▇'▇ express written consent:
(i) the assignment to ▇▇▇▇▇▇▇▇▇ of any duties inconsistent with
▇▇▇▇▇▇▇▇▇'▇ positions, duties, responsibilities and status with ▇▇▇▇▇▇▇ Foods
immediately prior to a Change in Control, or a change in ▇▇▇▇▇▇▇▇▇'▇ reporting
responsibilities, titles or offices as in effect immediately prior to a Change
in Control, or any removal of ▇▇▇▇▇▇▇▇▇ from, or any failure to re-elect
▇▇▇▇▇▇▇▇▇ to, any of such positions, except in connection with the termination
of ▇▇▇▇▇▇▇▇▇'▇ employment for Cause, upon the Incapacity or death of ▇▇▇▇▇▇▇▇▇,
or upon the voluntary termination by ▇▇▇▇▇▇▇▇▇;
(ii) a reduction in ▇▇▇▇▇▇▇▇▇'▇ base salary in effect immediately prior
to any Change in Control; or the failure by ▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇ Foods requiring ▇▇▇▇▇▇▇▇▇ to be based anywhere other than
the geographic location at which ▇▇▇▇▇▇▇▇▇ was based immediately preceding the
Change in Control except for required travel on business to an extent
substantially consistent with the business travel obligations ▇▇▇▇▇▇▇▇▇
experienced immediately preceding a Change in Control;
(iv) the failure by ▇▇▇▇▇▇▇ Foods to continue in effect benefit and
compensation plans substantially equivalent to the benefit or compensation plans
or arrangements in which ▇▇▇▇▇▇▇▇▇ was participating immediately preceding any
Change in Control; the taking of any action by ▇▇▇▇▇▇▇ Foods not required by law
which would adversely affect ▇▇▇▇▇▇▇▇▇'▇ participation in or materially reduce
▇▇▇▇▇▇▇▇▇'▇ benefits under any of such plans or deprive ▇▇▇▇▇▇▇▇▇ of any
material fringe benefit enjoyed by ▇▇▇▇▇▇▇▇▇ at the time of the Change in
Control, but this provision shall not apply to any stock option plan maintained
by ▇▇▇▇▇▇▇ Foods prior to the Change in Control; or the
failure by ▇▇▇▇▇▇▇ Foods to provide ▇▇▇▇▇▇▇▇▇ with the number of paid vacation
days, holidays and personal days to which ▇▇▇▇▇▇▇▇▇ was then entitled in
accordance with ▇▇▇▇▇▇▇ 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 or 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 ▇▇▇▇▇▇▇▇▇ by first class, certified mail, postage
prepaid, return receipt requested, addressed as follows:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
b. To ▇▇▇▇▇▇▇ Foods by first class, certified mail, postage
prepaid, return receipt requested, addressed as follows:
▇▇▇▇▇▇▇ Foods, Inc.
324 Park National Bank Building
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
▇▇▇▇▇▇▇ FOODS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇
Its VP - Finance
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
