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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
AGREEMENT, dated this 16th day of March, 1998 (the "Agreement"),
among DEL MONTE FOODS COMPANY (the "Employer"), a Maryland corporation, with its
offices at Xxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, and Xxxxxx X. Xxxxx, residing at
0000 Xxxxxx Xxx. Xxxxxxxx, XX 00000 (the "Employee").
1. Employment, Duties and Agreements.
(a) The Employer hereby agrees to employ the Employee as Chief
Operating Officer of the Employer and the Employee hereby accepts the employment
of, and agrees to serve, the Employer in such capacity during the employment
period fixed by Section 3 hereof (the "Employment Period"). The Employee's
duties and responsibilities shall be such duties and responsibilities as the
Employer may reasonably determine from time to time and as are consistent with
the above job description (the "Employment"). In rendering the Employment, the
Employee shall be subject to, and shall act in accordance with, all reasonable
instructions and directions of the Employer and all applicable policies and
rules thereof as are consistent with the above job description.
(b) During the Employment Period and as long as the Employer
shall not be in default of a material obligation hereunder, the Employee shall
devote his full business time and energy, attention, skills and ability to the
performance of the Employment on an exclusive basis, shall faithfully and
diligently endeavor to promote the business and best interests of the Employer,
and shall make available to the Employer all knowledge possessed by him relating
to any aspect of his duties and responsibilities hereunder.
(c) During the Employment Period and so long as the Employer
shall not be in default of a material obligation hereunder, the Employee may
not, except as provided in this Agreement without the prior written consent of
the Employer, operate, participate in the management, operations or control of,
or act as an employee, officer, director, trustee, consultant, principal, agent
or representative of, any type of business or service (other than as an employee
of the Employer), provided that (i) Employee may invest in publicly traded
companies that engage in Company Business where Employee's investment is less
than 5% of the outstanding stock of such company, (ii) Employee may serve on the
board of directors of any other company with the prior written consent of the
Board of Directors of the Employer (which consent shall not be unreasonably
withheld) and (iii) Employee may engage in industry activities relating to the
business of the Employer such as industry trade groups.
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2. Compensation.
(a) As compensation for the agreements made by the Employee
herein and the performance by the Employee of his obligations hereunder, during
the Employment Period, the Employer shall pay the Employee, not less than once a
month, a base salary at the rate of $400,000 per annum (the "Base Salary"). The
Employee's Base Salary shall be reviewed annually by the Compensation Committee
of the Employer's Board of Directors (the "Board").
(b) In addition to the Base Salary, the Employee shall be
entitled to participate in the Annual Incentive Award Plan (the "AIAP") pursuant
to the terms of which the Employee shall have an opportunity to earn an annual
bonus (the "Bonus") targeted at 50% of the Base Salary paid to the Employee
during each plan year.
(c) During the Employment Period, the Employee shall be entitled
to such expense accounts, vacation time, perquisites of office, fringe benefits,
group insurance coverage, pension, retirement and other benefits as may be
available generally to senior executive management of the Employer.
3. Employment Period
The Employment Period shall commence on April 18, 1997 and shall
continue until terminated upon the earliest to occur of the following events.
(a) The Employee's death, in which event the Employment Period
shall terminate as of the last day of the month in which his death occurs. In
the event of the termination of the Employment pursuant to this Section 3(a),
the Employer shall pay to the Employee's estate as soon as practicable
thereafter (i) any earned but unpaid Base Salary and (ii) any earned but unpaid
Bonus to which the Employee is entitled pursuant to the AIAP as of the
Termination Date (as defined below), and the Employee shall not be entitled to
any further compensation or payments hereunder.
(b) The Employee's total and permanent disability ("Permanent
Disability"), in which event the Employment Period shall terminate as of the
last day of the month in which such event occurs. The Employee shall be deemed
to have incurred a Permanent Disability for the purposes of this Agreement if,
by reason of a physical or mental condition, for a period of six consecutive
months or more, he has not substantially performed the duties normally required
of him hereunder. The date as of which the Employee shall be deemed to have
incurred a Permanent Disability shall be the day on which the six-month period
referred to in the preceding sentence of this Section 3(b) terminates. Upon the
termination of the Employment pursuant to this Section 3(b), the Employee shall
be entitled to (x) any earned but unpaid Base Salary and (y) any earned but
unpaid Bonus to which the Employee is entitled pursuant to the AIAP as of the
Termination Date, and the Employee shall not be entitled to any further
compensation or payments hereunder.
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(c) Termination by the Employer of the Employment Period for
Cause. In the event of the termination of the Employment pursuant to this
Section 3(c), the Employee shall be entitled to (i) any earned but unpaid Base
Salary and (ii) any earned but unpaid Bonus to which the Employee is entitled
pursuant to the AIAP as of the Termination Date, and the Employee shall not be
entitled to any further compensation or payments hereunder.
(d) Termination by the Employer of the Employment Period without
Cause or Termination by the Employee of the Employment Period. In the event of
the termination of the Employment pursuant to this Section 3(d), the Employee
shall be entitled to the following payments and benefits:
(i) The Employer shall pay to the Employee (1) any earned but
unpaid Base Salary and (2) any earned but unpaid Bonus to which the Employee is
entitled pursuant to the AIAP as of the Termination Date.
(ii) The Employer shall continue to pay to the Employee in
accordance with the Employer's normal payroll schedule (which shall not be less
regularly than monthly) the Employee's Base Salary and Bonus (at the target
level) until the earlier of (x) the second anniversary of the Termination Date
or (y) the Employee's engagement in any aspect of the Company Business (as
defined hereinafter), and the Employer shall have no further payment obligations
pursuant to this Section 3(d)(ii) thereafter. The Employee agrees to notify the
Employer prior to commencement of his engagement in any aspect of the Company
Business.
(iii) The Employer shall maintain in full force and effect for
the Employee's continued benefit until the earlier of (x) the second anniversary
of the Termination Date or (y) the Employee's engagement in any aspect of the
Company Business, all life, medical, dental, prescription drug and long- and
short-term disability insurance plans, programs or arrangements in which the
Employee was entitled to participate at any time during the twelve-month period
prior to the Termination Date, provided that the Employee's continued
participation is possible under the general terms and provisions of such plans,
programs or arrangements. In the event that the Employee's participation in any
such plan, program or arrangement is prohibited, the Employer shall arrange to
provide the Employee with benefits substantially similar to those which the
Employee is entitled to receive under such plans, programs or arrangements for
such period.
(iv) No amounts paid pursuant to Section 3(d)(ii) or Section
3(d)(iii) will constitute compensation for any purpose under any retirement plan
or other employee benefit plan, program, arrangement or agreement of the
Employer or any of its affiliates.
(v) As a condition to the receipt of the benefits described in
this Section 3(d), the Employee shall be required to execute a general release
and waiver in form and substance satisfactory to the Employer and substantially
similar to Annex A hereto.
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(vi) The payments to the Employee under this Section 3(d) shall
be in lieu of any other benefits in the nature of severance benefits to which
the Employee would otherwise be entitled.
(e) The Employee shall not be required to mitigate the amount of
payments due under this Section 3 by seeking new employment.
(f) For purposes of this Section 3:
(i) "Cause," when used in connection with the termination of the
Employment Period by the Employer, shall mean: (1) commission of a felony or a
crime involving moral turpitude; or (2) material breach of this Agreement, which
breach, if correctable, is not corrected within 20 days after receipt by the
Employee of written notice from the Employer of a claimed breach.
(ii) "Termination Date" shall mean the date upon which the
Employment Period is terminated.
4. Covenant Not to Compete.
(a) During the Employment Period and for the one-year period
following the voluntary termination of the Employment Period by the Employee or
termination of the Employment Period by the Employer without Cause, and so long
as the Employer is not in default of a material obligation hereunder, the
Employee agrees not to engage in any aspect of the Company Business other than
as an employee of the Employer. The Employee shall be deemed to be engaging in
Company Business if he directly or indirectly, whether or not for compensation,
participates in the ownership, management, operation or control of any
Competitor (as hereinafter defined) or is employed by or performs consulting
services for any Competitor; provided, however, that if such Competitor renders
substantial services other than Company Business, the Employee shall not be
prohibited from engaging in any such activities solely in connection with such
other services; and provided, further, that Employee may invest in publicly
traded companies that engage in Company Business where Employee's investment is
less than 5% of the outstanding stock of such company.
(b) During the Employment Period and for the two-year period
following the voluntary termination of the Employment Period by the Employee or
termination of the Employment Period by the Employer without Cause, and so long
as the Employer is not in default of a material obligation hereunder, the
Employee agrees, other than as an employee of the Employer, not to solicit the
employment of any employee of the Employer.
(c) During the Employment Period and at all times following the
termination of the Employment for any reason, the Employee agrees that, other
than as an employee of the Employer, he shall not release any customer or
supplier lists or manufacturing or marketing information of the Employer, or any
other documents or other information (whether or not such
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information is in writing) that is proprietary to the Employer or any customer
or supplier of the Employer, or otherwise confidential or non-public, to any
person, except with the Employer's written consent or as may be required
pursuant to the order of a court of competent jurisdiction.
(d) For purposes of Section 4:
(i) The "Company Business" is the manufacture and sale of
processed fruits and vegetables, pineapple products and tomato products and each
other business in which the Employer is engaged during the Employment Period.
(ii) A "Competitor" is any corporation, firm, partnership,
proprietorship or other entity which engages in any Company Business and which
is a direct competitor of the Employer with respect to such Company Business.
(e) The Employee hereby agrees that:
(i) Each of the covenants contained in Sections 4(a), 4(b) and
4(c) hereof shall be construed as a separate covenant.
(ii) If, in any judicial proceeding, a court shall refuse to
enforce any of the separate covenants of Section 4(a), 4(b) or 4(c) hereof, then
such unenforceable covenant shall be deemed eliminated from this Agreement for
the purpose of such proceeding or any other judicial proceeding to the extent
necessary to permit the remaining separate covenants of Sections 4(a), 4(b) and
4(c) hereof to be enforced.
(f) The Employee agrees to deliver promptly to the Employer upon
the termination of the Employment for any reason, or at any other time that the
Employer may so request, all proprietary or confidential documents (and all
copies thereof) relating to the business of the Employer, or any of its
subsidiaries or affiliates, and all other property associated therewith, which
he may then possess or have under his control. The Employee agrees that all of
the right, title and interest in the ownership of the products of the Employee's
services hereunder (including, but not limited to, client lists, market
information and marketing and manufacturing designs, proposals and concepts)
shall belong to the Employer free and clear of any claims by the Employee or
anyone claiming under the Employee.
(g) The parties hereto hereby declare that it is impossible to
measure in money the damages which will accrue to the Employer by reason of a
failure by the Employee to perform any of his obligations under this Agreement
and, in particular, under this Section 4. Accordingly, if the Employer
institutes any action or proceeding to enforce the provisions hereof, to the
extent permitted by applicable law, the Employee hereby waives the claim or
defense that the Employer has an adequate remedy at law, and the Employee shall
not urge in any such action or proceeding the claim or defense that any such
remedy at law exists. In addition, the breach by the Employee of any provision
of this Section 4 shall automatically discharge the Employer from any further
obligations under Section 3(d)(ii) or Section 3(d)(iii) of this Agreement.
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(h) The restrictions in this Section 4 shall be in addition to
any restrictions imposed on the Employee by statute or at common law.
5. Attorneys Fees.
In the event either party brings an action to enforce this
Agreement the prevailing party shall be entitled to recover such party's
reasonable legal fees and costs. The Employer will pay Employee the reasonable
legal fees (at regular hourly rates), costs and expenses of the Employee in
connection with the negotiation and preparation of this Agreement and related
agreements.
6. Miscellaneous.
(a) Any notice or other communication required or permitted under
this Agreement shall be effective only if it is in writing and delivered
personally or sent by registered or certified mail, postage prepaid, addressed
as follows:
If to the Employer:
Del Monte Foods Company
One Market
San Francisco, CA 941O5
Attention: Board of Directors and Secretary
with a copy to:
Xxxxxx X. Xxxx, Esq.
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
If to the Employee:
Xx. Xxxxxx X. Xxxxx
or to such other address as any party hereto may designate by
notice to the others, and shall be deemed to have been given upon receipt.
(b) This Agreement constitutes the entire agreement among the
parties hereto with respect to the Employee's Employment by the Employer, and
supersedes and is in full substitution for any and all prior understandings or
agreements with respect to the Employee's Employment.
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(c) This Agreement may be amended only by an instrument in
writing signed by the parties hereto, and any provision hereof may be waived
only by an instrument in writing signed by the party or parties against whom or
which enforcement of such waiver is sought. The failure of any party hereto at
any time to require the performance by any other party hereto of any provision
hereof shall in no way affect the full right to require such performance at any
time thereafter, nor shall the waiver by any party hereto of a breach of any
provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or a waiver of the provision itself or a waiver of any other
provision of this Agreement.
(d) This Agreement is binding on and is for the benefit of the
parties hereto and their respective successors, heirs, executors, administrators
and other legal representatives. Neither this Agreement nor any right or
obligation hereunder may be assigned by the Employer or by the Employee.
(e) If any provision of this Agreement or portion thereof is so
broad, in scope or duration, so as to be unenforceable, such provision or
portion thereof shall be interpreted to be only so broad as is enforceable.
(f) The Employer may withhold from any amounts payable to the
Employee hereunder all federal, state, city or other taxes that the Employer may
reasonably determine are required to be withheld pursuant to any applicable law
or regulation.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without reference to its
principles of conflicts of law.
(h) This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
(i) The headings in this Agreement are inserted for convenience
of reference only and shall not be a part of or control or affect the meaning of
any provision hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
DEL MONTE FOODS COMPANY
/s/ XXXXX X. XXXXXX
-------------------------------
By:
Title:
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
------------------
County of San Francisco
-----------------
On March 16, 1998 before me, Xxxxxxx X. Xxxxxxxx
-------------- ------------------------------,
DATE NAME, TITLE OF OFFICER -
E.G., "XXXX XXX, NOTARY PUBLIC"
personally appeared Xxxxxx X. Xxxxx
---------------------------------------,
NAME(S) OF SIGNER(S)
[XX] personally known to me - OR - [ ] proved to me on the basis of satisfactory
evidence to be the person(s) whose
------------------------------ name(s) is/are subscribed to the within
Seal instrument and acknowledged to me that
XXXXXXX X. XXXXXXXX he/she/they executed the same in his/her/
COMM. # 1022842 their authorized capacity(ies), and that
NOTARY PUBLIC-CALIFORNIA his/her/their signature(s) on the
LOS ANGELES COUNTY instrument the person(s), or the entity
My Comm. Expires Apr. 10, 1998 upon behalf of which the person(s) acted,
------------------------------ executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
SIGNATURE OF NOTARY
===============================================================================
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[ ] CORPORATE OFFICER
--------------------------- -----------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL
-----------------------------
NUMBER OF PAGES
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER:
------------------- ------------------------------
DATE OF DOCUMENT
-------------------------
-------------------------
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
-------------------------------
----------------------------- SIGNER(S) OTHER THAN NAMED ABOVE
-----------------------------
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
------------------
County of San Francisco
-----------------
On March 16, 1998 before me, Xxxxxxx X. Xxxxxxxx
-------------- ------------------------------,
DATE NAME, TITLE OF OFFICER -
E.G., "XXXX XXX, NOTARY PUBLIC"
personally appeared Xxxxx X. Xxxxxx
---------------------------------------,
NAME(S) OF SIGNER(S)
[XX] personally known to me - OR - [ ] proved to me on the basis of satisfactory
evidence to be the person(s) whose
------------------------------ name(s) is/are subscribed to the within
Seal instrument and acknowledged to me that
XXXXXXX X. XXXXXXXX he/she/they executed the same in his/her/
COMM. # 1022842 their authorized capacity(ies), and that
NOTARY PUBLIC-CALIFORNIA by his/her/their signature(s) on the
LOS ANGELES COUNTY instrument the person(s), or the entity
My Comm. Expires Apr. 10, 1998 upon behalf of which the person(s) acted,
executed the instrument.
------------------------------
WITNESS my hand and official seal.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
SIGNATURE OF NOTARY
===============================================================================
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[ ] CORPORATE OFFICER
--------------------------- -----------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL
------------------------------
NUMBER OF PAGES
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER:
------------------- ------------------------------
DATE OF DOCUMENT
-------------------------
-------------------------
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
-------------------------------
----------------------------- SIGNER(S) OTHER THAN NAMED ABOVE
-----------------------------
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ANNEX A
GENERAL RELEASE AND WAIVER AGREEMENT (this "Agreement") made, as
of ____________________ by and between Xxxxxx X. Xxxxx ("Xxxxx") and Del Monte
Foods Company ("DMFC").
WHEREAS, pursuant to Section 3(d) of the Employment Agreement
between Xxxxx and DMFC dated as of March _, 1998 (the "Employment Agreement"),
Xxxxx agreed to execute a General Release and Waiver Agreement as a condition to
the receipt of certain termination payments;
WHEREAS, DMFC will commence payment of said termination payments
in accordance with the terms of the Employment Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
and for other good and valuable consideration, receipt of which is hereby
acknowledged, DMFC and Xxxxx agree as follows:
1. General Release and Waiver
(a) XXXXX HEREBY RELEASES, REMISES, ACQUITS AND DISCHARGES DMFC
AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,
AGENTS, EMPLOYEES, CONSULTANTS, INDEPENDENT CONTRACTORS, ATTORNEYS, ADVISERS,
SUCCESSORS AND ASSIGNS (THE "DMFC GROUP"), JOINTLY AND SEVERALLY, FROM ANY AND
ALL CLAIMS, KNOWN OR UNKNOWN, WHICH XXXXX OR XXXXX'X HEIRS, SUCCESSORS, OR
ASSIGNS HAVE OR MAY HAVE AGAINST ANY OF SUCH PARTIES AND ANY AND ALL LIABILITY
WHICH ANY OF SUCH PARTIES MAY HAVE TO XXXXX WHETHER DENOMINATED CLAIMS, DEMANDS,
CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES ARISING FROM XXXXX'X
EMPLOYMENT RELATIONSHIP WITH DMFC, HOWEVER DENOMINATED, INCLUDING BUT NOT
LIMITED TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS WITH
DISABILITIES ACT OF 1990, THE FAMILY AND MEDICAL LEAVE ACT OF 1993, TITLE VII OF
THE UNITED STATES CIVIL RIGHTS ACT OF 1964, 42 U.S.C. SECTION 1981, EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, THE CALIFORNIA FAIR
EMPLOYMENT AND HOUSING ACT, CALIFORNIA'S XXXXX CIVIL RIGHTS ACT OR ANY OTHER
FEDERAL, STATE, OR LOCAL LAW, AND ANY WORKERS' COMPENSATION OR DISABILITY CLAIMS
UNDER ANY SUCH LAWS. THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW DENOMINATED,
INCLUDING, BUT NOT LIMITED TO, INJUNCTIVE RELIEF, WAGES, BACK PAY, FRONT PAY,
COMPENSATORY DAMAGES, OR PUNITIVE DAMAGES. XXXXX FURTHER AGREES THAT XXXXX WILL
NOT FILE OR PERMIT TO BE FILED ON XXXXX'X BEHALF ANY SUCH CLAIM, EXCEPT NOTHING
HEREIN IS INTENDED TO INTERFERE WITH XXXXX'X RIGHT TO FILE A CHARGE WITH THE
EQUAL
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EMPLOYMENT OPPORTUNITY COMMISSION IN CONNECTION WITH ANY CLAIM XXXXX BELIEVES HE
MAY HAVE AGAINST ANY MEMBER OF THE DMFC GROUP. HOWEVER, BY EXECUTING THIS
AGREEMENT, XXXXX HEREBY AGREES TO WAIVE THE RIGHT TO RECOVER IN ANY PROCEEDING
XXXXX MAY BRING BEFORE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (OR ANY STATE
HUMAN RIGHTS COMMISSION) OR IN ANY PROCEEDING BROUGHT BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION (OR ANY STATE HUMAN RIGHTS COMMISSION) ON XXXXX'X BEHALF.
THIS RELEASE RELATES TO CLAIMS ARISING, FROM AND DURING XXXXX'X RELATIONSHIP
WITH ANY MEMBER OF THE DMFC GROUP OR AS A RESULT OF THE TERMINATION OF SUCH
RELATIONSHIP. THIS RELEASE SHALL NOT APPLY TO (1) THE OBLIGATIONS SET FORTH IN
THIS AGREEMENT, (2) AMOUNTS PAYABLE TO XXXXX UPON THE TERMINATION OF HIS
EMPLOYMENT PURSUANT TO SECTION 3(d) OF THE EMPLOYMENT AGREEMENT, (3) BENEFITS TO
WHICH XXXXX IS ENTITLED UNDER ANY TAX-QUALIFIED PENSION PLAN OF DMFC, (4) ANY
ADDITIONAL BENEFITS TO WHICH XXXXX IS ENTITLED FROM DMFC UPON THE TERMINATION OF
HIS EMPLOYMENT THAT HAVE BEEN APPROVED BY THE COMPENSATION COMMITTEE OF THE
BOARD OF DIRECTORS OF DMFC OR (5) ANY OTHER CLAIMS THAT MAY ARISE WITH RESPECT
TO EVENTS OCCURRING AFTER THE DATE ON WHICH XXXXX EXECUTES THIS AGREEMENT.
XXXXX UNDERSTANDS AND AGREES THAT ALL RIGHTS WITH RESPECT TO
MATTERS WHICH ARE THE SUBJECT OF THIS RELEASE, IF ANY, UNDER SECTION 1542 OF THE
CALIFORNIA CIVIL CODE ARE HEREBY EXPRESSLY WAIVED. SECTION 1542 OF THE
CALIFORNIA CIVIL CODE STATES:
'A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.'
(b) XXXXX ACKNOWLEDGES THAT THE PAYMENTS XXXXX IS RECEIVING IN
CONNECTION WITH THE FOREGOING RELEASE ARE IN ADDITION TO ANYTHING OF VALUE TO
WHICH XXXXX ALREADY IS ENTITLED FROM THE DMFC GROUP.
2. Heirs and Assigns
The terms of this Agreement shall be binding on the parties
hereto and their respective successors and assigns.
3. General Provisions
(a) Integration
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This Agreement, in conjunction with the Employment Agreement,
constitutes the entire understanding of DMFC and Xxxxx with respect to the
subject matter hereof and supersedes all prior understandings, written or oral.
The terms of this Agreement may be changed, modified or discharged only by an
instrument in writing signed by the parties hereto. A failure of DMFC or Xxxxx
to insist on strict compliance with any provision of this Agreement shall not be
deemed a waiver of such provision or any other provision hereof. In the event
that any provision of this Agreement is determined to be so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
(b) Choice of Law
This Agreement shall be construed, enforced and interpreted in
accordance with and governed by the laws of the state of California, without
reference to its principles of conflicts of law.
(c) Construction of Agreement
The parties hereto acknowledge and agree that each party has
reviewed and negotiated the terms and provisions of this Agreement and has
contributed to its revision. Accordingly, the rule of construction to the effect
that ambiguities are resolved against the drafting party shall not be employed
in the interpretation of this Agreement. Rather, the terms of this Agreement
shall be construed fairly as to both parties hereto and not in favor or against
either party.
(d) Counterparts
This Agreement may be executed in any number of counterparts and
by different parties on separate counterparts, each of which counterpart, when
so executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.
4. Knowing and Voluntary Waiver
Xxxxx acknowledges that, by Xxxxx'x free and voluntary act of
signing below, Xxxxx agrees to all of the terms of this Agreement and intends to
be legally bound thereby.
Xxxxx understands that he may consider whether to agree to the
terms contained herein for a period of twenty-one days after the date hereof.
Accordingly, he may execute this Agreement by _____________ to acknowledge his
understanding of and agreement with the foregoing. Xxxxx acknowledges that he
has been advised to consult with an attorney prior to executing this Agreement.
This Agreement will become effective, enforceable and irrevocable
seven days after the date on which Xxxxx executes it (the "Effective Date").
During the seven-day period prior to the Effective Date, Xxxxx may revoke his
agreement to accept the terms hereof by indicating in writing to DMFC his
intention to revoke. If Xxxxx exercises his right to revoke
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hereunder, he shall forfeit his right to receive any of the benefits payable to
him upon his termination with DMFC pursuant to Section 3(d) of the Employment
Agreement.
DEL MONTE FOODS COMPANY
By:
-------------------------------
-------------------------------
Xxxxxx X. Xxxxx
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Acknowledgment
On the ______ day of _______________, before me personally came
Xxxxxx X. Xxxxx, who, being by me duly sworn, did acknowledge and represent that
he has had an opportunity to consult with attorneys and other advisers of his
choosing regarding the General Release and Waiver Agreement attached hereto,
that he has reviewed all of the terms of such Agreement and that he fully
understands all of its provisions.
-------------------------------
Notary Public
Date:
--------------------------
Commission Expires:
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PROMISSORY NOTE
$175,000.00 February 6, 1998
I, Xxxxxx X. Xxxxx, for value received, promise to pay to DEL MONTE
FOODS COMPANY, a Maryland corporation (the "Company"), the principal amount of
$175,000.00, plus interest on the outstanding principal amount and any accrued
interest thereon, at the time or times set forth below. Interest on the
principal amount shall be compounded semiannually using a rate: (i) for the
period from the date hereof through July 31, 1998, equal to the Federal
short-term rate in effect under Section 1274(d) of the Internal Revenue Code of
1986 (the "Code") for January 1998 and (ii) for each six-month period
thereafter, equal to the Federal short-term rate in effect under Section 1274(d)
of the Code for the first month of such period.
Except as set forth in the following paragraph, the principal amount of
this Promissory Note and all accrued interest shall be fully due and payable on
the sixtieth day following the date that I cease to be an employee of the
Company or any of its affiliates for any reason (the "Due Date"), and may be
prepayed in whole or in part at any time at my election; provided, however, that
simultaneously with the sale (prior to the Due Date) of any shares of the common
stock of the Company, par value $.01 per share ("Common Stock"), owned by me and
pledged to secure my obligation under this Promissory Note, the principal amount
of this Promissory Note and all accrued interest thereon shall be due and
payable to the extent of the net cash proceeds (as defined below) from such sale
and such net cash proceeds shall be applied in full to the repayment of the
principal amount of this Promissory Note and all accrued interest thereon. Any
remaining principal amount of this Promissory Note and accrued interest thereon
remaining unpaid after the application of such net cash proceeds pursuant to the
immediately preceding sentence shall remain due and payable in accordance with
the terms of this Promissory Note. "Net cash proceeds" shall mean gross sales
proceeds less any sale commissions or withholding taxes.
So long as the provisions of Section 3(c) of the Stockholders' Agreement,
dated as of February 6, 1998, between me and the Company are in effect, any
principal amount of this Promissory Note and accrued interest thereon due and
payable upon the Due Date shall not be due and payable until the earlier of (1)
the last day of the period during which I have the right to sell shares of
Common Stock to the Company pursuant to Section 3(c) (if I have not given
written notice of my exercise of such right prior to that day) and (2) to the
extent of the net cash proceeds received therefrom, the date on which I sell
shares of Common Stock to the Company pursuant to Section 3(c).
Interest on this Promissory Note shall accrue from the date of issuance
until repayment of the principal and payment of all accrued interest in full.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
Payments of the principal amount of this Promissory Note and any interest
thereon shall be made in lawful money of the United States of America.
17
This Promissory Note is non-transferable, except by operation of law.
I agree and covenant that the Company or any of its affiliates shall have
full recourse against me for the payment of the entire principal amount of this
Promissory Note and all accrued interest thereon.
I waive my right to presentment, protest and demand, notice of protest,
and notice of demand or dishonor or nonpayment of this Promissory Note.
I promise to pay all costs and expenses, including reasonable attorneys'
fees and disbursements, incurred by the Company or any of its affiliates in the
enforcement of my obligations hereunder.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of California, without reference to its principles
of conflicts of law.
IN WITNESS WHEREOF, I have caused this Promissory Note to be duly
executed, all as of the day and year first above written.
----------------------
Xxxxxx X. Xxxxx
18
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On the ____ day of March, nineteen hundred and ninety eight, before
me personally came Xxxxxx X. Xxxxx, to me known to be the individual described
in, and who executed, the foregoing instrument, and acknowledged that he
executed the same.
(SEAL) Notary Public
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