EXHIBIT 10.65
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of this 31st day of
December, 1994, and amended as of the 31st day of December 1995, the 31st day of
October 1997, and the 1st day of January 1999 by and between XXXXXXX FOODS,
INC., a Minnesota corporation (hereinafter referred to as "Xxxxxxx Foods") and
XXXXXX X. XXXXXXXXX (hereinafter referred to as "Xxxxxxxxx").
WHEREAS, Xxxxxxxxx has served as President of Crystal Farms
Refrigerated Distribution Company since May 1989; and
WHEREAS, Xxxxxxx Foods and Xxxxxxxxx have agreed to enter into this
Agreement effective as of January 1, 1995.
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties agree that this Agreement is effective as of
January 1, 1995 as follows:
1. EMPLOYMENT AND DUTIES. Xxxxxxx Foods shall employ Xxxxxxxxx to
serve as President of Crystal Farms Refrigerated Distribution
Company and in such capacity Xxxxxxxxx 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, 1995 and
shall continue through December 31, 1999, 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 Xxxxxxxxx, Xxxxxxx
Foods agrees to pay to Xxxxxxxxx an annual Base Salary for each of
the calendar years of this Agreement from January 1, 1999 through
December 31, 1999 of at least $203,000 payable in substantially
equal semi-monthly installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. For each calendar year during the term of this
Agreement, Xxxxxxxxx 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 Xxxxxxxxx with medical
insurance and shall permit Xxxxxxxxx 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. Xxxxxxxxx is entitled to take vacations at reasonable
times and for customary and reasonable lengths of time
consistent with his overall responsibilities as
President of Crystal Farms Refrigerated Distribution
Company.
1
d. Michael Foods shall reimburse Xxxxxxxxx for all
reasonable expenses incurred by Xxxxxxxxx in connection
with Xxxxxxx Foods' business, including but not limited
to, expenses of travel and entertainment, upon
presentation of itemized statements therefor.
5. EVENTS OF TERMINATION. The employment of Xxxxxxxxx hereunder
shall terminate as follows:
a. Upon the Incapacity or death of Xxxxxxxxx;
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 Xxxxxxxxx'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 Xxxxxxxxx has (i) committed an
illegal or dishonest act that directly reflects upon his
fitness to act as President of Crystal Farms
Refrigerated Distribution 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 Xxxxxxxxx is unable to perform his job
responsibilities as President of Crystal Farms
Refrigerated Distribution Company as a result of chronic
illness, physical, mental or any other disability for a
period of six (6) months or more.
If Xxxxxxxxx'x employment is terminated under subsection
(a) or by Xxxxxxx Foods under subsection (b), Xxxxxxxxx
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 Xxxxxxxxx'x employment is terminated by
Xxxxxxxxx under subsection (b), Xxxxxxxxx shall receive
no termination payment; however, Xxxxxxxxx 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 Xxxxxxxxx is entitled to
receive, but in no event shall the date of payment be
more
2
than 90 days following termination of employment. If
Xxxxxxx Foods terminates Xxxxxxxxx under subsection (c)
above, no amount shall be paid beyond the last day of
service by Xxxxxxxxx and Xxxxxxxxx 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 with sub-paragraphs a., b. and d. above, all
options to purchase common stock previously granted to
Xxxxxxxxx shall become fully vested and not subject to
Xxxxxxxxx'x forfeiture.
If Xxxxxxxxx'x employment is terminated by Xxxxxxx Foods
under subsection (d), Xxxxxxxxx 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 l(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 ARE SUBSTANTIALLY REDUCED OR NEGATIVELY ALTERED"
means, after any Change in Control and without
Xxxxxxxxx'x express written consent:
(i) the assignment to Xxxxxxxxx of any duties
inconsistent with Xxxxxxxxx'x positions, duties,
responsibilities and status with Xxxxxxx Foods
immediately prior to a Change in Control, or a change in
Xxxxxxxxx'x reporting responsibilities, titles or
offices as in effect immediately prior to a Change in
Control, or any removal of Xxxxxxxxx from, or any
failure to re-elect Xxxxxxxxx to, any of such positions,
except in connection with the termination of Xxxxxxxxx'x
employment for Cause, upon the Incapacity or death of
Xxxxxxxxx, or upon the voluntary termination by
Xxxxxxxxx;
3
(ii) a reduction in Xxxxxxxxx'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 Xxxxxxxxx to be based
anywhere other than the geographic location at which
Xxxxxxxxx was based immediately preceding the Change in
Control except for required travel on business to an
extent substantially consistent with the business travel
obligations Xxxxxxxxx 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 Xxxxxxxxx was participating immediately preceding
any Change in Control; the taking of any action by
Xxxxxxx Foods not required by law which would adversely
affect Xxxxxxxxx'x participation in or materially reduce
Xxxxxxxxx'x benefits under any of such plans or deprive
Xxxxxxxxx of any material fringe benefit enjoyed by
Xxxxxxxxx at the time of the Change in 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
Xxxxxxxxx with the number of paid vacation days,
holidays and personal days to which Xxxxxxxxx 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 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 Xxxxxxxxx by first class, certified mail, postage
prepaid, return receipt requested, addressed as follows:
XXXXXX X. XXXXXXXXX
0000 Xxxxxx Xxxxxx Xx.
Xx. Xxxxx Xxxx, XX 00000
4
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
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/ Xxxx Xxxxx
-------------------------------------
Its Vice President - Finance
---------------------------------
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
XXXXXX X. XXXXXXXXX
5
