EXHIBIT 10.20
FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
made effective as of January 1, 2005, between XxXXXXXXX CORPORATION, a Delaware
corporation, with its principal office located at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Corporation"), and XXXXXXX X. XXXXXX, residing
at 00 Xxxxxxxx Xxxxx Xxxx, Xxxx Xxx, Xxx Xxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, effective February 1, 1990, the Corporation and Executive
entered into an employment agreement pursuant to which the Executive agreed to
serve the Corporation as Executive Vice President -- President of the Xxxxx Xxxx
Operations (the "1990 Agreement");
WHEREAS, as of January 1, 1994, the Corporation and Executive entered
into an Amended and Restated Employment Agreement pursuant to which the
Executive agreed to continue to serve as Executive Vice President -- President
of the Xxxxx Xxxx Operations (the "1994 Agreement");
WHEREAS, as of June 30, 1997, the Corporation and Executive entered
into a Second Amended and Restated Employment Agreement pursuant to which the
Executive agreed to continue to serve as Executive Vice President -- President
of the Xxxxx Xxxx Food Division (the "1997 Agreement");
WHEREAS, effective April 1, 2000, the Corporation and the Executive
entered into a Third Amended and Restated Employment Agreement pursuant to which
the Executive agreed to serve as Executive Vice President -- President of the
Xxxxx Xxxx Operations (the "2000 Agreement"); and
WHEREAS, the Corporation desires to continue to employ Executive, and
Executive desires to continue to be so employed by the Corporation, on the terms
and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Employment; Term. The Corporation agrees to employ Executive, and
Executive agrees to furnish his services, on the terms and conditions herein set
forth, for a term of five (5) years commencing as of January 1, 2005 and ending
on December 31, 2009, unless sooner terminated as herein provided. The term of
Executive's employment hereunder may be extended for additional one (1) year
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periods by the mutual written consent of both parties hereto given at least
ninety (90) days prior to the then scheduled termination of the Executive's
employment hereunder.
2. Office and Duties. During the term of this Agreement, Executive
agrees to serve the Corporation as its President, Chief Executive Officer and
Co-Chairman of the Board of Directors. Executive shall report directly to the
Board of Directors of the Corporation. Executive shall also perform such other
duties and shall exercise such other powers for the Corporation and for any of
its divisions, operations, subsidiaries, or affiliated companies as from time to
time may be assigned to him by the Board of Directors without further
compensation other than that for which provision is made in this Agreement;
provided that any such other duties shall be consistent with Executive's
position as President of the Corporation.
3. Extent of Services; Other Business Activities. Executive agrees
that he shall devote his best efforts, energies, and skills to the discharge of
his duties and responsibilities hereunder. To this end, Executive agrees that he
shall devote his full business time and attention to the business and affairs of
the Corporation and its divisions, operations, subsidiaries, and affiliated
companies and shall not, without the consent of the Corporation, directly or
indirectly, engage or participate in, or become an officer or director of, or
become employed by, or render advisory or other services in connection with, any
other business enterprise. Notwithstanding the foregoing, during the term of
this Agreement Executive shall have the right to invest personally in any
corporation, partnership, or other entity or enterprise, engage in appropriate
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civic, charitable, and religious activities, and devote a reasonable amount of
time to private investments, provided that (i) any such investment or other
activity shall not interfere with the execution of Executive's duties hereunder
or otherwise violate any provision of this Agreement, (ii) any such corporation,
partnership, or other entity or enterprise does not compete with the
Corporation, and (iii) notwithstanding the foregoing, Executive may purchase an
aggregate of one percent (1%) of any security publicly traded on an established
securities market.
4. Compensation.
(a)In consideration of the services to be rendered by Executive
hereunder, the Corporation agrees to pay to Executive, and Executive agrees to
accept, a salary for each calendar year during the term of this Agreement
between $400,000 per calendar year and $500,000 per calendar year, as the
Executive elects, commencing effective as of January 1, 2005 and ending upon the
termination of this Agreement (the "Salary"). The Salary shall be payable in
accordance with the regular payroll practices of the Corporation. During the
term of this Agreement, the Corporation agrees to review Executive's
compensation prior to each anniversary date of the date hereof, but any increase
in compensation offered to Executive under this Paragraph 4 resulting from such
review shall be in the sole discretion of the Board of Directors of the
Corporation. In the event of the Executive's termination by the Corporation
without cause, the Corporation shall continue to pay the Executive his salary
(in the amount he is earning at the time of his termination) through the
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termination of this Agreement or any extension under which he is then working.
This Section 4(a) shall survive termination of this Agreement for any reason or
expiration of this Agreement.
(b) The Corporation shall remit to Executive a discretionary bonus
for calendar year 2004 that is no less than that he received in calendar year
2003.
(c) The Corporation agrees to pay Executive a discretionary bonus
for each calendar year after 2004; provided, however, that if the Corporation's
EBITDA for its fiscal year ending on or about December 31 of each such calendar
year is at least $30,000,000, then in such event the bonus for such calendar
year shall be no less than $300,000. The Corporation shall remit the bonus (if
any) to Executive no later than April 30 of the calendar year following that in
which it is earned. Executive shall be entitled to the bonus (if any) earned
under this provision after it is earned under any and all circumstances,
including without limitation, the Executive's death, and termination of the
Executive's employment. In the event of the Executive's termination of
employment (for any reason), the minimum annual bonus shall be deemed earned at
the rate of $25,000 per month for each month (or partial month) in the calendar
year in which he was terminated, but only if the Corporation's EBITDA for that
portion of its fiscal year through the end of its accounting period ending
closest to the last day of the month in which Executive's employment is
terminated is at least $30,000,000 multiplied by a fraction, the numerator of
which is the number of months (or partial months) prior to the termination date
in the calendar year in which Executive's employment was terminated and the
denominator of which is twelve (12). Subject to the minimum bonus provisions set
forth in this Section 4(c), the determination of the amount of the bonus, if
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any, to be paid by the Corporation to Executive under this Section 4(c) shall be
in the sole discretion of the Board of Directors of the Corporation. This
Section 4(c) shall survive termination of this Agreement for any reason or
expiration of this Agreement.
(d) The Corporation will pay the Executive, on or before January
31, 2005, a bonus of $99,955.34. The Corporation shall withhold from such bonus:
8.97% New Jersey income tax; 1.45% Medicare tax; and 31.86% federal income tax.
The net after-tax payment of $57,693.72 shall be applied in full payment of the
principal ($55,209.30) and interest ($2,484.42) due from the Executive to the
Corporation; and the Corporation acknowledges that such payment is in full
satisfaction of all loans and notes due from the Executive to the Corporation.
5. Additional Compensation. The 1992 Agreement, the 1997 Agreement and
most recently the 2000 Agreement in Sections 4(b) through 4(g) thereof provided
for the Executive, under certain conditions, to receive additional compensation.
The Corporation and the Executive agree that the Executive shall be paid
additional compensation ("Additional Compensation") upon the terms and
conditions in this Section 5. Under this Section, no later than February 17,
2005, Executive has the right to elect whether to include Las Plumas Partners,
L.P., a Delaware limited partnership ("Las Plumas"), in the computation of his
Additional Compensation under this Section 5. In the event Executive does not
exercise the right to include Las Plumas in the computation of his Additional
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Compensation, Sections 5.1.1.6, 5.1.1.7, 5.1.1.9, 5.1.3.4, 5.1.3.5, and 5.1.3.7
below shall be inapplicable to the computation and the figure used in Section
5.1.1.1 shall be $18,917,002.
5.1. For the purposes of this Agreement, the following terms shall
mean:
5.1.1. "Base Amount" shall mean: At any particular moment in
time, the sum of:
5.1.1.1. $36,894,308 (if Las Plumas is included) or
$18,917,002 (if Las Plumas is not included); less
5.1.1.2. An amount equal to the dividends paid by the
Corporation to its shareholders in November 2004 and
December 2004; plus
5.1.1.3. An amount equal to the interest that would
accumulate if interest was accrued on the Base Amount from
January 1, 2005 at a cumulative annual rate (compounded
annually) equal to the Prime Rate as announced from time to
time by Deutsche Bank; less
5.1.1.4. Any sums received by all of the Corporation's
shareholders in respect of their stock ownership, after
January 1, 2005, e.g., dividends, or sale of stock or
liquidation of the Corporation proceeds; less
5.1.1.5. Any sums received by the partners of Rose Partners,
L.P., after January 1, 2005, from the sale of all of their
partnership interests in Rose Partners, L.P.; less
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5.1.1.6. Any distributions received by all of the partners
of Las Plumas Partners, L.P., a Delaware limited partnership
("Las Plumas"), during November 2004 and December, 2004;
less
5.1.1.7. Any sums received by the partners of Las Plumas,
after January 1, 2005, as distributions from Las Plumas or
as proceeds from the sale of all of their partnership
interests in Las Plumas; less
5.1.1.8. The Extrapolated Value of Rose with respect to any
Recognition Event referred to in Section 5.1.3.6; less
5.1.1.9. The Extrapolated Value of Las Plumas with respect
to any Recognition Event referred to in Section 5.1.3.7.
In computing the Base Amount, at any point in time, any reductions thereto by
virtue of Sections 5.1.1.2, 5.1.1.4, 5.1.1.5, 5.1.1.6, 5.1.1.7, 5.1.1.8 or
5.1.1.9 shall first be applied to the accumulated interest and then to the
principal, provided that the sums so applied to reduce the Base Amount shall not
reduce it below zero.
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5.1.2. "Additional Compensation Percentage" shall mean: six (6%)
percent.
5.1.3. "Recognition Event" shall mean:
5.1.3.1. A distribution of any assets, in cash or in any
other form (if the latter, to be measured by the fair market
value of the non-cash distribution), by the Corporation to
its shareholders in respect of the stock of the Corporation;
5.1.3.2. The receipt of proceeds of the sale of all of the
stock of the Corporation or the proceeds of any transfer of
all of the ownership interest in the stock of the
Corporation, whether in cash or in kind (if the latter, to
be measured by the fair market value of the non-cash
proceeds);
5.1.3.3. The receipt of proceeds of the sale by the partners
of Rose Partners, L.P. of all of their partnership
interests, whether in cash or in kind (if the latter, to be
measured by the fair market value of the non-cash proceeds);
5.1.3.4. A distribution of any assets, in cash or in any
other form (if the latter, to be measured by the fair market
value of the non-cash distribution), by Las Plumas to its
partners in respect of their Las Plumas partnership
interests;
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5.1.3.5. The receipt of proceeds of the sale by the partners
of Las Plumas of 100% of the partnership interests therein,
whether in cash or in kind (if the latter, to be measured by
the fair market value of the non-cash proceeds);
5.1.3.6 A sale of partnership interests, merger or other
reorganization transaction ("Reorganization Transaction")
involving Rose Partners, L.P. in which the persons who hold
the partnership interests in Rose Partners, L.P. as of the
date of this Agreement (whether directly or indirectly
through intermediary entities) no longer hold at least a
majority of the percentage interests in Rose Partners, L.P.,
in which event the fair market value of 100% of the
partnership interests in Rose Partners, L.P. (the
"Extrapolated Value of Rose") shall be determined by
extrapolation based on the fair market value of the proceeds
received upon such Reorganization Transaction by the former
partners, whether in cash or in kind (if the latter, to be
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measured by the fair market value of the non-cash proceeds),
without regard to any discounts or premiums which may have
been taken into account in arriving at the purchase price
actually agreed upon in such Reorganization Transaction. The
extrapolation shall be calculated as follows: by dividing
(i) the collective fair market value of the proceeds
received by the former partners; by (ii) by the percentage
interests of the partnership collectively held by the former
partners; and
5.1.3.7. A Reorganization Transaction involving Las Plumas
in which the persons who hold the partnership interests in
Las Plumas as of the date of this Agreement (whether
directly or indirectly through intermediary entities) no
longer hold at least a majority of the percentage interests
in Las Plumas, in which event the fair market value of 100%
of the partnership interests in Las Plumas (the
"Extrapolated Value of Las Plumas") shall be determined by
extrapolation based on the fair market value of the proceeds
received upon such Reorganization Transaction by the former
partners, whether in cash or in kind (if the latter to be
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measured by the fair market value of the non-cash proceeds),
without regard to any discounts or premiums which may have
been taken into account in arriving at the purchase price
actually agreed upon in such Reorganization Transaction. The
extrapolation shall be calculated as follows: by dividing
(i) the collective fair market value of the proceeds
received by the former partners; by (ii) by the percentage
interests of the partnership collectively held by the former
partners.
For the avoidance of doubt, it is acknowledged and understood, for purposes of
the Recognition Events referred to in Sections 5.1.3.6 and 5.1.3.7, that (i) a
transfer of a partnership interest in Rose Partners, L.P. or Las Plumas to a
person who, as of the date of this Agreement, has an indirect interest in the
transferor partner (such as a distribution by the Estate of Xxxxxx X. Xxxxxxxx
of its partnership interests in Rose Partners, L.P. or Las Plumas to any of the
Estate's beneficiaries, including testamentary trusts) shall not be considered a
change in ownership, and (ii) a transfer of a partnership interest in Rose
Partners, L.P. or Las Plumas (whether directly or indirectly through
intermediary entities) to a related party, whether by gift or otherwise, shall
not be considered a change of ownership.
5.2. Any dispute regarding the fair market value of a distribution
or proceeds of a sale/transfer in kind shall be resolved by an "arbiter". The
initial arbiter shall be Xxxx, Xxxxxx & Xxxxxxxx, CPAs. If Xxxx, Xxxxxx &
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Xxxxxxxx, CPAs is unwilling or unable to serve as the arbiter then a mutually
agreed upon arbiter shall serve in its place and stead. The arbiter's decision
shall be final and binding on all interested parties.
5.3. At such a point in time as the Base Amount is reduced to zero
(but not below), from and after such time, the Corporation shall pay Additional
Compensation to the Executive (within thirty days after the Recognition Event)
in an amount equal to the result of multiplying the Additional Compensation
Percentage times (i) the amount of the distribution, or proceeds received by the
stockholders or the partners of Rose Partners, L.P. or the partners of Las
Plumas (as the case may be) at such Recognition Event; or (ii) the Extrapolated
Value of Rose or Las Plumas (as the case may be) at such Recognition Event;
provided, however, if the Base Amount is greater than zero immediately prior to
the Recognition Event and such Recognition Event produces a distribution
proceeds or Extrapolated Value of Rose or Las Plumas in excess of the then Base
Amount, the Additional Compensation Percentage shall be multiplied by the amount
of such excess over the then Base Amount (and not the amount of the total
distribution, proceeds or Extrapolated Value of Rose or Las Plumas from that
Recognition Event).
5.4. The Additional Compensation due pursuant to this Section 5
shall be payable to the Executive (or the personal representatives of the
Executive if the Executive has died) under any and all circumstances, including
without limitation, the Executive's death, and termination of the Executive's
employment; except: (i) if the Executive breaches his covenants set forth in
Sections 12 or 13 of this Agreement, or (ii) the Executive is terminated "for
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cause" pursuant to Section 11 of this Agreement, the Executive shall not
thereafter be entitled to any Additional Compensation pursuant to this Section
5. This Section 5 shall survive the termination of this Agreement for any reason
or expiration of this Agreement.
6. Executive Benefits.
6.1. Executive shall be entitled to participate, on the same basis
and subject to the same qualifications, in all employee benefit plans (the
"Plans"), if any including, but not limited to, pension and profit-sharing
plans, supplemental retirement benefit plans, and life, health, disability, and
similar plans, and fringe benefits (the "Benefits") which during the term hereof
shall be in effect from time to time and be applicable to the Corporation's
employees or senior executives generally. In the event Executive is asked by the
Corporation to relocate his place of residence, any reasonable moving (and
associated) expenses and costs shall be reimbursed by the Corporation.
6.2. If Executive's employment hereunder is terminated by the
Corporation prior to the scheduled termination of the term of Executive's
employment hereunder (other than a termination for "cause" [as hereinafter
defined] or as a result of Executive's voluntary resignation from his employment
by the Corporation), the Corporation shall either (i) continue through the
scheduled termination date of the term of Executive's employment hereunder
Executive's participation in the Plans and entitlement to the Benefits to which
Executive would have been entitled had he remained employed through the term of
this Agreement, or (ii) provide equivalent benefits (taking into account the tax
consequences of any benefits described in clause (i)) to Executive at no
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additional cost to Executive, but only to the extent that essentially equivalent
and no less favorable benefits are not provided by a subsequent employer or
otherwise received by Executive. If the terms of any such Plans or Benefits do
not permit continued participation by Executive, the Corporation shall arrange
to provide to Executive benefits substantially similar to, and no less favorable
than, the benefits he was entitled to receive up until the end of the period of
coverage. Executive shall have the option to have assigned to him at no cost and
with no apportionment of prepaid premiums, any assignable insurance policy owned
by the Corporation and relating specifically to Executive.
6.3. Recognizing that Executive will be required to do a
considerable amount of driving in connection with his duties as President of the
Corporation, the Corporation shall provide to Executive an automobile of
Executive's choice, such choice to be subject to approval by the Board of
Directors, and will pay all reasonable costs relating to the operation of such
automobile in connection with such duties, including gas, maintenance, and
insurance (including covering any deductible).
6.4 Until Executive and his spouse reach age 65, the Executive and
his spouse shall continue to be covered by the Corporation's health insurance
and medical reimbursement plans. Thereafter, the Corporation shall provide to
the Executive and his spouse Medicare supplemental health insurance coverage
until the death of the Executive and his spouse. This Section 6.4 shall survive
the termination of this Agreement for any reason, except, the benefits shall
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immediately cease upon: (i) a termination for cause pursuant to Section 11 of
this Agreement, and (ii) upon the violation by the Executive of the provisions
of either Section 12 or 13 of this Agreement.
7. Expenses. It is contemplated that, in connection with his
employment hereunder, Executive may be required to incur reasonable travel,
entertainment, and other business expenses. In this regard, Executive shall be
entitled to be reimbursed for (a) membership dues and costs related to social,
dining, and/or country clubs of his choosing up to a maximum of $50,000 annually
and (b) first-class airfare and railroad expenses. To the extent not otherwise
reimbursed under Section 6.3, the Corporation agrees to pay, or reimburse
Executive for, all reasonable and necessary travel, entertainment, and other
business expenses incurred or expended by him incident to the performance of his
duties and responsibilities hereunder, only upon: (i) submission by Executive to
the Corporation of vouchers or expense statements evidencing the expenses for
which reimbursement is sought; and (ii) written approval of such expenses by a
member of the Compensation Committee of the Board of Directors.
8. Vacations. Executive shall be entitled to vacations in accordance
with the Corporation's normal vacation policies for senior executives, which
vacations shall be taken at times consistent with the effective discharge of
Executive's duties.
9. Disability. In the event that Executive shall be incapacitated by
reason of mental or physical disability or otherwise during the term of
employment so that he is prevented from substantially performing his duties and
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services hereunder for a period of 180 days during any twelve (12) month period,
the Corporation shall have the right to terminate Executive's employment under
this Agreement by sending written notice of such termination to Executive, and
thereupon his employment hereunder shall terminate. Upon such termination,
Executive shall be entitled, subject to the limitations provided herein, to
receive the compensation provided for in Section 4 hereof and the benefits
provided for in Section 5 hereof for two (2) years following the date of
termination, and shall continue to be entitled to any benefits in which he
otherwise is vested pursuant to this Agreement, including, but not by way of
limitation, the Additional Compensation provided for in Section 5 hereof;
provided that if Executive is receiving payments through a disability policy
maintained by the Corporation (other than a group policy maintained on behalf of
all executives), such payments shall be deducted from the amounts to be paid by
the Corporation to Executive during such period. Executive shall accept such
payment in full discharge and release of the Corporation of and from any further
obligations under this Agreement.
10. Death. In the event of Executive's death during the term of this
Agreement, Executive's designated beneficiary or, if no such beneficiary shall
have been designated by Executive, the personal representative of Executive
shall be entitled to receive and shall be paid by the Corporation, the
compensation provided for in Section 4 hereof, subject to the limits set forth
therein, for two (2) years following the date of Executive's death, and shall
continue to be entitled to any benefits in which he otherwise is vested pursuant
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to this Agreement, including, but not by way of limitation, the Additional
Compensation provided for in Section 5 hereof; provided that if Executive is
receiving or is entitled to receive payments through a death benefit insurance
policy maintained by the Corporation (other than a group policy maintained in
behalf of all executives) such payments shall be deducted from the amounts to be
paid by the Corporation to Executive during such period. Executive's designated
beneficiary or personal representative, as the case may be, shall accept such
payment in full discharge and release of the Corporation of and from any further
obligations under this Agreement.
11. Termination for Cause.
11.1. The Corporation shall have the right to terminate the
employment of Executive hereunder for cause at any time if:
11.1.1. Executive shall be convicted, by a court of competent and
final jurisdiction, of any crime (whether or not involving the Corporation or
any of its divisions, operations, subsidiaries or affiliated companies) which
constitutes a felony in the jurisdiction involved; or
11.1.2. Executive shall commit any act of fraud against or shall
breach a fiduciary obligation to the Corporation or any of its divisions,
operations, subsidiaries, or affiliated companies, provided that any such act
(or failure to act) shall be determined in good faith by the Board of Directors
to be material in respect of Executive's duties or functions hereunder; or
11.1.3. Executive shall fail or refuse to perform any of his
duties and responsibilities as required by, or shall otherwise breach, this
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Agreement, provided that termination of Executive's employment pursuant to this
Section 11.1.4 shall not constitute valid termination for cause unless Executive
shall first have received written notice from the Board of Directors of the
Corporation stating with specificity the nature of such failure or refusal and
affording Executive at least fifteen (15) days to correct the act or omission
complained of.
11.4. In the event that the employment of Executive shall be
terminated by the Corporation for cause pursuant to Section 11.1 hereof,
Executive shall be entitled to receive the salary provided for in Section 4
hereof, prorated through the end of the week in which such termination occurs
and such amounts as may be payable under the balance of the provisions in
Section 4, as specifically limited thereunder and in accordance with the terms
thereof. Executive shall accept such payment in full discharge and release of
the Corporation of and from any other further obligations under this Agreement,
including, but not by way of limitation, any obligations for Additional
Compensation pursuant to Section 5. Nothing contained in this Section 11 shall
constitute a waiver or release by the Corporation of any rights or claims it may
have against Executive for actions or omissions which may give rise to an event
causing termination of this Agreement pursuant to this Section 11.
12. Confidentiality; Injunctive Relief.
12.1. Executive recognizes and acknowledges that the knowledge,
information, and relationship with resources, suppliers, and customers of the
Corporation, and the knowledge of the Corporation's business methods, systems,
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plans, and policies which he has heretofore and shall hereafter receive or
obtain as an employee of the Corporation, are valuable and unique assets of the
business of the Corporation. Accordingly, Executive agrees that he will not,
during or after the term of this Agreement, except if required in connection
with his duties as the President of the Corporation, and for a period of three
(3) years thereafter, disclose or use, without the prior written consent of the
Board of Directors of the Corporation, directly or indirectly, any non-public
information (whether written or unwritten) relating to the Corporation or any of
its divisions, operations, subsidiaries or affiliated companies, or any of their
respective management, financial condition, subscription, mailing or customer
lists, sources of supply, business, personnel, policies, or prospects, to any
individual or entity for any purpose whatsoever. The provisions of this Section
12.1 shall not apply to information which is or shall become generally known to
the public or the trade (except by reason of Executive's breach of his
obligations hereunder), information which is or shall become available in trade
or other publications, or information which Executive is required to disclose by
order of a court of competent jurisdiction (but only to the extent specifically
ordered by such court and, when reasonably possible, if Executive shall give the
Corporation prior notice of such intended disclosure so that it has the
opportunity to seek a protective order if it deems appropriate).
12.2. Executive acknowledges and agrees that all memoranda, notes,
reports, records, and other documents made or compiled by Executive, or made
available to Executive prior to or during the term of this Agreement, concerning
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the Corporation's business, shall be the Corporation's property and shall be
delivered to the Corporation on the termination of Executive's employment
hereunder or at any other time on request by the Board of Directors of the
Corporation.
12.3. The provisions of this Section 12 shall survive the
termination or expiration of Executive's employment hereunder, irrespective of
the reason therefor, for a period of three (3) years.
13. No Raid; Non-Compete.
13.1. Executive agrees that, for a period of three (3) years after
the date of the termination of Executive's employment under this Agreement,
Executive shall not, without the prior written approval of the Board of
Directors of the Corporation, directly or indirectly though any other person,
firm or corporation, solicit, raid, entice, or induce any person who is, at the
time of such solicitation or was at any time during the eighteen (18) months
immediately preceding such solicitation, raid, enticement, or inducement, an
employee of the Corporation or any of its subsidiaries or affiliates, to become
employed by such person, firm, or corporation, and Executive shall not approach
any such employee for such purpose or authorize or knowingly approve the taking
of such actions by any other person.
13.2. For a period of three (3) years after the date of the
termination of Executive's employment under this Agreement, Executive will not,
whether individually or as a partner, owner, officer, director, stockholder, or
employee, own, manage, operate, or control or have a financial interest in, or
serve as a consultant to, any person, firm, corporation, or other entity which
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is engaged in any business activity in competition with the business of the
Corporation in the markets in which the Corporation competes. The foregoing
restrictions shall not be deemed to include Executive's direct or indirect
ownership of any securities in a publicly-traded business entity which does not,
and will not with the passage of time, result in his obtaining, directly or
indirectly, more than two percent (2%) of the securities of such entity.
Notwithstanding the foregoing, the restrictions imposed on Executive under this
paragraph 13.2 shall cease to apply:
13.2.1. Eighteen (18) months after the scheduled termination
(including any extension thereof) of Executive's employment under paragraph 1
hereof; or
13.2.2. Twenty four (24) months after: (i) a majority of the
stock of the Company is sold; or (ii) a majority of the partnership interests in
Rose Partners, L.P. is sold; in each event the term sold means a sale to a
person or entity that is not related (directly or indirectly) to the selling
stockholders or the selling partners.
13.3. The provisions of this Section 13 shall survive the
termination or expiration of Executive's employment hereunder, irrespective of
the reason therefor.
14. Injunctive Relief.
14.1. Executive acknowledges that the services to be rendered by
him are of a special, unique, and extraordinary character, and if he violates
any of the provisions of this Agreement with respect to confidentiality,
non-competition, or solicitation, the Corporation would sustain irreparable
harm. Accordingly, Executive consents and agrees that if he violates any of the
provisions of Sections 12 or 13 hereof, in addition to any other remedies which
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the Corporation may have under the Agreement or otherwise, the Corporation shall
be entitled to apply to any court of competent jurisdiction for an injunction
restraining Executive from committing or continuing any such violation of this
Agreement, and Executive shall not object to any such application. Nothing in
this Agreement shall be construed as prohibiting the Corporation from pursuing
any other remedy or remedies including, without limitation, recovery of damages.
14.2. The provisions of this Section 14 shall survive the
termination or expiration of Executive's employment hereunder, irrespective of
the reason therefor.
15. Deductions and Withholding. Executive agrees that the Corporation
shall withhold from any and all payments and compensation required to be made to
Executive pursuant to this Agreement all Federal, state, local, and/or other
taxes which the Corporation determines are required to be withheld in accordance
with applicable statutes and/or regulations from time to time in effect.
16. No Conflict. Executive represents and warrants that there is no
restriction, agreement or limitation on his right or ability to enter into and
perform the terms of this Agreement.
17. Miscellaneous.
17.1. This Agreement cancels and supersedes any and all prior
agreements and understandings between the parties hereto respecting the
employment of Executive by the Corporation and constitutes the complete
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understanding between the parties with respect to the employment of Executive
hereunder. No statement, representation, warranty, or covenant has been made by
either party with respect thereto except as expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument
signed by each of the parties hereto.
17.2. Waiver by either party hereto of any breach of default by the
other party to any of the terms and provisions of this Agreement, shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived.
17.3. All notices, consents, requests, demands, and other
communications hereunder shall be in writing and shall be delivered personally,
by internationally recognized public courier with confirmed receipt, e.g.,
Federal Express or sent by registered or certified mail, return receipt
requested, first class postage prepaid, to the other party hereto at its or his
address as set forth in the beginning of this Agreement. Either party may change
the address to which notices, requests, demands, and other communications
hereunder shall be directed by giving written notice of such change of address
to the other party in the manner above stated.
17.4. This Agreement shall inure to the benefit of and shall be
binding upon the heirs, executors, administrators, successors, and legal
representatives of Executive and shall inure to the benefit of and be binding
upon the Corporation and its successors. This Agreement is personal as to
Executive and Executive may not assign, transfer (except to his heirs or
devisees), pledge, encumber, hypothecate, or otherwise dispose of this Agreement
or any of his rights hereunder, and any such attempt of assignment, transfer,
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pledge, encumbrance, hypothecation, or other disposition shall be null and void
and without effect. The Corporation shall be entitled to assign this Agreement
without the prior written consent of Executive in connection with the merger or
consolidation of the Corporation with another corporation or the sale of all or
substantially all of the assets and business of the Corporation to another
corporation, provided that:
17.4.1. immediately after the consummation of such transaction,
the surviving or acquiring corporation shall have a net worth not less than the
net worth of the Corporation immediately prior to such transaction; and
17.4.2. the surviving or acquiring corporation shall agree in
writing to accept an assignment of this Agreement, thereby acquiring the
Corporation's rights and assuming the Corporation's obligations under this
Agreement.
17.5. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
17.6. The Section headings of this Agreement are for convenience of
reference only and shall not limit or define the text thereof.
17.7. In the event that any one or more of the provisions of this
Agreement shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected thereby.
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17.8. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which, when taken together
shall be deemed to constitute one and the same instrument.
17.9. Any dispute regarding this Agreement shall be resolved
exclusively by arbitration in New Jersey in accordance with the Employment
Rules, and under the aegis of the American Arbitration Association then in
effect. The Corporation shall pay Executive's reasonable legal expenses in
connection with any such arbitration; provided, however, that Executive shall
reimburse the Corporation for such expenses if the arbitrator(s) shall decide
the material issues in favor of the Corporation and provide for such repayment
in their award.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the day and year first above written.
Di GIORGIO CORPORATION
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: EVP
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
XXXXXXX X. XXXXXX
Confirmed and Approved:
/s/ Xxxx X. Xxxxxxxx
--------------------
XXXX X. XXXXXXXX, Chairman of the
Compensation Committee of the
Board of Directors
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