Exhibit 10.18
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT is made as of the 31st day of August, 2002
by and among PENNEXX FOODS, INC., formerly known as Pinnacle Foods, Inc., a
Pennsylvania corporation (the "Company"), SMITHFIELD FOODS, INC., a Virginia
corporation, XXXXXXX X. XXXXX, an individual, and XXXXX X. XXXXX, an individual
("Shore").
WITNESSETH:
The Company and Shore are parties to that certain Consulting Agreement
dated March 1, 2001 (the "Consulting Agreement") and that certain
Indemnification Agreement dated June 27, 2001 (the "Indemnification Agreement").
The parties to this Modification Agreement are parties to that certain
Standstill Agreement dated June 27, 2001 (the "Standstill Agreement") and that
certain Stock Purchase Agreement dated May 31, 2001 (the "Stock Purchase
Agreement"). The Company and Shore wish to terminate the Consulting Agreement
and the parties wish to modify the Standstill Agreement and the Stock Purchase
Agreement on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained in this Modification Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Consulting Agreement.
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(a) Termination. Except as and to the extent set forth in subparagraph (e) of
this Paragraph 1, the Consulting Agreement be and it hereby is terminated in all
respects effective as of the date set forth above.
(b) Installment Payment. For and in consideration of the termination of the
Consulting Agreement, Company shall and hereby agrees to pay Shore the sum of
One Hundred Fifty Thousand Dollars ($150,000) in twenty-six (26) equal biweekly
installments payable over the period from the date hereof to August 31, 2003.
(c) Health Insurance. The Company shall and hereby agrees to provide and pay for
the costs of medical and health insurance for Shore and Shore's wife for the two
year period ending August 31, 2004 with the same benefits as are provided
currently to senior executives of the Company.
(d) Company Property. Shore shall and hereby agrees immediately upon execution
of this Modification Agreement to return to the Company all advertising, sales,
and other materials or articles or information, including without limitation,
data processing reports, customer sales analyses, invoices, price lists or
information, samples, budgets, business
plans, strategic plans, financing applications, reports, memoranda,
correspondence, financial statements, and any other materials or data of any
kind furnished to Shore by Company or developed by Shore on behalf of Company or
at Company's direction or for Company's use in connection with Shore's
engagement under the Consulting Agreement.
(e) Non-Competition, Trade Secrets, Etc. Notwithstanding termination of the
Consulting Agreement, the provisions of paragraph 9 of the Consulting Agreement
shall survive termination in accordance with its terms.
2. Indemnification Agreement. Nothing contained in this Modification Agreement
shall affect or be deemed to affect the Indemnification Agreement which shall
survive execution and delivery of this Modification Agreement and shall remain
in full force and effect in accordance with its terms.
3. Standstill Agreement.
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(a) Termination of Shore's Obligations. From and after the date of this
Modification Agreement, all obligations of Shore contained in the Standstill
Agreement be and they hereby are terminated absolutely.
(b) No Other Change. Except to the extent modified by this Modification
Agreement, the Standstill Agreement shall survive execution and delivery of this
Modification Agreement in accordance with its terms.
4. Stock Purchase Agreement.
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(a) Termination of Shore's Obligations. From and after the date of this
Modification Agreement, all obligations of Shore contained in the Stock Purchase
Agreement be and they hereby are terminated absolutely.
(b) No Other Change. Except to the extent modified by this Modification
Agreement, the Stock Purchase Agreement shall survive execution and delivery of
this Modification Agreement in accordance with its terms.
5. Releases.
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(a) Release by Shore. Except for the obligations contained in this Agreement and
in the Indemnification Agreement, Shore, for himself and for his heirs, personal
representatives, successors, and assigns, jointly and severally, releases,
acquits, and forever discharges, and hereby does release, acquit, and forever
discharge each of the other parties to this Modification Agreement, and their
respective heirs, personal representatives, successors, and assigns, jointly and
severally, of and from all actions, causes of action, claims, suits, debts,
dues, accounts, bonds, covenants, contracts, agreements, judgments, damages, and
costs whatsoever in law or in equity including, without intending any limitation
on the generality of the foregoing, any claim concerning, related to, arising
out of, or in any way connected with the Standstill Agreement, the Consulting
Agreement, or the Stock Purchase Agreement which Shore, his heirs, personal
representatives, successors, or assigns, or any of them can, shall, or may have
from the beginning of the world to the date of this Modification Agreement.
(b) Release of Shore. Except for the obligations contained in this Agreement and
in the Indemnification Agreement, each of the parties to this Modification
Agreement other than Shore, for itself or himself and for its or his respective
heirs, personal representatives, successors, and assigns, jointly and severally,
releases, acquits, and forever discharges, and hereby does release, acquit, and
forever discharge Shore and his heirs, personal representatives, successors, and
assigns, jointly and severally, of and from all actions, causes of action,
claims, suits, debts, dues, accounts, bonds, covenants, contracts, agreements,
judgments, damages, and costs whatsoever in law or in equity including, without
intending any limitation on the generality of the foregoing, any claim
concerning, related to, arising out of, or in any way connected with the
Standstill Agreement, the Consulting Agreement, or the Stock Purchase Agreement
which such party, his or her heirs, personal representatives, successors, or
assigns, or any of them can, shall, or may have from the beginning of the world
to the date of this Modification Agreement.
6. Miscellaneous.
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(a) Indulgences, Etc. Neither the failure nor any delay on the part of any party
to exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict-of-laws doctrines of any jurisdiction to the
contrary, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
(c) Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given, made and received only when delivered (personally, by courier
service such FedEx or by other messenger) against receipt or upon actual receipt
of registered or certified mail, postage prepaid, return receipt requested,
addressed as set forth in the Consulting Agreement, the Standstill Agreement, or
the Stock Purchase Agreement.
(d) Binding Nature of Agreement; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns, except that no party may
assign or transfer its rights nor delegate its obligations under this Agreement
without the prior written consent of the other parties hereto.
(e) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this Agreement are independent of
and separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof. This Agreement may
not be modified or amended other than by an agreement in writing.
(h) Paragraph Headings. The Paragraph and subparagraph headings in this
Agreement have been inserted for convenience of reference only; they form no
part of this Agreement and shall not affect its interpretation.
(i) Gender, Etc. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
PENNEXX FOODS, INC.,
formerly known as PINNACLE FOODS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
/s/ Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx
SMITHFIELD FOODS, INC.
By: /s/ C. Xxxxx Xxxx
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C. Xxxxx Xxxx, President
/s/ Xxxxxxx X. Xxxxx (SEAL)
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Xxxxxxx X. Xxxxx
