EXHIBIT 10.66
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of this 31st day of December
1995, and amended as of 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 XXXX X. XXXXXXX (hereinafter referred to as
"Goucher").
WHEREAS, Goucher has served as President of X. X. Xxxxxxxx Company
since March 1993; and
WHEREAS, Xxxxxxx Foods and Goucher have agreed to enter into this
Agreement effective as of January 1, 1996.
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties agree that this Agreement is effective as of
January 1, 1996 as follows:
1. EMPLOYMENT AND DUTIES. Xxxxxxx Foods shall employ Goucher to
serve as President of X. X. Xxxxxxxx Company and in such capacity
Goucher 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, 1999 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 Xxxxxxx, Xxxxxxx Foods
agrees to pay to Goucher an annual Base Salary for each of the
calendar years of this Agreement from January 4, 1999 through
December 31, 1999 of at least $230,000 payable in substantially
equal semi-monthly installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. For each calendar year during the term of this
Agreement, Goucher 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 Goucher with medical
insurance and shall permit Goucher 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. Xxxxxxx is entitled to take vacations at reasonable
times and for customary and reasonable lengths of time
consistent with his overall responsibilities as
President of X. X. Xxxxxxxx Company.
d. Michael Foods shall reimburse Goucher for all
reasonable expenses incurred by Goucher in connection
with Xxxxxxx Foods' business, including but not limited
to,
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expenses of travel and entertainment, upon presentation
of itemized statements therefor.
5. EVENTS OF TERMINATION. The employment of Goucher hereunder shall
terminate as follows:
a. Upon the Incapacity or death of Goucher;
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 Xxxxxxx'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 Goucher has (i) committed an
illegal or dishonest act that directly reflects upon his
fitness to act as President of X. X. Xxxxxxxx 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
determination by Xxxxxxx Foods in its sole discretion
that Goucher is unable to perform his job
responsibilities as President of X. X. Xxxxxxxx Company
as a result of chronic illness, physical, mental or any
other disability for a period of six (6) months or more.
If Xxxxxxx'x employment is terminated under subsection
(a) or by Xxxxxxx Foods under subsection (b), Goucher
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 Xxxxxxx'x employment is terminated by
Goucher under subsection (b), Goucher shall receive no
termination payment; however, Goucher 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 Goucher is entitled to receive,
but in no event shall the date of payment be more than
90 days following termination of employment. If Xxxxxxx
Foods terminates Goucher under subsection (c) above, no
amount shall be paid beyond the last day of service by
Goucher and Goucher 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
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Foods without Cause in accordance with sub-paragraphs
a., b. and d. above, all options to purchase common
stock previously granted to Goucher shall become fully
vested and not subject to Xxxxxxx'x forfeiture.
If Xxxxxxx'x employment is terminated by Xxxxxxx Foods
under subsection (d), Goucher 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 1(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 A1TERED"
means, after any Change in Control and without Xxxxxxx'x
express written consent:
(i) the assignment to Goucher of any duties inconsistent
with Xxxxxxx'x positions, duties, responsibilities and
status with Xxxxxxx Foods immediately prior to a Change
in Control, or a change in Xxxxxxx'x reporting
responsibilities, titles or offices as in effect
immediately prior to a Change in Control, or any removal
of Goucher from, or any failure to re-elect Goucher to,
any of such positions, except in connection with the
termination of Xxxxxxx'x employment for Cause, upon the
Incapacity or death of Goucher, or upon the voluntary
termination by Goucher;
(ii) a reduction in Xxxxxxx'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;
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(iii) Xxxxxxx Foods requiring Goucher to be based
anywhere other than the geographic location at which
Goucher was based immediately preceding the Change in
Control except for required travel on business to an
extent substantially consistent with the business travel
obligations Goucher 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 Goucher was participating immediately preceding
any Change in Control; the taking of any action by
Xxxxxxx Foods not required by law which would adversely
affect Xxxxxxx'x participation in or materially reduce
Xxxxxxx'x benefits under any of such plans or deprive
Goucher of any material fringe benefit enjoyed by
Goucher 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
Goucher with the number of paid vacation days, holidays
and personal days to which Goucher 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. WAIVE. 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 Goucher by first class, certified mail, postage
prepaid, return receipt requested, addressed as follows:
XXXX X. XXXXXXX
0000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
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
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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
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Its Vice President - Finance
---------------------------------
/s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX
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