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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of this 31st day of May, 1997 (the "Effective Date"), by and between La
Victoria Foods, Inc., a California corporation (the "Company"), and Xxxxxx X.
Xxxxxxxx ("Employee"). In consideration of the mutual covenants set forth
below, the Company and Employee hereby agree as follows:
1. Employment. The Company hereby employs Employee, and Employee
hereby accepts employment by the Company, upon the terms and conditions
contained in this Agreement.
2. Term. Unless sooner terminated pursuant to the provisions of
Paragraph 7 hereof, the term ("Term") of the Company's employment of Employee
hereunder shall commence on the date hereof and continue until May 31, 2002;
provided, however, that this Agreement shall automatically renew each year for
an additional one-year term unless either party notifies the other party of its
intention not to renew at least 60 days prior to the expiration of the then
current term.
3. Services. Employee shall have the title of Chief Executive
Officer of the Company and shall perform such executive, administrative and
supervisory services and have such authority as are normally associated with
such position. Employee will report to the Company's Board of Directors.
Employee may delegate to other employees of the Company who are supervised by
Employee such of his duties as he considers are appropriate to so delegate, but
Employee shall nevertheless remain principally responsible for the outcome of
such delegated duties. The Company agrees that, other than occasional business
related travel, all services to be performed by Employee during the Term shall
be rendered in the Los Angeles, California metropolitan area.
4. Restrictive Covenant During Term. During the Term, Employee
shall devote his full time and services exclusively to the Company and will
not, without the prior written consent of the Board of Directors of the
Company, own, either directly or indirectly, any interest in, or serve as a
partner, officer, director, advisor or employee of, or act in any other similar
capacity for, any business or commercial enterprise which is competitive with
the business conducted at any time during the Term by the Company. However,
nothing contained in this Paragraph 4 shall be construed to prohibit Employee
from purchasing the capital stock or other securities of any corporation or
other business entity whose stock or securities are traded on any national or
regional securities exchange or in the national over-the-counter market.
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5. Compensation.
5.01 Base Salary. As compensation for the services to be
performed hereunder, Employee shall receive an annual salary ("Base Salary")
during the Term of $360,000. In addition to the foregoing, the salary
hereinabove set forth shall be subject to adjustment upward, but not downward,
in the sole and absolute discretion of the Company's Board of Directors. All
salary hereunder shall be payable in accordance with the Company's customary
payroll practices.
5.02 Bonuses. Employee shall be entitled to receive
bonuses as determined from time to time by the Board of Directors consistent
with past practices.
6. Employee Benefits.
6.01 Vacation and Sick Leave. Employee shall be
entitled to paid vacation and sick leave at the appropriate level reflected in
the Company's present vacation and sick leave plans.
6.02 Group Medical Insurance Benefits. The Company shall
provide for Employee and his dependents, at the Company's expense,
participation in medical, accident and dental insurance plans during the Term
equivalent to those benefits currently available to the Company's other
executive management level employees.
6.03 Business Expenses. Employee shall be entitled
to reimbursement by the Company for any ordinary and necessary expenses
reasonably incurred by Employee in the performance of his duties and in acting
for the Company during the Term, provided that:
(a) Each such expenditure is authorized by the
Board of Directors if over $5,000 in amount or if prior such expenditures for
that month exceed $7,500 in the aggregate (exclusive of airfare); and
(b) Employee furnishes to the Company records and
other documentary evidence satisfactory to it including, if such expenditure is
for entertainment or gifts, an account book, diary or similar record in which
Employee has recorded, at or near the time each expenditure was made, (1) the
amount of the expenditure, (2) the time, place, and nature of the entertainment
expense, or the date and description of the gift, (3) the business reason for
the expense and the business benefit derived or expected to be derived
therefrom, and (4) the names, occupations and other data concerning individuals
entertained or given gifts sufficient to establish their business relationship
to the Company.
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6.04 Automobile Allowance. The Company shall pay to
Employee a car allowance of $800 per month.
6.05 Indemnification. Employee shall have the full benefit
of all provisions of the Company's Articles of Incorporation and Bylaws
limiting the liability of Employee to the Company and its shareholders and
providing for indemnification of Employee in the circumstances described
therein.
7. Termination.
7.01 Termination for Cause. The Company may terminate the
employment of Employee at any time during the Term, without further obligation
or liability to Employee, by action of the Company's Board of Directors, for
cause. As used in this Paragraph 7.01, the term "cause" means the occurrence
of any of the following events:
(a) Employee's conviction of, or plea of nolo
contendere in, any criminal action involving a felony;
(b) Employee's use of drugs or alcohol to an
extent that such use interferes with the proper performance of his duties to
the Company after due notice and recovery opportunity; or
(c) Employee's recklessness or intentional
misconduct in the performance of his duties hereunder.
Termination pursuant to this Section 7.01 shall become effective upon receipt
by Employee of written notice from the Company of such termination.
7.02 Termination on Incapacity or Disability of Employee.
If, during the Term, Employee shall become incapacitated from fully performing
his duties in accordance with the terms hereof by reason of any statute, law,
ordinance, regulation, order, judgment or decree, or due to ill health or
disability, for a consecutive period of ten weeks or for an aggregate period of
sixteen weeks during any one year period, the Company may, at its option, by
action of its Board of Directors, terminate the employment of Employee by
paying to Employee an amount equal to two years of Base Salary, payable over
two years in accordance with the Company's normal payroll practices.
7.03 Death of Employee. This Agreement shall terminate
immediately upon the death of Employee. In such event, the Company shall pay to
the estate of Employee one month's of Base Salary.
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7.04 Termination Without Cause. The Company by action of
its Board of Directors may terminate this Agreement at any time during the Term
without cause by the payment to Employee of an amount equal to the greater of
(a) $1,980,000 or (b) such number of years as remains in the Term hereof times
$660,000.
8. Agency and Authority. Employee agrees that his employment by
the Company shall constitute him an agent for the Company only for such
purposes as are customary for his position. Employee agrees that he will not
act or purport to act in any way for the Company, except as to matters directly
related to his employment.
9. Severability. Nothing contained in this Agreement shall be
construed as requiring the commission of any act contrary to law, and wherever
there is any conflict between any provision of this Agreement and any present
or future statute, law, ordinance or regulation contrary to which the parties
have no legal right to contract, the latter shall prevail, but in such event,
the provision of this Agreement thus affected shall be curtailed and limited
only to the extent necessary to bring it within the requirements of the law. In
the event that any part, article, paragraph or clause of this Agreement shall
be held to be indefinite or invalid, the entire Agreement shall not fail on
account thereof, and the balance of the Agreement shall continue in full force
and effect.
10. Notices. Any notices required or permitted to be given under
this Agreement shall be in writing and shall be deemed given when delivered in
person or two days after the date deposited in the United States mail, postage
prepaid, addressed to the addresses of the parties set forth below, or such
addresses as shall be furnished in writing by any such party:
If to the Company:
La Victoria Foods, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
If to Employee:
Xxxxxx X. Xxxxxxxx
c/o La Victoria Foods, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
11. Amendment. Any waiver, alteration or modification of any of
the provisions of this Agreement or cancellation or replacement of this
Agreement shall not be
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valid unless made in writing and signed by the parties hereto.
12. Governing Law. This Agreement shall be construed and governed
in accordance with the laws of the State of California applicable to contracts
executed and to be wholly performed within the State of California.
13. Waiver. Waiver by either party of the breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
14. Paragraph Headings. The headings of this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof
15. Entire Agreement. This Agreement contains all the terms and
conditions agreed upon by the parties hereto and sets forth the entirety of the
consideration to which Employee shall be entitled hereunder. No other
agreements, oral or otherwise, shall be deemed to exist or to bind any of the
parties hereto in any manner related to this Agreement. No officer or employee
of the Company has any authorization to make any representation or promise in
any manner related to this Agreement not contained in this Agreement, and
Employee agrees that he has not executed this Agreement in reliance upon any
such representation or promise. This Agreement cannot be modified or changed
except by written instrument, signed by both parties hereto.
16. Counterparts. This Agreement may be executed in a number of
counterparts, each of which shall be construed as an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LA VICTORIA FOODS, INC.
By: /s/ XXXXX XXX
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Xxxxx Xxx, Secretary
/s/ XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX
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