Exhibit 10.31
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of November 1, 1996, by and between VAN XX
XXXX'X, INC. (the "Company"), a Delaware corporation, and XXXXXXX X. XXXXX (the
"Employee").
W I T N E S S E T H:
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WHEREAS, upon the terms and subject to the conditions of this Agreement,
the Company desires to employ the Employee and the Employee desires to accept
employment by the Company;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Employment. Upon the terms and subject to the conditions of this
Agreement, the Company hereby employs the Employee and the Employee hereby
accepts employment with the Company in the capacities hereinafter set forth.
2. Term of Employment. Except as provided in Section 6, the term (the
"Term") of this Agreement shall commence as of the date hereof and shall
continue in effect through September 30, 1998; provided that the Term of this
Agreement shall be automatically extended for successive annual periods of 12
months each commencing on September 30, 1998.
3. Duties; Extent of Services.
(a) Duties. During the Term, the Employee shall serve in such executive
capacity as may be reasonably designated by the board of directors of the
Company (the "Board"), initially as Vice President-Manufacturing and
Distribution of the Company, and shall, in accordance with and subject to the
provisions of the By-laws (as amended from time to time) of the Company and as
set forth in Schedule A hereto, perform the duties, undertake the
responsibilities and exercise the authority customarily performed, undertaken
and exercised by a person in such position in the business in which the Company
is engaged. The Employee shall report to and carry out the lawful directions of
the Board.
(b) Extent of Services. Except for illness and permitted vacation
periods, during the Term the Employee shall (i) devote his full time and
attention during normal business hours to the businesses of the Company and its
subsidiaries and affiliates; (ii) use his best efforts to promote the interests
of the Company and its subsidiaries and affiliates; (iii) discharge such
executive and administrative duties not inconsistent with his position as
may be assigned to him by the Board; and (iv) serve, without additional
compensation, as a director or officer of any subsidiary of the Company if
elected as such.
4. Compensation.
(a) Base Salary. In consideration of the services rendered by the
Employee hereunder and provided that the Employee has substantially performed
all of his obligations provided for herein, the Company will pay to the Employee
a base salary (the "Base Salary") at the rate of $140,000 per year during the
Term. The Base Salary shall be paid in accordance with the Company's normal
payroll practice and shall be subject to annual review by the Board; provided,
that the Base Salary shall not be subject to reduction.
(b) Base Bonus. The Company shall pay the Employee a bonus with
respect to each fiscal year or portion thereof during the Term in accordance
with the following provisions:
(i) If the Financial Results of the Company for a fiscal year
during the Term are at least 90% but less than 95% of the EBITDA
Target for such year, Employee shall be paid an amount equal to 20% of
so much of his Base Salary as was paid with respect to such year.
(ii) If the Financial Results of the Company for a fiscal year
during the Term are at least 95% but less than 100% of the EBITDA
Target for such year, Employee shall be paid an amount equal to 30% of
so much of his Base Salary as was paid with respect to such year.
(iii) If the Financial Results of the Company for a fiscal year
equal or exceed 100% of the EBITDA Target for such year, Employee
shall be paid an amount equal to 40% of so much of his Base Salary as
was paid with respect to such year.
(c) Supplemental Bonus. In addition to the Base Bonus, if any, to
which the Employee may be entitled under Section 4(b), the Company shall pay the
Employee a bonus with respect to such fiscal year or portion thereof during the
Term in accordance with the following provisions:
(i) If the Financial Results of the Company for a fiscal year
during the Term are at least 105%, but less than 110% of the EBITDA
Target for such year, Employee shall be paid an amount equal to 5% of
so much of his Base Salary as was paid with respect to such year.
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(ii) If the Financial Results of the Company for a fiscal year
during the Term are at least 110%, but less than 115% of the EBITDA Target
for such year, Employee shall be paid an amount equal to 10% of so much of
his Base Salary as was paid with respect to such year.
(iii) If the Financial Results of the Company for a fiscal year
during the Term are at least 115% but less than 120% of the EBITDA Target
for such year, the employee shall be paid an amount equal to 15% of so much
of his Base Salary as was paid with respect to such year.
(iv) If the Financial Results of the Company for a fiscal year
during the Term equal or exceed 120% of the EBITDA Target for such year,
the Employee shall be paid an amount equal to 20% of so much of his Base
Salary as was paid with respect to such year.
(d) For the purpose of this Agreement (1) the term "EBITDA Target" shall
mean the Company's projected earnings before interest, taxes, one-time
transition expenses, depreciation and amortization, as contained in the
Company's annual budget which is approved by the Board (without reference to
any adjustments or revision, upwards or downwards, to such projected earnings
which are subsequently approved by the Board as part of any subsequent revision
to such annual budget), (2) the term "Financial Results" shall mean the
Company's annual financial results reflected in the Company's annual audited
financial statements and (3) the Company's 1997 fiscal year shall be deemed to
begin as of the date hereof.
(e) The bonus due under Section 4(b) and (c) shall be paid to the
Employee within 30 days of the publication of the Company's annual audited
financial statements for the relevant year.
5. Other Employee Benefits. During the Term, the Employee shall be
entitled (i) to vacation time in accordance with the Company's policy from time
to time in effect; (ii) to participate in all employee insurance and other
fringe benefit programs, including, without limitation, life, health, dental and
accident insurance plans and long term disability now or hereafter maintained by
the Company for senior executive or other salaried personnel for which the
Employee is eligible; (iii) to participate in a pension plan with terms similar
to those applicable to executives of the Company; and (iv) to participate in the
VDK incentive compensation plan.
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6. Termination Provisions.
(a) Termination for Cause. The Board may terminate the Employee's
employment hereunder for Cause, as hereinafter defined, immediately upon written
notice to the Employee. For purposes of this Agreement, "Cause" shall mean (A)
proven dishonesty of the Employee detrimental to the best interests of either
the Company or any of its subsidiaries or affiliates or conviction of the
Employee of a crime which constitutes a felony, (B) any material act or omission
by the Employee during the Term involving willful malfeasance or gross
negligence in the performance of his duties hereunder, or (C) repeated failure
of the Employee to follow the reasonable instructions of the Board (other than
inattention or neglect resulting from illness or disability of the Employee)
which inattention and neglect does not cease within fifteen days after written
notice thereof specifying the details of such conduct is given by the Board to
the Employee. During the Term, the Employee shall be entitled to only one such
notice and right to cure for any single act or event. If the Employee's
employment is terminated for Cause, the Employee shall be entitled to receive
only the unpaid portion of the Base Salary then in effect which has accrued to
the date of termination.
(b) Termination By Reason of Permanent Disability. If at any time
during the Term an independent licensed physician selected by the Board
determines that the Employee has been or will be unable, as a result of physical
or mental illness or incapacity, to perform his duties hereunder for a period of
four consecutive months or for an aggregate of more than six months in any
twelve month period (a "Permanent Disability"), the Employee's employment
hereunder may be terminated by the Board upon thirty days' written notice to the
Employee. If the Employee's employment is terminated by reason of Permanent
Disability, the Employee shall be entitled to receive only the sum of (x) the
unpaid portion of the Base Salary then in effect which has accrued to the date
of termination plus (y) an amount equal to six months of Employee's Base Salary
plus (z) an amount equal to a pro rata portion of the Base Bonus payable
pursuant to Section 4(b)(iii) hereof assuming that the Financial Results of the
Company for the then current fiscal year equal exactly 100% of the EBITDA Target
for such year, with such pro rata portion based on the actual number of days
during such fiscal year that Employee was employed by the Company.
(c) Termination By Reason of Death. The Employee's employment
hereunder shall automatically terminate on the date of his death. If the
Employee's employment is so terminated by his death, the Company shall pay to
the Employee's estate in addition to the unpaid portion of the Base Salary then
in effect through date of Employee's death the sum of (y) an amount equal to six
months of Employee's Base Salary plus (z) an amount equal to a pro rata portion
of the Base Bonus payable pursuant to Section 4(b)(iii) hereof assuming that the
Financial Results of the Company for the then current fiscal year equal exactly
100% of the EBITDA Target for such year, with such pro rata portion based on
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the actual number of days during such fiscal year that Employee was employed by
the Company. Such amount shall be paid within thirty days after the date of his
death if a personal representative has been appointed by the end of such thirty
day period or, if a personal representative has not been appointed by the end of
such thirty day period, promptly after a personal representative has been
appointed.
(d) Termination Without Cause. The Board may terminate the Employee's
employment hereunder at any time for any reason without Cause in which case the
Employee shall be entitled to receive an amount (the "Severance Amount") equal
to the sum of (y) an amount equal to the greater of (i) one year's Base Salary
then in effect, or (ii) the Base Salary the Employee would have been entitled to
receive through the end of the Term plus (z) an amount equal to a pro rata
portion of the Base Bonus payable pursuant to Section 4(b)(iii) hereof assuming
that the Financial Results of the Company for the then current fiscal year equal
exactly 100% of the EBITDA Target for such year, with such pro rata portion
based on the actual number of days during such fiscal year that Employee was
employed by the Company. The Severance Amount shall be in lieu of any other
severance payment to which Employee may be otherwise entitled under any other
severance plan maintained by the Company. The Severance Amount shall be paid
within 30 days of such termination.
(e) Change of Control. This Agreement may be assigned in connection with a
Change of Control (as defined below) as provided in Section 8(a) hereof. In the
event of a Change of Control:
(i) the employee shall have no obligation to move to a new work
location that is more than 50 miles from the Employee's principal work
location immediately prior to such Change of Control;
(ii) the amount of Base Salary set forth in Section 4(a) hereof and
the base bonus opportunities set forth in Section 4(b) hereof shall not be
subject to reduction;
(iii) the Employee's title, duties and responsibilities as set forth
in Section 3(a) hereof shall not be subject to reduction; and
(iv) the Employee's reasonable, documented business expenses shall
continue to be reimbursed in a manner consistent with the Company's
reimbursement practice prior to such Change of Control.
Following a Change of Control, the failure by the Company (or its successor or
assign) to comply with any of subparagraphs (i)-(iv) shall permit the Employee
to terminate this Agreement for "Good Reason", on written notice to the Company
(or its successor or
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assign). In the event the Employee terminates this Agreement for Good Reason,
the Employee shall be entitled to receive the Severance Amount. The Severance
Amount shall be in lieu of any other severance payment to which the Employee may
otherwise be entitled under any other severance plan maintained by the Company
(or its successor or assign). The Severance Amount shall be paid within 30 days
of such termination.
For purposes of this Agreement, a "Change of Control" shall mean (i)
the sale, exchange or other disposition of (A) more than 50% of the issued and
outstanding shares of the Company, (B) more than 50% of the issued and
outstanding shares of VDK Holdings, Inc., the parent of the Company, or (C) more
than 50% of the voting units of limited liability company interests of VDK Foods
LLC, the parent of VDK Holdings, Inc., in each case to or with a person or
entity other than the Company, VDK Holdings, Inc. or VDK Foods LLC or an
affiliate of the Company, VDK Holdings, Inc. or VDK Foods LLC, (ii) the sale of
all or substantially all of the assets of the Company to a person or entity
other than the Company, VDK Holdings, Inc. or VDK Foods LLC or an affiliate of
any of them, or (iii) the merger, consolidation or other business combination of
the Company, VDK Holdings, Inc. or VDK Foods LLC with or into another entity
that is either not, or not controlled by, the Company, VDK Holdings, Inc., VDK
Foods LLC or an affiliate of any of them.
7. Covenants of the Employee.
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(a) Non-Competition. Except with respect to a termination described
in Section 6(b) or 6(d) hereof, until the first anniversary of the date of the
termination of the Employee's employment hereunder, the Employee shall not,
directly or indirectly, be associated with any entity which competes with the
Company and whose primary business is, or personally engage in, the same line of
business of the Company, whether as a director, officer, employee, agent,
consultant, partner, owner, independent contractor or otherwise.
(b) Non-Solicitation of Employees of the Employer. Until the first
anniversary of the date of the termination of the employment of the Employee
hereunder, the Employee shall not, and shall cause each business or entity with
which he shall become associated in any capacity not to, solicit for employment
or employ any person who is then, or who was at any time after the date four
months prior to the date of such termination, employed in a professional or
managerial position by the Company, its subsidiaries or affiliates.
(c) Confidentiality. The Employee agrees and acknowledges that the
Confidential Information (as hereinafter defined) of the Company and its
subsidiaries and affiliates, is valuable, special and unique to their business;
that such business depends on such Confidential Information; and that the
Company wishes to protect such Confidential
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Information by keeping it confidential for the use and benefit of the Company
and its subsidiaries and affiliates. Based on the foregoing, the Employee
agrees to undertake the following obligations with respect to such Confidential
Information:
(i) the Employee agrees to keep any and all Confidential
Information in trust for the use and benefit of the Company and its
subsidiaries and affiliates;
(ii) the Employee agrees that, except as required by applicable
law or as authorized in writing by the Board, he will not at any time
during or after the termination of his employment hereunder, disclose,
directly or indirectly, any Confidential Information of the Company or
any of its subsidiaries or affiliates;
(iii) the Employee agrees to take all reasonable steps
necessary, or reasonably requested by the Company, to ensure that all
Confidential Information is kept confidential for the use and benefit
of the Company and its subsidiaries and affiliates; and
(iv) the Employee agrees that, upon termination of his
employment hereunder or at any other time the Company may in writing
so request, he will promptly deliver to the Company all materials
constituting Confidential Information (including all copies thereof)
that are in his possession or under his control. The Employee further
agrees, that if requested by the Company, to return any Confidential
Information pursuant to this subparagraph (iv), he will not make or
retain any copy or extract from such materials.
For purposes of paragraph (c) of this Section 7, "Confidential
Information" means any and all information developed by or for the Company or
any of its subsidiaries or affiliates of which the Employee gains or has
acquired knowledge during or prior to the Term by reason of his employment with
the Company that is (A) not generally known in any industry in which the Company
or any of its subsidiaries or affiliates is or may become engaged or (B) not
publicly available. Confidential Information includes, but is not limited to,
any and all information developed by or for the Company or any of its
subsidiaries or affiliates concerning plans, marketing and sales methods,
customer lists, materials, processes, business forms, procedures, devices, plans
for development of products, services or expansion into new areas or markets,
internal operations, and any trade secrets and proprietary information of any
type owned by the Company or any of its subsidiaries or affiliates, together
with all written, graphic and other materials relating to all or any part of the
same.
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8. Successors; Assignment.
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(a) The Company. The Company may assign any of its rights and
obligations hereunder, without the written consent of the Employee, in
connection with a Change of Control. This Agreement shall be binding upon and
shall inure to the benefit of the Company and its successors and assigns.
(b) The Employee. Neither this Agreement nor any right or interest
hereunder may be assigned by the Employee, his beneficiaries, or legal
representatives without the prior written consent of the Board; provided,
however, that nothing in this Section 8 shall preclude (i) the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death, or (ii) the executors, administrators, or other legal representatives of
the Employee or his estate from assigning any rights hereunder to distributes,
legatees, beneficiaries, testamentary trustees or other legal heirs of the
Employee.
9. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given when delivered by hand, mailed
by first-class registered or certified mail, postage prepaid and return receipt
requested, or delivered by overnight courier addressed as follows:
(i) If to the Company:
Van xx Xxxx'x, Inc.
0000 Xx. Xxxxx Xxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
VDK Foods LLC
c/o Dartford Partnership, L.L.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
(ii) If to the Employee:
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
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or, in each case, at such other address as may from time to time be specified to
the other party in a notice similarly given.
10. Governing Law; Expenses.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the conflicts of law principles thereof.
(b) Expenses. All costs and expenses (including attorneys' fees)
incurred in connection with any claim, dispute or litigation pertaining to
this Agreement shall be paid by the party incurring such expenses.
11. Entire Agreement. This Agreement contains the entire agreement
of the parties and their affiliates relating to the subject matter hereof and
supersedes all prior agreements, representations, warranties and understandings,
written or oral, with respect thereto.
12. Severability. If any term or provision of this Agreement or the
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons, property or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall remain valid and enforceable to
the fullest extent permitted by law.
13. Remedies.
(a) Injunctive Relief. The Employee acknowledges and agrees
that the covenants and obligations of the Employee contained in subsections (a),
(b) and (c) of Section 7 hereof relate to special, unique and extraordinary
matters and are reasonable and necessary to protect the legitimate interests of
the Company and its subsidiaries and affiliates and that a breach of any of the
terms of such covenants and obligations will cause the Company irreparable
injury for which adequate remedies at law are not available. Therefore the
Employee agrees that the Company shall be entitled to an injunction,
restraining order, or other equitable relief from any court of competent
jurisdiction, restraining the Employee from any such breach.
(b) Remedies Cumulative. The Company's rights and remedies
under this Section 13 are cumulative and are in addition to any other rights and
remedies the Company may have at law or in equity.
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14. Withholding Taxes. The Company may deduct any federal, state or
local withholding or other taxes from any payments to be made by the Company
hereunder in such amounts which the Company reasonably determine are required to
deduct under applicable law.
15. Amendments, Miscellaneous, etc. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated except by an
instrument in writing signed by the party against which such change, waiver,
discharge or termination is sought to be enforced. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
and all of which together shall constitute one and the same instrument. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
VAN XX XXXX'X, INC.
By: /s/ X. Xxxxxxxxx
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Name: X. XXXXXXXXX
Title: President
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
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SCHEDULE A
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RESPONSIBILITIES OF VICE PRESIDENT -
MANUFACTURING AND DISTRIBUTION
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Reporting to the President, the Vice President of Manufacturing and
Distributing is responsible for all aspects of product planning, conversion,
packaging and distribution for the company's three manufacturing facilities. He
also has direct responsibility for the customer service, order fulfillment,
distribution and quality assurance functions. He is indirectly responsible for
the consumer affairs and regulatory functions of the company. His key
responsibilities are as follows:
. Lead the Supply Chain initiative to significantly reduce
operating costs and improve asset utilization.
. Optimize the distribution network.
. Develop and implement the staff, systems and procedures to ensure
product availability in excess of 99%.
. Ensure that the appropriate quality programs are in place that
optimize weight control and ensure product and consumer safety.
. Ensure that the appropriate safety programs are in place to
ensure employee well-being.
. Develop and implement the strategic direction for the consumer
affairs department.
. Ensure compliance with all Local, State and Federal regulations.
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