Exhibit 10.3
EMPLOYMENT AGREEMENT dated as of
December 31, 1996, between CFP HOLDINGS,
INC., a Delaware corporation (the
"Company"), and ▇▇▇▇ ▇. EK (the
"Executive").
The Company and the Executive are parties to the Employment
Agreement dated as of June 30, 1993 (the "Original Employment Agreement"). The
Company and the Executive desire to terminate the Original Employment Agreement
as of the date hereof and to continue the employment relationship between the
Company and the Executive from and after the date hereof pursuant to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties agree as follows:
SECTION 1. Employment. The Company hereby employs the Executive and
the Executive hereby accepts employment by the Company upon the terms and
conditions hereinafter set forth.
SECTION 2. Term. The employment of the Executive hereunder shall be
for the period (the "Employment Period") commencing on the date hereof (the
"Commencement Date") and ending on (a) December 31, 1999 (the "Scheduled
Termination Date"), or (b) such earlier date (the "Termination Date") upon which
the employment of the Executive shall terminate in accordance with the
provisions hereof. The Employment Period may be extended at the sole discretion
of the Company for an additional 90-day period to facilitate contract
negotiations in the event the Company desires to retain the services of the
Executive following the expiration of the Employment Period.
SECTION 3. Duties. During the Employment Period, the Executive shall
be employed as Vice President and Chief Financial Officer of the Company, CFP
Group, Inc., the parent of the Company (the "Parent"), and Custom Food Products,
Inc., a wholly-owned subsidiary of the Company ("Custom Food"), and shall
perform such duties as are consistent therewith. The Executive shall further
serve as a member of the Board of Directors of the Company (the "Board"), the
Parent and Custom Food and shall have such other titles and duties, consistent
with the status of a senior level executive of the Company, as the Board shall
in its sole discretion designate. The Executive shall use his best efforts to
perform well and faithfully the foregoing duties and responsibilities.
SECTION 4. Time to be Devoted to Employment. During the Employment
Period, the Executive shall devote all of his working time, attention and
energies to the business of the Company and its subsidiaries (except for
vacations to which he is entitled pursuant to Section 6(b) and except for
illness or
incapacity). During the Employment Period, the Executive shall not engage in any
business activity which, in the reasonable judgment of the Board, conflicts with
the duties of the Executive hereunder, whether or not such activity is pursued
for gain, profit or other pecuniary advantage. Nothing contained in this Section
4 shall prohibit the Executive from (a) owning up to 1% of the outstanding
capital stock or other class of securities of any corporation whose shares are
traded on a national securities exchange or are listed on NASDAQ or (b) making
other passive investments in entities which do not compete in any manner with
the Company after obtaining the prior written consent of the Board.
SECTION 5. Compensation; Bonus. (a) The Company (or at the Company's
option, any subsidiary or affiliate thereof) shall pay to the Executive an
annual base salary (the "Base Salary") during the Employment Period of $165,200
per annum, payable in such installments (but not less often than monthly) as is
generally the policy of the Company with respect to its officers.
(b) Subject to the last sentence of this Section 5(b), as of
July 1 of each year during the Employment Period (each such year, an "Adjustment
Year") commencing July 1, 1997, the Executive's Base Salary shall be subject to
increase by a percentage of the Executive's Base Salary equal to the percentage
increase, if any, in the United States Department of Labor, Bureau of Labor
Statistics, Consumer Price Index for Urban Wage Earners, "all items" for the
city or metropolitan area to which Montebello, California bears the closest
geographic proximity, or any successor or substitute index reasonably selected
by the Company (the "Index Year"). The Company shall calculate any increase as
soon as practicable after the Consumer Price Index information for June of the
Index Year is made available and any such increase shall be effective on July 1
of the Adjustment Year. Any increase in Base Salary pursuant to this Section
5(b) shall be added to the Base Salary then being paid to the Executive, and the
sum thereof shall then become the Base Salary for each successive year, until
further adjusted in accordance with the provisions of this Section 5(b).
Anything contained herein to the contrary notwithstanding, any increase in Base
Salary pursuant to this Section 5(b) shall be offset against any other increase
in Base Salary to which the Executive might, in the discretion of the Board of
Directors of the Company, become entitled.
(c) In addition to the Base Salary, the Executive shall be
eligible to participate in the Company's annual cash bonus plan based upon
achieving and exceeding the annual performance targets for Custom Food as
follows:
(i) In respect of each of the 1997 through 1999 fiscal
years (each, a "Bonus Year"), the Company shall
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award a cash bonus (the "Annual Cash Bonus"), if any, of between 30% and
100% of the Executive's Base Salary, depending upon the percentage of
Annual Budgeted EBITDA of Custom Food (as hereinafter defined) attained,
according to the following schedule:
Annual Budgeted EBITDA
of Custom Food Cash Bonus as % of
% Attained Base Salary
-------------------------------- ----------------------------
less than 80% 0%
80% 30%
90% 40%
100% 50%
110% 75%
125% and above 100%
, provided, however, that in each Bonus Year (as long as the Employee has
been continuously employed throughout such year), the Executive's Annual
Cash Bonus shall be at least $25,000 (the "Minimum Annual Bonus").
(ii) As used herein, the following terms shall have the
following meanings:
(A) "Annual Budgeted EBITDA" for Custom Food for
the fiscal year ended December 31, 1997 equals $12,200,000 and for each
subsequent fiscal year means the figure set by the Board on a yearly
basis.
(B) "EBITDA" means the net income (after provision
for all bonuses) of Custom Food, determined on a consolidated basis
excluding the effect of any Stipulated Items (as hereinafter defined) and
before payment or provision for payment of (1) interest expense; (2) any
Federal, state, local or other taxes based on income; (3) depreciation
expense and (4) amortization of goodwill and other tangible assets.
(C) "Stipulated Items" means income or expense
items of a character significantly different from those incurred in the
typical or customary business activities of Custom Food or that would not
be considered recurring factors in any evaluation of the ordinary
operations of the business of Custom Food, including, but not limited to,
(1) the sale or abandonment of a plant or significant segment of the
business of Custom Food; (2) the sale of an investment not acquired for
resale; (3) the writeoff of goodwill due to unusual events or developments
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within the fiscal year being considered; (4) the condemnation or
expropriation of properties; (5) certain adjustments to the reserve
accounts recorded by Custom Food; and (6) any management fees payable to
First Atlantic Capital, Ltd. and its affiliates.
(iii) The Company shall, promptly following the
Company's receipt from its certified public accountants of the audited
consolidated financial statements of the Company for each Bonus Year,
compute and promptly pay the Annual Cash Bonus based upon the EBITDA of
Custom Food as reflected in such audited consolidated financial
statements.
(d) In addition to the Base Salary, the Executive
shall be entitled to participate in the incentive stock option plan to be
formulated by the Board of Directors of the Parent.
SECTION 6. Business Expenses; Benefits. (a) The Company (or, at the
Company's option, any subsidiary or affiliate thereof) shall reimburse the
Executive, in accordance with the practice from time to time for officers of the
Company, for all reasonable and necessary expenses and other disbursements
incurred by the Executive for or on behalf of the Company in the performance of
his duties hereunder. The Executive shall provide such appropriate documentation
of expenses and disbursements as may from time to time be reasonably required by
the Company.
(b) During the Employment Period, the Executive shall be
entitled to four weeks paid vacation during each twelve-month period worked
beginning on the Commencement Date.
(c) During the Employment Period, the Company shall provide
the Executive with group health, hospitalization and other employee benefits in
amounts and with terms consistent with the policies of the Company with respect
to its officers.
(d) During the Employment Period, the Company will reimburse
the Executive for professional association fees in an aggregate amount not to
exceed $2,000 per year.
(e) During the Employment Period, the Company will reimburse
the Executive for costs incurred by the Executive for registration or tuition
fees for classes or seminars attended by the Executive in the metropolitan Los
Angeles area (or elsewhere if approved in advance by the Board of Directors of
the Company, such approval not to be unreasonably withheld) for so long as and
to the extent that such classes or seminars are required by the American
Institute of Certified Public Accountants (or its successor organization) in
order for the Executive to maintain his certified public accountant's
certificate. The aggregate amount payable under this Section 6(e) shall not
exceed $2,000 per year.
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(f) During the Employment Period, the Company will pay the
premiums for a long-term disability plan for the Executive and a life insurance
policy on the Executive having an aggregate benefit of $250,000. The aggregate
cost of the disability plan and life insurance shall not exceed $550 per month.
(g) During the Employment Period, the Company shall pay or
reimburse the Executive $700 per month for the expenses of an automobile
utilized by the Executive.
SECTION 7. Involuntary Termination. (a) If the Executive is
incapacitated or disabled by accident, sickness or otherwise so as to render him
mentally or physically incapable of performing the services required to be
performed by him under this Agreement (such condition being hereinafter referred
to as a "Disability") for a period of 180 consecutive days or longer, or for an
aggregate of 210 days during any twelve-month period, the Company may, at any
time following such 180 or 210 day period of Disability, at its option,
terminate the employment of the Executive under this Agreement immediately upon
giving him written notice to that effect (such termination, as well as a
termination under Section 7(b), being hereinafter referred to as an "Involuntary
Termination"). Until the Executive's employment hereunder shall have been
terminated in accordance with the foregoing, the Executive shall be entitled to
receive his compensation notwithstanding any such Disability.
(b) If the Executive dies during the Employment Period, his
employment hereunder shall be deemed to cease as of the date of his death.
SECTION 8. Termination For Cause. The Company may terminate the
employment of the Executive hereunder at any time for Cause (as hereinafter
defined) (such termination being referred to herein as a "Termination For
Cause") by giving the Executive written notice of such termination, effective
immediately upon the giving of such notice to the Executive. As used in this
Agreement (a) "Cause" means (i) the Executive's material breach of this
Agreement and, if such breach is capable of being cured, the failure to cure
such breach within 30 days of notice thereof from the Company to the Executive,
(ii) the Executive's past, present or future conduct which has a Material
Adverse Effect, (iii) the Executive's disregard of lawful instructions of the
Board that are consistent with the Executive's position, or neglect of duties or
failure to act, which, in either case, may reasonably be anticipated to have a
Material Adverse Effect, and the continuance of such condition for a period of
30 days after notice thereof from the Company to the Executive, (iv) alcohol or
drug abuse by the Executive or (v) the commission by the Executive of a felony
or an act involving fraud, theft or dishonesty and (b) "Material Adverse Effect"
means a material adverse effect on the business, operations,
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financial condition, results of operations, assets, liabilities or prospects of
the Company or any of its subsidiaries or affiliates.
SECTION 9. Termination Without Cause. The Company may terminate the
employment of the Executive hereunder without Cause (such termination being
hereinafter referred to as a "Termination Without Cause") by giving the
Executive written notice of such termination, which notice shall be effective on
the date specified therein but not earlier than the date on which such notice is
given. For purposes of this Agreement, "Termination Without Cause" shall also
include the following:
(a) any material reduction, in the absence of the Executive's
consent, of the Executive's title, duties or responsibilities;
(b) any material breach by the Company of its obligations
under this Agreement;
(c) the expiration of this Agreement at the Scheduled
Termination Date or the failure of the Executive or the Company to extend the
term hereof, after good faith negotiations for a reasonable period of time (not
to exceed 90 days following the Scheduled Termination Date) by the Executive and
the Company to enter into a new employment agreement; and
(d) the Company's relocation of the Executive, in the absence
of the Executive's consent, to a location other than the metropolitan Los
Angeles, California area, provided that the Executive acknowledges that as part
of his duties hereunder, it may be necessary for him to make periodic business
trips of short duration (including, for example, trips to attend meetings of
boards of directors of which he is a member), which trips shall not be
considered the relocation of the Executive for purposes of this Section 9(d);
provided, however, that a Termination Without Cause pursuant to clauses (a) and
(b) of this Section 9 shall not be deemed to have occurred unless, within 30
days of the occurrence (or, in the case of an event described in clause (b) of
this Section 9, the Executive's actual knowledge of such occurrence) of any of
the events described in said clauses (a) and (b), the Executive shall have given
the Company notice, with reasonable specificity, of his intention to claim a
Termination Without Cause pursuant to this Section 9 and the basis therefor, and
the Company shall have failed to cure the act or omission described in the
notice within 30 days of receipt of such notice from the Executive.
SECTION 10. Voluntary Termination. Any termination of the employment
of the Executive hereunder other than as a result of an Involuntary Termination,
a Termination For Cause or a Termination Without Cause shall be deemed to be a
"Voluntary
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Termination" (it being understood that the resignation by the Executive prior to
the Scheduled Termination Date shall be deemed a "Voluntary Termination").
SECTION 11. Effect of Termination. (a) Upon the termination of the
Executive's employment hereunder due to a Termination for Cause or a Voluntary
Termination, neither the Executive nor his beneficiary or estate shall have any
further rights or claims against the Company under this Agreement, except to
receive (i) the unpaid portion, if any, of the Base Salary provided for in
Section 5(a), computed on a pro rata basis to the Termination Date (based on the
actual number of days elapsed over a year of 365 or 366 days, as applicable),
(ii) any unpaid accrued benefits due the Executive and (iii) reimbursement for
any expenses for which the Executive shall not have been reimbursed as provided
in Section 6(a).
(b) Upon the termination of the Executive's employment
hereunder due to an Involuntary Termination, neither the Executive nor his
beneficiary or estate shall have any further rights or claims against the
Company under this Agreement except (i) to receive the amounts set forth in
Section 11(a) above, (ii) to continue to receive the Base Salary, payable in
such installments as it was paid to the Executive prior to such termination of
employment for a period of six (6) months, (iii) the pro rata portion of the
bonus to which the Executive would be entitled for the fiscal year of the
Company in which such termination occurred, computed by multiplying (A) the
bonus that would have been payable to the Executive for the entire year if his
employment had not been terminated by (B) a fraction, the numerator of which is
the number of days elapsed from the beginning of such year to and including the
effective date of such termination and the denominator of which is 365, such
portion of the bonus to be payable at such time and in such manner as is
consistent with the Company's historical practice regarding the payment of
bonuses to the Executive or to its officers generally and (iv) to participate in
all group health and hospitalization plans as contemplated by Sections 6(c) and
6(f) hereof until the earlier to occur of the Scheduled Termination Date and the
date which is six (6) months after the Termination Date.
(c) Upon the termination of the Executive's employment
hereunder due to a Termination Without Cause, neither the Executive nor his
beneficiary or estate shall have any further rights or claims against the
Company under this Agreement except (i) to receive the amounts set forth in
Section 11(a) above, (ii) to continue to receive the Base Salary, payable in
such installments as it was paid to the Executive prior to such termination of
employment, for a period of 12 months after the termination of the Executive's
employment with the Company(including a termination of such employment on or
after the Scheduled Termination Date in circumstances contemplated by
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Section 9(c) hereof), (iii) to receive the pro rata portion of the bonus to
which the Executive would be entitled for the fiscal year of the Company in
which such termination occurred, computed by multiplying (A) the bonus that
would have been payable to the Executive for the entire year if his employment
had not been terminated by (B) a fraction, the numerator of which is the number
of days elapsed from the beginning of such year to and including the effective
date of such termination and the denominator of which is 365, such portion of
the bonus to be payable at such time and in such manner as is consistent with
the Company's historical practice regarding the payment of bonuses to the
Executive or to its officers generally and (iv) to participate in all group
health and hospitalization plans as contemplated by Sections 6(c) and 6(f)
hereof for a period of 12 months after the termination of the Executive's
employment with the Company (including a termination of such employment on or
after the Scheduled Termination Date in circumstances contemplated by Section
9(c) hereof).
SECTION 12. Insurance. The Company may, for its own benefit,
maintain "key-man" life and disability insurance policies (collectively, the
"Insurance Policies") covering the Executive. The Executive will cooperate with
the Company and provide such information or other assistance as the Company may
reasonably request in connection with the Company's obtaining and maintaining
the Insurance Policies.
SECTION 13. Disclosure of Information. The Executive agrees that he
will not, at any time during the Employment Period or thereafter, disclose to
any person, firm, corporation or other business entity, except as required by
law, any non-public information concerning the business, clients or affairs of
the Company or any subsidiary or affiliate thereof for any reason or purpose
whatsoever nor shall the Executive make use of any of such non-public
information for his own purpose or for the benefit of any person, firm,
corporation or other business entity except the Company or any subsidiary or
affiliate thereof. For purposes of this Section 13, "non-public" information
shall not include any information that:
(i) is now, or hereafter becomes, through no act or failure to
act on the part of the Executive that constitutes a breach of this Section 13,
generally known or available to the public;
(ii) is known to the Executive at the time of the
disclosure of such information;
(iii) is hereafter furnished to the Executive by a third
party, who, to the knowledge of such party, is not under any obligation of
confidentiality to the Company or any of its affiliates, without restriction on
disclosure;
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(iv) is disclosed with the written approval of the party to
which such information or materials pertain;
(v) is required to be disclosed by law, court order, or
similar compulsion; provided, however, that such disclosure shall be limited to
the extent so required or compelled; and provided further, however, that if the
Executive is required to disclose such confidential information, he shall give
the Company notice of such disclosure and cooperate in seeking suitable
protections; or
(vi) is required to be provided pursuant to or in connection
with any legal proceeding involving the parties hereto.
SECTION 14. Right to Inventions. (a) The Executive shall promptly
disclose, grant and assign to the Company for its sole use and benefit any and
all marks, designs, logos, inventions, improvements, technical information and
suggestions relating in any way to the business actually conducted by the
Company, which he may develop or which may be acquired by the Executive during
the Employment Period (whether or not during normal working hours), together
with all trademarks, patent applications, letters patent, copyrights and
reissues thereof that may at any time be granted for or upon any such ▇▇▇▇,
design, logo, invention, improvement or technical information.
In connection therewith:
(i) the Executive shall without charge, but at the
expense of the Company, promptly at all times hereafter execute and
deliver such applications, assignments, descriptions and other instruments
as may be necessary or proper in the opinion of the Company to vest title
to any such marks, designs, logos, inventions, improvements, technical
information, trademarks, patent applications, patents, copyrights or
reissues thereof in the Company and to enable it to obtain and maintain
the entire right and title thereto throughout the world;
(ii) the Executive shall render to the Company at its
expense (including a reasonable payment for the time involved in case he
is not then in its employ based on his last per diem earnings) all such
assistance as it may require in the prosecution of applications for said
trademarks, patents, copyrights or reissues thereof, in the prosecution or
defense of interferences which may be declared involving any said
trademarks, applications, patents or copyrights and in any litigation in
which the Company may be involved relating to any such trademarks,
patents, inventions, improvements or technical information; and
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(iii) for the avoidance of doubt, it is hereby agreed that
the foregoing provisions shall be deemed to include an assignment of
future copyright in accordance with Section 37 of the Copyright Act of
1986 and any amendment or re-enactment thereof.
(b) Any provision of this Agreement requiring the Executive to
assign his rights in any invention shall not apply to an invention which
qualifies fully under the provisions of Section 2870 of the California Labor
Code. That Section provides that the requirement to assign "shall not apply to
any invention for which no equipment, supplies, facility or trade secret
information of the employer was used and which was developed entirely on the
employee's own time, and (a) which does not relate (i) to the business of the
employer or (ii) to the employer's actual or demonstrably anticipated research
or development, or (b) which does not result from any work performed by the
employee for the employer." The Executive understands that he bears the full
burden of proving to the Company that an invention qualifies fully under Section
2870. By signing this Agreement, the Executive acknowledges receipt of a copy of
this Agreement and of written notification of the provisions of Section 2870.
SECTION 15. Enforcement; Severability; Etc. It is the desire and
intent of the parties that the provisions of this Agreement shall be enforced to
the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated to be invalid or unenforceable,
such provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made.
SECTION 16. Remedies. The Company and the Executive acknowledge and
understand that the provisions of this Agreement are of a special and unique
nature, the loss of which cannot be adequately compensated for in damages by an
action at law, and that the breach or threatened breach of the provisions of
this Agreement would cause the Company or the Executive irreparable harm. In the
event of a breach or threatened breach by the Company or the Executive of the
provisions of this Agreement, the Company or the Executive shall be entitled to
an injunction restraining such party from such breach. Nothing contained in this
Agreement shall be construed as prohibiting the Company or the Executive from or
limiting the Company or the Executive in pursuing any other remedies available
for any breach or threatened breach of this Agreement.
SECTION 17. Notices. All notices, claims, certificates, requests,
demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given and
delivered if personally delivered or if sent by nationally-recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Company, to it at:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
First Atlantic Capital, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇; and
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
if to the Executive, to him at:
▇▇. ▇▇▇▇ ▇. Ek
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇ & Sharp
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is to be given may have
furnished to the other party or parties in writing in accordance herewith. Any
such notice or communication shall be deemed to have been received (a) in the
case of personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day
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after the date when sent, (c) in the case of telecopy transmission, when
received, and in the case of mailing, on the third business day following that
on which the piece of mail containing such communication is posted.
SECTION 18. Binding Agreement; Benefit. Subject to Section 23
hereof, the provisions of this Agreement will be binding upon, and will inure to
the benefit of, the respective heirs, legal representatives, successors and
assigns of the parties.
SECTION 19. Governing Law. This Agreement will be governed by, and
construed and enforced in accordance with, the laws of the State of California
(without giving effect to principles of conflicts of laws).
SECTION 20. Waiver of Breach. The waiver by either party of a breach
of any provision of this Agreement must be in writing and shall not operate or
be construed as a waiver of any other breach.
SECTION 21. Entire Agreement; Amendments. This Agreement contains
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements or understandings between the parties
with respect thereto, including, without limitation, the Original Employment
Agreement. This Agreement may be amended only by an agreement in writing signed
by the parties.
SECTION 22. Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 23. Assignment. This Agreement is personal in its nature and
the parties shall not, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder; provided, however, that the
Company may assign this Agreement to any of its subsidiaries and affiliates and
the provisions of this Agreement shall inure to the benefit of, and be binding
upon, each successor of the Company, whether by merger, consolidation, transfer
of all or substantially all of its assets, or otherwise (no such assignment
shall relieve the Company from its obligations hereunder).
SECTION 24. Counterparts. This Agreement may be executed in
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 25. Gender. Any reference to the masculine gender shall be
deemed to include the feminine and neuter genders unless the context otherwise
requires.
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SECTION 26. Unlimited Guaranty. As a condition to the execution of
this Agreement and the performance by the Executive of its obligations
hereunder, Custom Food is delivering a guaranty to the Executive in the form of
Exhibit A simultaneously with the execution and delivery hereof.
SECTION 27. Attorney Fees. In connection with any action, suit or
proceeding arising under or in connection with this Agreement, the prevailing
party in such action, suit or proceeding shall be entitled to the reasonable
attorneys' fees incurred in connection with such action, suit or proceeding.
* * * *
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IN WITNESS WHEREOF, the parties have duly executed this Employment
Agreement as of the date first written above.
CFP HOLDINGS, INC.
By:________________________________
Name:
Title:
___________________________________
▇▇▇▇ ▇. EK
EXHIBIT A
Unlimited Guaranty
In consideration of the management advice to be obtained by Custom
Food Products, Inc., a California corporation ("CFP"), pursuant to the
Employment Agreement dated as of December 31, 1996, (the "Employment
Agreement"), between ▇▇▇▇ ▇. Ek and CFP Holdings, Inc., a Delaware corporation
("Holdings"), CFP hereby unconditionally guarantees the payment and performance
in full of all of the obligations of Holdings arising in connection with the
Employment Agreement.
IN WITNESS WHEREOF, CFP has caused this Unlimited Guaranty to be
duly executed as of this 31st day of December 1996.
CUSTOM FOOD PRODUCTS, INC.
By:________________________________
Name:
Title: