AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of this 31st day of December,
1994, and amended as of the 31st day of December 1995 and amended as of the 31st
day of October 1997 by and between ▇▇▇▇▇▇▇ FOODS, INC., a Minnesota corporation
(hereinafter referred to as "▇▇▇▇▇▇▇ Foods") and ▇▇▇▇ ▇. ▇▇▇▇▇ (hereinafter
referred to as "▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇ has served as Vice President - Finance and Chief
Financial Officer of ▇▇▇▇▇▇▇ Foods since May 1988; and
WHEREAS, ▇▇▇▇▇▇▇ Foods and ▇▇▇▇▇ have agreed to enter into this
Agreement effective as of January 1, 1995.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties agree that this Agreement is effective as of January 1,
1995 as follows:
1. EMPLOYMENT AND DUTIES. ▇▇▇▇▇▇▇ Foods shall employ ▇▇▇▇▇ to serve as
Vice President - Finance and Chief Financial Officer of ▇▇▇▇▇▇▇ Foods and in
such capacity ▇▇▇▇▇ shall perform such duties as the Bylaws provide and as the
CEO of ▇▇▇▇▇▇▇ Foods may from time to time determine. ▇▇▇▇▇ shall also serve, at
the request of ▇▇▇▇▇▇▇ Foods, as a Director of any of ▇▇▇▇▇▇▇ Foods'
subsidiaries.
2. TERM. This Agreement shall be effective as of January 1, 1995 and
shall continue through December 31, 1999 and shall automatically renew and
extend for additional two year terms unless otherwise terminated in accordance
with the provisions of this agreement.
3. BASE SALARY. For all services rendered by ▇▇▇▇▇, ▇▇▇▇▇▇▇ Foods
agrees to pay to ▇▇▇▇▇ an annual Base Salary for each of the calendar years of
this Agreement effective from January 1, 1998 through December 31, 1999 of at
least $205,000 payable in substantially equal semi-monthly installments.
4. ADDITIONAL BENEFITS AND WORKING FACILITIES.
a. For each calendar year during the term of this Agreement,
▇▇▇▇▇ shall be entitled to participate in the Executive Incentive
Compensation Plan of ▇▇▇▇▇▇▇ Foods. Any Incentive Compensation or
Options earned under said Plan shall be determined and paid or granted
in accordance with the Plan.
b. ▇▇▇▇▇▇▇ Foods shall provide ▇▇▇▇▇ with medical insurance
and shall permit ▇▇▇▇▇ to participate in other fringe benefit plans as
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Foods.
▇. ▇▇▇▇▇ is entitled to take vacations at reasonable times and
for customary and reasonable lengths of time consistent with his
overall responsibilities as Vice President - Finance and Chief
Financial Officer of ▇▇▇▇▇▇▇ Foods.
d. Michael Foods shall reimburse ▇▇▇▇▇ for all reasonable
expenses incurred by ▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇ Foods' business,
including but not limited to, expenses of travel and entertainment,
upon presentation of itemized statements therefor.
5. EVENTS OF TERMINATION. The employment of ▇▇▇▇▇ hereunder shall
terminate as follows:
a. Upon the Incapacity or death of ▇▇▇▇▇;
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 ▇▇▇▇▇▇▇ Foods for Cause; or
d. By ▇▇▇▇▇▇▇ Foods without Cause if there is a Change in
Control of ▇▇▇▇▇▇▇ Foods and thereafter ▇▇▇▇▇'▇ Duties are
Substantially Reduced or Negatively Altered without his prior written
consent.
"CAUSE" for purposes hereof shall mean a determination by ▇▇▇▇▇▇▇ Foods
that ▇▇▇▇▇ has (i) committed an illegal or dishonest act that directly reflects
upon his fitness to act as Vice President - Finance and Chief Financial Officer;
(ii) intentionally breached his fiduciary obligations to ▇▇▇▇▇▇▇ 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 a determination by ▇▇▇▇▇▇▇
Foods in its sole discretion that ▇▇▇▇▇ is unable to perform his job
responsibilities as Vice President - Finance and Chief Financial Officer as a
result of chronic illness, physical, mental or any other disability for a period
of six (6) months or more.
If ▇▇▇▇▇'▇ employment is terminated under subsection (a) or by ▇▇▇▇▇▇▇
Foods under subsection (b), ▇▇▇▇▇ shall receive as a termination payment all
amounts due under this Agreement as Base Salary, but in any event in an amount
not less than one year's Base Salary, plus ▇▇▇▇▇ shall receive fifty percent
(50%) of that Base Salary amount in lieu of any Incentive Compensation and
Options for the remaining term of this Agreement, 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 through the full term of this Agreement or
for twelve (12) months, whichever is later. If ▇▇▇▇▇'▇ employment is terminated
by ▇▇▇▇▇ under subsection (b), ▇▇▇▇▇ shall receive no termination payment;
however, ▇▇▇▇▇ 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 ▇▇▇▇▇ is entitled to receive, but in no event
shall the date of payment be more than 90 days following termination of
employment. If ▇▇▇▇▇▇▇ Foods terminates ▇▇▇▇▇ under subsection (c) above, no
amount shall be paid beyond the last day of service by ▇▇▇▇▇ and ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Foods
without Cause in accordance with sub-paragraphs a., b. and d. above, all options
to purchase common stock previously granted to ▇▇▇▇▇ shall become fully vested
and not subject to ▇▇▇▇▇'▇ forfeiture.
If ▇▇▇▇▇'▇ employment is terminated by ▇▇▇▇▇▇▇ Foods under subsection
(d), ▇▇▇▇▇ shall receive as a termination payment all amounts due under this
Agreement as Base Salary plus ▇▇▇▇▇ shall receive fifty percent (50%) of that
Base Salary amount in lieu of any Incentive Compensation and Options for the
remaining term of this Agreement, but in any event in an amount not less than
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.
Not withstanding the ambiguity of any provisions herein contained, this
employment agreement shall provide for a maximum termination payment of not more
than 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.
"CHANGE IN CONTROL" means a Change in Control of ▇▇▇▇▇▇▇ Foods of a
nature that would be required to be reported in response to Item 1(a) of ▇▇▇▇▇▇▇
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 ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇▇ ▇▇▇"); 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 ▇▇▇▇▇▇▇ Foods, a subsidiary of
▇▇▇▇▇▇▇ Foods or any employee benefit plan sponsored by ▇▇▇▇▇▇▇ Foods or a
subsidiary of ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Foods through the acquisition of beneficial ownership of
capital stock of ▇▇▇▇▇▇▇ Foods or otherwise, or (2) all, or substantially all,
of the properties and assets of ▇▇▇▇▇▇▇ 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 ALTERED" means, after
any Change in Control and without ▇▇▇▇▇'▇ express written consent:
(i) the assignment to ▇▇▇▇▇ of any duties inconsistent with ▇▇▇▇▇'▇
positions, duties, responsibilities and status with ▇▇▇▇▇▇▇ Foods immediately
prior to a Change in
Control, or a change in ▇▇▇▇▇'▇ reporting responsibilities, titles or offices as
in effect immediately prior to a Change in Control, or any removal of ▇▇▇▇▇
from, or any failure to re-elect ▇▇▇▇▇ to, any of such positions, except in
connection with the termination of ▇▇▇▇▇'▇ employment for Cause, upon the
Incapacity or death of ▇▇▇▇▇, or upon the voluntary termination by ▇▇▇▇▇;
(ii) a reduction in ▇▇▇▇▇'▇ base salary in effect immediately prior to
any Change in Control; or the failure by ▇▇▇▇▇▇▇ 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;
(iii) ▇▇▇▇▇▇▇ Foods requiring ▇▇▇▇▇ to be based anywhere other than the
geographic location at which ▇▇▇▇▇ was based immediately preceding the Change in
Control except for required travel on business to an extent substantially
consistent with the business travel obligations ▇▇▇▇▇ experienced immediately
preceding a Change in Control;
(iv) the failure by ▇▇▇▇▇▇▇ Foods to continue in effect benefit and
compensation plans substantially equivalent to the benefit or compensation plans
or arrangements in which ▇▇▇▇▇ was participating immediately preceding any
Change in Control; the taking of any action by ▇▇▇▇▇▇▇ Foods not required by law
which would adversely affect ▇▇▇▇▇'▇ participation in or materially reduce
▇▇▇▇▇'▇ benefits under any of such plans or deprive ▇▇▇▇▇ of any material fringe
benefit enjoyed by ▇▇▇▇▇ at the time of the Change in Control, but this
provision shall not apply to any stock option plan maintained by ▇▇▇▇▇▇▇ Foods
prior to the Change in Control; or the failure by ▇▇▇▇▇▇▇ Foods to provide ▇▇▇▇▇
with the number of paid vacation days, holidays and personal days to which ▇▇▇▇▇
was then entitled in accordance with ▇▇▇▇▇▇▇ 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. WAIVER. 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 ▇▇▇▇▇ by first class, certified mail, postage prepaid,
return receipt requested, addressed as follows:
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
b. To ▇▇▇▇▇▇▇ Foods by first class, certified mail, postage
prepaid, return receipt requested, addressed as follows:
▇▇▇▇▇▇▇ Foods, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
▇▇▇▇▇▇▇ FOODS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇