EXHIBIT 10.65
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, the 31st day of
October 1997, and the 1st day of January 1999 by and between ▇▇▇▇▇▇▇ FOODS,
INC., a Minnesota corporation (hereinafter referred to as "▇▇▇▇▇▇▇ Foods") and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (hereinafter referred to as "▇▇▇▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇▇▇▇ has served as President of Crystal Farms
Refrigerated Distribution Company since May 1989; 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 President of Crystal Farms Refrigerated Distribution
Company and in such capacity ▇▇▇▇▇▇▇▇▇ shall perform such duties as
the Bylaws provide and as the CEO of ▇▇▇▇▇▇▇ Foods may from time to
time determine.
2. TERM. This Agreement shall be effective as of January 1, 1995 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 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Foods agrees to pay to ▇▇▇▇▇▇▇▇▇ an annual Base Salary for each of
the calendar years of this Agreement from January 1, 1999 through
December 31, 1999 of at least $203,000 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
President of Crystal Farms Refrigerated Distribution
Company.
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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 President of Crystal Farms
Refrigerated Distribution Company; (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 President of Crystal Farms
Refrigerated Distribution Company 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 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 ▇▇▇▇▇▇▇▇▇'▇ 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
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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 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 ▇▇▇▇▇▇▇
Foods of a nature that would be required to be reported
in response to Item l(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
▇▇▇▇▇▇▇▇▇;
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(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:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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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/ ▇▇▇▇ ▇▇▇▇▇
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Its Vice President - Finance
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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