EXHIBIT 10.11
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BY AND BETWEEN
PINNACLE FOODS HOLDING CORPORATION
AND
C. DEAN METROPOULOS
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of this 25th day of November, 2003 (the "Effective Date") by and
between Pinnacle Foods Holding Corporation, a Delaware corporation (the
"Company"), with offices at one Old Bloomfield Road, Mountain Lakes, New Jersey
07046 and C. Dean Metropoulos (the "Executive"). Pinnacle Foods Corporation, a
Delaware corporation, and a wholly-owned subsidiary of the Company (the
"Operating Company"), is a party to this Agreement as provided herein.
RECITALS
WHEREAS, the Company, the Operating Company and Executive are parties to
an employment agreement, dated October 9, 2002 (the "Prior Agreement"); and
WHEREAS, on the Effective Date, the Company engaged in a series of
transactions (collectively, the "Transaction") pursuant to an Agreement and Plan
of Merger by and among the Company, Crunch Holding Corp., Crunch Acquisition
Corp. and HMTF PF. L.L.C., in its capacity as representative, dated as of August
8, 2003 (the "Merger Agreement"); and
WHEREAS, in connection with the consummation of the Transaction, the
parties hereby wish to amend and restate the Prior Agreement in the form of this
Agreement.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, including the mutual
covenants herein, the parties agree that the Prior Agreement is amended and
restated in its entirety in the form of this Agreement, as follows:
1. Employment Period. Subject to Section 3, the Company agrees to
continue to employ Executive, and Executive hereby accepts employment with the
Company, in accordance with the terms and conditions of this Agreement, during
the period commencing on the Effective Date and ending on the second anniversary
of the Effective Date and from year to year thereafter unless terminated as
provided herein; provided, that in no event shall the employment relationship
contemplated by this Agreement extend beyond the fourth anniversary of the
Effective Date unless agreed to in writing by the parties and further no
termination or expiration of the employment relationship contemplated by this
Agreement shall reduce any rights and/or obligations arising under this
Agreement (i) as a result of such termination or (ii) during the term of this
Agreement and which have accrued prior to any such termination or expiration.
2. Terms of Employment.
(a) Positions and Duties. During the term of Executive's
employment with the Company, Executive shall serve as Chief
Executive Officer of the Company and of the Operating Company
(or such other position or positions as Executive and the
Board of Directors of the Company (the "Board") shall mutually
agree) and, in so doing shall report to the Board. Executive
shall have supervision and control over, and responsibility
for, the day to day management and operational functions of
the Company and the Operating Company, and such authority
shall include, without limitation, the exclusive right to
allocate stock options representing up to five percent (5%) of
the equity of the Company or its parent, pursuant to a stock
option or other equity incentive plan to be adopted by the
Company or its parent; provided that no such stock options
shall be granted to Executive, N. Michael Dion, Evan
Metropoulos, Louis Pellicano or any other employee of CDM
Investor Group LLC who holds an equity interest in CDM
Investor Group LLC. During the term of Executive's employment
with the Company (excluding any periods of vacation and sick
leave), Executive shall devote sufficient time to the business
and affairs of the Company necessary to discharge the
responsibilities assigned to Executive hereunder. The Company
recognizes and acknowledges that Executive is involved in
other activities and it shall not be a violation of this
Agreement or of any common duty of loyalty for the Executive
to (i) serve on business, civic or charitable boards and/or
committees, (ii) deliver lectures or fulfill speaking
engagements, or (iii) manage or provide advice to other
businesses or entities with respect to which Executive has
made a personal monetary investment or has otherwise created
an advisory relationship, so long as such activities,
individually or in the aggregate, do not unreasonably
interfere with the performance of Executive's responsibilities
in accordance with this Agreement.
(b) Compensation, Benefits and Expenses. During the term of
Executive's employment with the Company, Executive shall
receive an annual base salary of not less than One Million Two
Hundred Fifty Thousand Dollars ($1,250,000) ("Annual Base
Salary"), which shall be paid in accordance with the customary
payroll practices of the Company. In addition, Executive shall
be entitled to receive an annual bonus ("Annual Bonus") of up
to One Million Two Hundred Fifty Thousand ($1,250,000) upon
achievement of performance criteria as shall be established by
the Board. Notwithstanding the above, it is expected that
Executive's Annual Base Salary and Annual Bonus target will be
increased by the Board upon the consummation of the
transactions contemplated by the Agreement and Plan of
Reorganization and Merger among
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Aurora Foods Inc. and Crunch Equity Holding, LLC, dated as of
November 24, 2003 (collectively, the "Aurora Transaction"), in
light of Executive's additional duties and responsibilities as
a result of the Aurora Transaction. The Board will consider
such increases at or immediately following the consummation of
the Aurora Transaction.
(i) During the term of Executive's employment with the
Company, Executive shall be entitled to participate in
all incentive, savings and retirement plans, practices,
policies and programs applicable generally to other
executives of the Company and the Operating Company
("Investment Plans").
(ii) During the term of Executive's employment with the
Company, Executive and his family shall be eligible for
participation in and shall receive all benefits under,
welfare benefit plans, practices, policies and programs
applicable generally to other executives of the Company
and the Operating Company, including but not limited to
comprehensive medical and dental coverage, disability
and basic and supplemental life insurance ("Welfare
Plans").
(iii) Except to the extent that such are changed pursuant to a
general change in benefits applicable generally to other
executives of the Company and the Operating Company,
during the term of Executive's employment with the
Company, the Company shall continue to provide Executive
with at least the same benefits provided to Executive by
the Company and the Operating Company prior to the
Effective Date including, without limitation, the
provision of a company car of Executive's choice
comparable to that previously provided, club membership,
tax/accounting services, office rent and secretarial
support ("Other Benefits").
(iv) During the term of Executive's employment with the
Company, Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses associated
with performing the duties hereunder in accordance with
the policies, practices and procedures of the Company
("Reimbursable Expenses").
(v) During the term of Executive's employment with the
Company, Executive shall be entitled to paid vacation
and paid holidays in accordance with the plans,
policies,
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programs and practices of the Company for its executive
officers.
3. Termination of Employment.
(a) Reasons for Termination. Executive's employment with the
Company may be terminated (i) by the Company for Cause or
without Cause, (ii) by Executive with or without Good Reason,
or (iii) by either the Company or the Executive upon
Executive's Disability (other than by reason of death). This
Agreement shall automatically expire (i) at the end of the
month following Executive's death and (ii) unless otherwise
agreed to in writing by the parties, as of the fourth
anniversary of the Effective Date.
(b) Definitions. The following terms, as used herein, shall have
the following meanings:
(i) "Annual Base Compensation" shall mean, at any given
time, the aggregate amount of (A) the Annual Base Salary
and (B) the then budgeted Annual Bonus for Executive;
provided that in no event shall Annual Base Compensation
be less than $2,500,000. Calculations required herein
based upon the amount of the Annual Bonus portion of the
Annual Base Compensation earned shall be determined as
if the Annual Bonus portion of the Annual Base
Compensation is earned evenly throughout the year based
upon a 365-day year; provided that for purposes of
Section 3(c)(i)(A), the Annual Bonus portion of the
Annual Base Compensation earned through the date of
termination shall (1) be calculated by the Company as of
the date of the termination under Section 3(c)(i),
taking into consideration (x) for that portion of the
then current fiscal year that has elapsed prior to such
termination, the Company's performance against the
fiscal EBITDA budget for such time period and (y) a
reasonable estimation by the Board of the Company's
EBITDA performance for the remainder of the fiscal year
(such calculation referred to as the "Estimated Annual
Bonus") or (2) if Executive gives a timely notice of
objection as provided below, be calculated by the
Company based on the EBITDA results the Company actually
achieves during the then current fiscal year, based on
the performance criteria previously established by the
Board (such calculation referred to as "Actual Results
Bonus"), with such calculation being made based upon the
audited financial statement for such fiscal year (the
"Audited Financial Statements") and, in the case of both
clause (1) and (2) above, such Annual Bonus as
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calculated above shall be reduced on a pro rata basis to
reflect the actual days of employment elapsed during
such fiscal year prior to the date of termination as
compared to the total number of days during such fiscal
year. Within thirty (30) days of the date of termination
under Section 3(c)(i), the Board shall give Executive
notice of its calculation of the Estimated Annual Bonus
together with a description of the basis and assumptions
supporting such projection. In the event Executive gives
the Company notice of his objection to such projection
within thirty (30) days of the receipt of the notice
thereof, then Executive shall be deemed to have waived
and released his rights to receive any amounts under
clause (1) above and thereafter Executive shall be
eligible for the Actual Results Bonus under clause (2)
above. Should Executive either expressly accept in
writing the Estimated Annual Bonus calculation or fail
to give timely notice of objection as provided above,
then Executive shall be deemed to have accepted such
calculation and to have waived and released his rights
to receive any amounts under clause (2) above. In the
case of the application of the Estimated Annual Bonus
above, the date that Executive accepts or is deemed to
have accepted the Board's calculation thereunder and in
the case of the application of the Actual Results Bonus
above, the date of the issuance of the Audited Financial
Statement, in each case is referred to herein as the
"Determination Date."
(ii) "Cause" shall mean an act of intentional fraud upon the
Company that has caused a harm or injury to the Company
or the Operating Company, as applicable; provided,
however, that (x) the Board shall provide Executive with
notice of the particular acts or omissions that are
alleged to give rise to such fraud and (y) the Board
shall hold a hearing no sooner than ten days after such
notice at which Executive shall have the right to
address the Board and dispute such allegations.
Executive shall have the right to contest a
determination of Cause by the Board by requesting
arbitration in accordance with the terms of Section 6
below.
(iii) "Change in Control" shall mean, following the Effective
Date, (A) any "person" (as such term is used in Section
13(d) of the Exchange Act, other than (x) Crunch Equity
Holdings, LLC ("Crunch") or any of its "Affiliates" (as
defined below) or (y) a parent entity as contemplated by
clause (C) below, becoming the direct or indirect
"beneficial owner" (as determined pursuant to Rule 13d-3
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under the Exchange Act) of securities of the Company,
the Operating Company, Crunch or Crunch Holding Corp.
(the "Holding Company") representing more than 30% of
the combined voting power of any such entity's (or, if
Crunch, the Holding Company, the Company or the
Operating Company, as applicable, is a direct or
indirect wholly-owned subsidiary of another entity
(other than any of the aforementioned entities), of any
such parent entity's), then outstanding securities and
Crunch or its Affiliates do not in the aggregate
beneficially own, directly or indirectly, securities
representing more than 50% of the combined voting power
of the voting securities of the entity whose voting
power is being tested above, (B) Crunch, the Holding
Company, the Company or the Operating Company merging
with or consolidating into any other entity, or the
equity holders of Crunch, the Holding Company, the
Company or the Operating Company, as applicable, and the
holders of voting securities of any other entity
participating in a securities exchange (other than a
merger, consolidation or exchange which (1) would result
in the holders (and/or their Affiliates) of the voting
securities of Crunch, the Holding Company, the Company
or the Operating Company, as applicable, outstanding
immediately prior thereto holding immediately thereafter
securities representing more than 50% of the combined
voting power of the voting securities of the surviving
entity (or, if Crunch, the Holding Company, the Company
or the Operating Company, as applicable, is a direct or
indirect wholly-owned subsidiary of another entity
(other than any of the aforementioned entities), of such
parent entity) outstanding immediately after such
merger, consolidation or exchange and (2) would result
in Executive being chief executive officer of such
surviving entity), or (C) the equity holders of Crunch,
the Holding Company, the Company or the Operating
Company approving a plan of complete liquidation or any
agreement or agreements for the sale or disposition by
Crunch, the Holding Company, the Company or the
Operating Company, as applicable, in one or a series of
related transactions, of all or substantially all of
Crunch's, the Holding Company's, the Company's or the
Operating Company's assets, as applicable, other than
any such plan of liquidation adopted in connection with
a merger, consolidation or exchange which does not
constitute a Change in Control under the preceding
clause (B). For purposes of this Section 3(b)(iii), the
term "Affiliate" means any person or entity that,
directly or
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indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common
control with, another person or entity, where the term
"control" means (including, with correlative meaning,
the terms "controlling," "controlled by" and "under
common control with") the possession, directly or
indirectly, of the power to direct or cause the
direction of the management, policies or investment
decisions of such person or entity, whether through the
ownership of voting securities, by contract or
otherwise.
(iv) "Disability" means (A) Executive's incapacity due to
death or a permanent mental or physical illness that
prevents Executive from performing his duties hereunder
or (B) a physical condition that renders the performance
by Executive of his duties hereunder a serious threat to
the health and well being of Executive. Disability shall
be determined by a physician selected by Executive (or
his legal representative) and reasonably acceptable to
the Company.
(v) "Good Reason" means (A) the assignment to Executive of
any position, authority, duties or responsibilities
inconsistent with Section 2(a) (including status,
offices, titles and reporting requirements), or any
other action by the Company which results in a
diminution in such position, authority, duties or
responsibilities of Executive with the Company,
excluding for this purpose an action not taken in bad
faith and which is remedied by the Company promptly
after receipt of written notice thereof specifying the
particular action in issue, (B) a material breach by the
Company of this Agreement or any stock option agreement
between the Company and Executive, which is not cured
within 30 days after the receipt of written notice
specifying the particular acts or omissions giving rise
to such breach, (C) a reduction, without the prior
written consent of Executive, in the amount of annual
base salary and/or annual bonus paid to Executive by the
Company in any given year as compared to the immediately
preceding year (other than as a result of the Company's
failure to achieve bonus criteria established by the
Board), (D) any removal by the Board of Executive as the
Chief Executive Officer of the Company or the Operating
Company other than for Cause, (E) any failure to elect
or reelect Executive as a director of the Company or the
Operating Company, other than for Cause, (F) the
relocation, without the prior written consent of
Executive, of Executive's principal place of
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employment more than 30 miles from his current principal
place employment if such relocation would increase
Executive's commute, or (G) following a Change in
Control (i) the failure of Executive to hold the
position and have the authority, duties and
responsibilities of Chief Executive Officer of the
surviving or ultimate parent entity, as applicable, (ii)
the failure of Executive to report solely to the Board
of Directors or analogous governing body of the
surviving or ultimate parent entity, as applicable; or
(iii) the failure of Executive to be elected and
reelected as a director of the surviving or ultimate
parent entity, as applicable, other than for Cause.
(c) Obligations of the Company upon Termination.
(i) With Cause; Without Good Reason. If, during the term of
this Agreement, the Company shall terminate Executive's
employment with the Company for Cause, or Executive
shall terminate his employment with the Company without
Good Reason, then:
(A) the Company shall pay to Executive in cash (x)
within 10 days after the date of such termination
the sum of (1) any Annual Base Salary earned
through the date of termination to the extent not
theretofore paid by the Company, (2) any
compensation previously deferred by Executive and
(3) any vacation pay earned through the date of
termination not theretofore paid by the Company,
(y) within 10 days of the Determination Date, that
portion of the Annual Bonus, if any, earned
through the date of termination as determined in
accordance with Section 3(b)(i) (the aggregate of
the sum of clauses (x) and (y) being, the "Accrued
Obligation") and (z) within 10 days after the date
of such termination, all Reimbursable Expenses
previously incurred but not reimbursed in
accordance with this Agreement ("Accrued
Expenses"); and
(B) the Company shall pay to Executive any amounts
arising from Executive's participation in, or
benefits under, any Investment Plans (the "Accrued
Investments"), which amounts shall be payable in
accordance with the term and conditions of the
Investment Plans; provided that this Section
3(c)(i)(B) is not intended to require, and shall
not be construed to require, any payments to be
made in
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respect of any stock option plan, stock
appreciation right or plan, or stock purchase
right or plan adopted by the Company, the Holding
Company or the Operating Company (collectively,
"Equity Plans"), and the terms and conditions of
such Equity Plans shall govern the parties'
obligations and rights thereunder.
(ii) Without Cause; With Good Reason; Disability. If, during
the term of this Agreement, the Company shall terminate
Executive's employment with the Company without Cause,
Executive shall terminate his employment with the
Company with Good Reason, or Executive's employment with
the Company shall terminate or expire due to Executive's
Disability, then:
(A) the Company shall pay to Executive in cash within
10 days after the date of such termination the
amount of the Accrued Obligation (including the
Annual Bonus portion of the Annual Base
Compensation that has been earned through the date
of termination as determined in accordance with
Section 3(b)(i)) and any Accrued Expenses;
(B) the Company shall pay to Executive the Accrued
Investments in accordance with the terms and
conditions of the Investment Plans; provided that
this Section 3(c)(ii)(B) is not intended to
require, and shall not be construed to require,
any payments to be made in respect of any Equity
Plans and the terms and conditions of such Equity
Plans shall govern the parties obligations and
rights thereunder;
(C) The Company shall pay to Executive in cash within
10 days after the date of such termination an
amount (the "Severance Amount") that is equal to
two (2) times the amount of the then current
Annual Base Compensation (including the Annual
Bonus portion of the Annual Base Compensation
targeted for such fiscal year whether or not
earned as of the date of termination in accordance
with Section 3(b)(i)); and
(D) for a period commencing on the date of such
termination and continuing for twenty-four (24)
months thereafter (the "Severance Period"), the
Company shall continue to provide benefits under
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Welfare Plans and the Other Benefits (provided
that such obligation to provide Other Benefits in
the form of office rent and secretarial support
shall not exceed $16,666.00 per month)
substantially equivalent to those that were being
provided prior to the termination ("Benefit
Continuation"); provided, however, that if
Executive becomes employed with another employer
and is eligible to receive any benefits that are
substantially equivalent to those required under
the Benefit Continuation coverage, then the
Company may terminate such Benefit Continuation
coverage insofar as it relates to such equivalent
benefit.
(d) Effect on Benefit Plans. The existence of this Agreement shall
not prohibit or restrict Executive's entitlement to
participate in the executive compensation, employee benefit
and other plans or programs in which executives of the Company
or the Operating Company are eligible to participate. Nothing
herein shall restrict the Company's or the Operating Company's
right to amend any plan, practice, policy or program in a
manner generally applicable to similarly situated active
executives, in which event Executive shall be entitled to
participate on the same basis (including payment of applicable
contributions) as similarly situated active executives of the
Company.
(e) No Mitigation. Executive shall not be obligated to seek new
employment or take any other action to mitigate the benefits
to which Executive is entitled hereunder. Except as
contemplated by Section 3(c)(ii)(E) and Section 3(d) with
respect to the Benefit Continuation, such benefits shall not
be reduced whether or not Executive obtains new employment.
4. Mutual Release. Payment of the Severance Amount shall be conditioned
upon the execution by Executive and the Company of a valid mutual release, to be
prepared by the Company, in which Executive and the Company mutually release the
other, to the maximum extent permitted by law, from any and all claims either
may have against the other that relate to or arise out of Executive's employment
or termination of employment, except such claims arising under this Agreement,
any employee benefit plan or any other written plan or agreement.
5. Excise Taxes.
(a) Determination and Payment. If it is determined that any
payment, distribution or other benefit to Executive, whether
pursuant to this Agreement or otherwise (a "Payment"), would
be subject to any tax (e.g. excise tax under Section 4999 of
the Internal Revenue
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Code of 1986) other than income tax (such tax, together with
any interest and penalties related thereto are hereinafter
collectively referred to as an "Excise Tax"), then the Company
shall promptly pay to Executive an additional payment
("Gross-Up Payment") in an amount such that Executive retains,
after payment of all taxes, and all interest and penalties
with respect thereto (including, without limitation, income
tax and Excise Tax imposed upon the Gross-Up Payment), an
amount of the Gross-Up Payment equal to the Excise Tax imposed
upon the Payment. The determination of the amount of any
Gross-Up Payment shall be made by a certified public
accounting firm selected jointly by the Company and Executive
(the "Accounting Firm"), the fees and expenses of which shall
be paid by the Company.
(b) Contesting. Executive shall promptly notify the Company of any
claim that, if successful, would require the payment of the
Gross-Up Payment. Without the consent of the Company,
Executive shall not pay such claim prior to the date that the
payment of taxes with respect to such claim is due. If the
Company notifies Executive in writing prior to such due date
that it desires to contest the claim, Executive shall take all
actions in connection with contesting the claim reasonably
required by the Company (including accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company); provided, however, that
the Company shall pay all costs and expenses (including
additional interest and penalties) incurred in connection with
such contest and shall indemnify and hold Executive harmless,
on an after-tax basis, from any tax (including reasonable
attorneys fees, interest and penalties with respect thereto)
imposed as a result thereof.
6. Claims.
(a) Arbitration of Claims. Executive and Company shall settle by
arbitration any dispute or controversy arising in connection
with this Agreement, whether or not such dispute involves a
plan subject to the Employee Retirement Income Security Act of
1974, as amended. Such arbitration shall be conducted in
accordance with the rules of the American Arbitration
Association before a panel of three arbitrators sitting in
Morris County, New Jersey or such other location as shall be
mutually agreed by the parties. The award of the arbitrators
shall be final and nonappealable, and judgment may be entered
on the award of the arbitrators in any court having proper
jurisdiction. All expenses of such arbitration shall be borne
by the Company. THE ARBITRATORS SHALL HAVE NO AUTHORITY TO
AWARD PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES (WHETHER
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IT BE EXEMPLARY DAMAGES, TREBLE DAMAGES, OR ANY OTHER PENALTY
OR PUNITIVE TYPE OF DAMAGES) REGARDLESS OF WHETHER SUCH
DAMAGES MAY BE AVAILABLE UNDER APPLICABLE LAW, EXECUTIVE AND
THE COMPANY HEREBY EACH WAIVING THEIR RIGHT, IF ANY, TO
RECOVER PUNITIVE DAMAGES IN CONNECTION WITH ANY SUCH CLAIMS,
DISPUTES OR DISAGREEMENTS REGARDLESS OF WHETHER SUCH CLAIM,
DISPUTE OR DISAGREEMENT ARISES UNDER THE LAW OF CONTRACTS,
TORTS, (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF EVERY
KIND AND STRICT LIABILITY WITHOUT FAULT), OR PROPERTY, OR AT
COMMON LAW OR IN EQUITY OR OTHERWISE. EXECUTIVE ACKNOWLEDGES
THAT BY SIGNING THIS AGREEMENT, EXECUTIVE IS WAIVING ANY RIGHT
THAT EXECUTIVE MAY HAVE TO A JURY TRIAL OR, OTHER THAN IN
RESPECT OF A DISPUTE OR CONTROVERSY ARISING IN CONNECTION WITH
SECTION 13 OR SECTION 14, A TRIAL BEFORE A JUDGE IN CONNECTION
WITH, OR RELATING TO, A CLAIM.
(b) Payment of Legal Fees and Costs. The Company agrees to pay as
incurred, to the full extent permitted by law, all reasonable
legal fees and expenses which (i) Executive may reasonably
incur as a result of any contest (regardless of the outcome
thereof) by the Company, Executive or others of any action
taken pursuant to the terms of this Agreement or (ii) CDM
Investor Group LLC or any Permitted Excluded Transferees may
reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, CDM Investor Group LLC or any
Permitted Excluded Transferees or others of any action in
connection with CDM Investor Group LLC's or any of its
Permitted Excluded Transferees' membership interest in Crunch,
or of the validity or enforceability of, or liability under,
any provision of this Agreement, the Operating Agreement of
Crunch, dated as of November 25, 2003, among Crunch and the
other parties thereto (the "Crunch Operating Agreement") or
the Crunch Membership Agreement, or any guarantee of
performance thereof (including as a result of any contest by
Executive, CDM Investor Group LLC or any of its Permitted
Excluded Transferees about the amount of payment pursuant to
this Agreement, the Crunch Operating Agreement or the Crunch
Membership Agreement), plus in each case interest on any
delayed payment at the rate of 8% per annum.
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(c) Agent for Service of Legal Process. Service of legal process
upon the Company with respect to a claim under this Agreement
shall be made upon the General Counsel of the Company.
7. Tax Withholding. All payments to the Executive under this Agreement
will be subject to the withholding of all applicable employment and income
taxes.
8. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provision of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
9. Successors. This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of the Company. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company or the Operating Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company or the
Operating Company, as applicable, would be required to perform if no succession
had taken place.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. This
Agreement in no way modifies the Indemnification Agreement entered into by
Executive and Pinnacle Holdings Corporation ("Indemnification Agreement") and
such Indemnification Agreement is specifically incorporated by reference herein
and may not be terminated so long as this Agreement is still in effect. This
Agreement may not be modified in any manner except by a written instrument
signed by both the Company and Executive; provided that any modification of
Section 18 shall require the written consent of the Company, Executive and the
Operating Company.
11. Notices. Any notice required under this Agreement shall be in
writing and shall be delivered by certified mail return receipt required to each
of the parties as follows:
To Executive:
C. Dean Metropoulos
100 Northfield Street
Greenwich, CT 06830
To the Company:
Pinnacle Foods Corporation
1 Old Bloomfield Road
Mountain Lakes, NJ 07046
Attention: General Counsel
12. Validity. If any provision of this Agreement is held to be illegal,
invalid or unenforceable, such provision shall be deemed severed from this
Agreement, this
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Agreement shall be constructed and enforced as if the illegal, invalid or
unenforceable provision had never comprised a portion of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect.
Furthermore, in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as part of this Agreement a provision as similar in
terms as may be possible to the provision that was determined to be illegal,
invalid or unenforceable and such additional provision shall be legal, valid and
enforceable.
13. Confidential Information.
(a) The Executive acknowledges that the Company and its
subsidiaries have trade, business and financial secrets and
other confidential and proprietary information (collectively,
the "Confidential Information"). Confidential Information
shall not include (i) information that is generally known to
other persons or entities who can obtain economic value from
its disclosure or use and (ii) information required to be
disclosed by the Executive pursuant to a requirement of a
governmental agency or law of the United States of America or
a state thereof or any governmental or political subdivision
thereof; provided, however, that before providing such
information pursuant to clause (ii) above, Executive shall (A)
notify the Company as soon as practicable after receipt of any
subpoena or order requiring the production of information so
that the Company may have the opportunity to seek a protective
order and (B) consult with the Company with respect to any
required disclosure.
(b) During and following the Executive's employment by the
Company, the Executive shall hold in confidence and not
directly or indirectly disclose or use any Confidential
Information except to the extent authorized in writing by the
Board or required by any court or administrative agency, other
than to an employee of the Company, or its subsidiaries or a
person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the
Executive of duties as an executive of the Company.
(c) The Executive further agrees not to use any Confidential
Information for the benefit of any person or entity other than
the Company or its subsidiaries.
14. Non-Competition.
(a) Term of Non-Competition. During the term of this Agreement and
in the event the Executive's employment with the Company is
terminated (other than a termination in connection with the
occurrence of a Change in Control) or Executive resigns for
Good
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Reason (other than a resignation in connection with the
occurrence of a Change in Control), if applicable, and
Executive receives payment of the Severance Amount, for the
remainder of the Severance Period, Executive shall not engage
in or promote any business within the United States that is
principally engaged in the business of manufacturing and
marketing food products that directly compete in the same
categories as the core products of the Company at the time of
termination; provided that the foregoing shall not prohibit
Executive from owning less than 10% of the voting securities
of any publicly traded company so long as Executive does not
otherwise engage in or promote the activities of that company.
Executive understands that the restrictions set forth in this
Section 14(a) may limit his ability to earn a livelihood in a
business similar to the business of the Company or any
subsidiary thereof, but he nevertheless believes that he has
received and will receive sufficient consideration and other
benefits as an employee of the Company and as otherwise
provided hereunder to justify clearly such restrictions which,
in any event (given his education, skills and ability),
Executive does not believe would prevent him from earning a
living.
(b) Use of Confidential Information. During the term of this
Agreement and during the term of non-competition, Executive
will not use Executive's access to, knowledge of, or
application of Confidential Information to perform any duty
for any Competing Business; it being understood and agreed to
that this Section 14(b) shall be in addition to and not be
construed as a limitation upon the covenants in Section 13
hereof.
(c) Executive acknowledges that the geographic boundaries, scope
of prohibited activities, and duration of this Section 14 are
reasonable in nature and are no broader than are necessary to
maintain the confidentiality and the goodwill of the Company's
and its subsidiaries' proprietary information, plans and
services and to protect the other legitimate business
interests of the Company and its subsidiaries.
(d) If any court determines that any portion of this Section 14 is
invalid or unenforceable, the remainder of this Section 14
shall not thereby be affected and shall be given full effect
without regard to the invalid provisions. If any court
construes any of the provisions of this Section 14, or any
part thereof, to be unreasonable because of the duration or
scope of such provision, such court shall have the power to
reduce the duration or scope of such provision and to enforce
such provision as so reduced.
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15. No Waiver. The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, shall not be deemed
to be a waiver of such provision or right or any other provision or right of
this Agreement. No waiver by either party at any time of any breach by the other
party of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at any time.
16. Injunctive Relief. Executive acknowledges that money damages would
be both incalculable and an insufficient remedy for a breach of Section 13 or
Section 14 by Executive and that any such breach would cause the Company
irreparable harm. Accordingly, the Company, in addition to any other remedies at
law or in equity it may have, shall be entitled, without the requirement of
posting of bond or other security, to equitable relief, including injunctive
relief and specific performance, in connection with a breach of Section 13 or
Section 14 by Executive.
17. Governing Law. The provision of this Agreement shall be constructed
in accordance of the laws of the State of Delaware, without giving effect to
that state's choice of law provision.
18. Guarantee. The Operating Company hereby guarantees the full and
complete performance of each of the obligations of the Company under this
Agreement.
19. Prior Agreement. Effective as of the Effective Date, Executive
hereby releases and forever discharges the Company and its affiliates from any
and all claims and obligations arising out of or resulting from the Prior
Agreement. Counterparts; Facsimile Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all
such counterparts shall constitute but one agreement. Facsimile counterpart
signatures to this Agreement shall be acceptable.
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IN WITNESS WHEREOF, this Agreement is hereby executed as of the date and
year first above written.
PINNACLE FOODS HOLDING CORPORATION
/s/ M. KELLEY MAGGS
-----------------------------------
Name: M. Kelley Maggs
Title: Senior Vice President
For purposes of Section 18
PINNACLE FOODS CORPORATION
/s/ M. KELLEY MAGGS
-----------------------------------
Name: M. Kelley Maggs
Title: Senior Vice President
EXECUTIVE
/s/ C. DEAN METROPOULOS
-----------------------------------
C. Dean Metropoulos
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