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EXHIBIT 10(q)
EMPLOYMENT AGREEMENT
AGREEMENT made this 1st day of October, 1995, by and between The
Morningstar Group Inc. (hereinafter "Company") and Michael J. Cramer
(hereinafter "Employee").
WHEREAS, Company is a Delaware corporation in the business, through
its various subsidiaries of manufacture, processing and distribution of
specialty dairy products throughout the United States and,
WHEREAS, Employee is and has been employed as the Executive Vice
President, Secretary and General Counsel of the Company and,
WHEREAS, Company is desirous of contracting with Employee to assure he
will continue his employment with Company and/or its subsidiaries and,
WHEREAS, Employee is desirous of continuing his employment with
Company and/or its subsidiaries.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties above-named do hereby
agree as follows:
1. Position and Duties. Company hereby agrees to employ Employee
and Employee agrees to be employed by Company as the Executive Vice President
and Secretary of its related operations and subsidiaries. Employee shall have
responsibility for the administrative and legal affairs of the Company and its
subsidiaries and shall report to the CEO and to the Board of Directors of the
Company.
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Employee shall devote sufficient time, attention and energies to the
business of Company to accomplish his duties herein and except as otherwise
provided in this Agreement, shall not be engaged in any activity or have any
ownership interest in any business in competition with Company or potentially
in competition with Company.
2. Term of Agreement. This Agreement shall commence on October
1, 1995, and continue until terminated pursuant to Section 4 hereof.
3. Compensation and Benefits. The Company shall pay to the
Employee an annual compensation package based on the salary, bonus and
allowances, if any, (the "Compensation") earned by the Employee for the year
1995 (whether paid in 1995 or otherwise). In computing the Compensation to be
paid, the Compensation actually paid to Employee shall be annualized (the
"Annual Compensation").
Further, the Company shall provide Employee such benefits as the
Company provides to its other employees similarly situated.
To the extent this Agreement is not terminated pursuant to Section 4,
the Company shall review the Annual Compensation and make appropriate
adjustments when its other management level employees are reviewed.
4. Termination.
a. By Company. The Company, by action of its Board of
Directors may terminate Employee's employment hereunder but only for
Cause. Cause shall be defined as the death of Employee or the
disability of Employee, which disability continues for a period of six
(6) months; misappropriation by Employee of Company's assets or other
willful misconduct or bad faith in disregard of Employee's material
duties to Company or the gross neglect by Employee of the performance
of his duties.
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In the event of Employee's termination by Company
without Cause, Company shall pay to Employee within seven (7) days of
said termination an amount equal to 1.5 times Employee's Annual
Compensation for the last full year of employment but in no event less
than the sum of Two Hundred Thousand ($200,000) Dollars. Further,
Employee's medical and dental insurance shall be maintained by the
Company for a period of one year on the same terms and conditions
which existed prior to Employee's termination.
b. By Employee. Employee may terminate this Agreement
at any time by giving written notice to Company at such place it may
from time to time designate in writing. Written notice shall be at
least One Hundred Twenty (120) days prior to said proposed date of
termination. This notice provision shall be Sixty (60) days if the
Company sells a majority of its assets, if a majority of the Company's
shares are sold or if control of a majority of the Company's shares
changes or occurs through merger, sale, consolidation, or any like
occurrence or event (a "Sale").
In the event of a Sale, this Agreement shall, at
Employee's option terminate and Employee shall be paid at closing of
the Sale the sum calculated in accordance with Section 4(a) hereof as
if Employee was terminated without Cause. Notwithstanding the above
right of the Employee to terminate, the Employee agrees that he will
remain with the Company for up to 6 months after a Sale upon request
of the Company. In such event, Employee will receive, in addition to
the sum calculated in accordance with Section 4(a), compensation for
the period worked after the Sale at Employees' normal rate and on the
same basis.
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5. Binding Effect; Assignment. This Agreement shall be
binding upon the parties hereto, their heirs, executors,
administrators, successors and assigns. Employee shall not assign any
of his rights under this Agreement. The rights and liabilities of
Company hereunder shall inure to the benefit of, and shall be assumed
by and binding upon, any successor or assignee of the Company whether
by sale or transfer of controlling shares of Company, merger or
consolidation of the Company with another corporation, by sale of 50%
or more of the assets of Company or any like occurrence or event.
6. Entire Agreement; Amendment. This Agreement is the
entire agreement between the parties regarding the subject matter
hereof and supersedes any understandings or agreements whether oral or
written. Any changes to this Agreement must be made in writing and
signed by both parties.
7. Waiver. Failure by either party to insist on strict
enforcement of any provision of this Agreement on one or more
occasions shall not be construed as a waiver of such provision and
shall not deprive the party of the right to require compliance with
the provision of the future.
8. Severability. The invalidity or unenforceability of
any provision of this Agreement shall not effect the validity or any
other provision.
9. Applicable Law. This Agreement shall be governed and
construed under and in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first written above.
EMPLOYEE
/s/ MICHAEL J. CRAMER
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Michael J. Cramer
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COMPANY
By: /s/ C. DEAN METROPOULOS
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C. Dean Metropoulos, CEO
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