Exhibit 10.55
ADDENDUM TO EMPLOYMENT
AGREEMENT
MARK WESTPHAL
DECEMBER 9, 2008
WHEREAS, Michael Foods, Inc. (the
“Company”) and the Executive have previously entered
into an Employment Agreement, dated as of July 1, 2008 (the
“Agreement”).
WHEREAS, the Company has also
determined that it is in the Company’s best interests and
those of its stockholders that the Agreement be amended and
restated with the intent of ensuring that no payments or benefits
hereunder are subject to additional tax and other penalties under
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”); and
WHEREAS, the Executive is willing to
continue to serve the Company on the terms and conditions set forth
below;
NOW, THEREFORE, IT IS HEREBY AGREED
AS FOLLOWS:
Section 3 a. of the Agreement
will be amended by changing the reference to Section 11(b) to
Section 10(b).
Section 3 c. v. of the
Agreement will be amended by changing the reference to
Section 10(c) to Section 9(c).
Section 3 d. of the Agreement
will be amended by changing the reference to Section 11(b) to
Section 10(b).
Section 5 c. of the Agreement
will be amended by adding the following sentence to the end of that
section: “If the Executive is the prevailing party, any
reimbursement made under this Section 5(c) shall be made no
later than the later of (i) the end of the year in which the
legal action, arbitration or other proceeding is finally resolved,
and (ii) the last day of the Executive’s taxable year
following the taxable year in which the expense was
incurred.”
Section 8 a. of the Agreement
will be amended by changing the reference to Section 9 to
Section 8, and by changing the reference to Section 9(a)
to Section 8(a). Section 8 a. of the Agreement will be
also amended by adding the following provision to the end of the
section:
Unless the Executive shall have
given prior written notice specifying a different order to the
Company of Payments to be reduced to achieve the Reduced Amount,
any Payments to be reduced hereunder shall be determined in a
manner that has the least economic cost to the Executive, on an
after-tax basis, and, to the extent the economic cost is
equivalent, such Payments shall be reduced in the
inverse
order of when the Payments would
have been made to the Executive until the reduction specified
herein is achieved. The Executive may specify the order of
reduction of the Paymen
