Exhibit 10.57
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“ Agreement ”) is entered into as of September
1, 2004, by and between DEL MONTE CORPORATION, a Delaware
corporation, with its principal place of business in San Francisco,
California (the “ Corporation ”) and DONALD
J. BINOTTO , an individual residing in the Commonwealth of
Pennsylvania (“ Executive ”) .
RECITALS
WHEREAS, the Corporation desires to
employ Executive on the terms and conditions set forth herein, and
Executive desires to be employed by the Corporation on such terms
and conditions.
NOW, THEREFORE, in consideration of
the foregoing recital, the promises, covenants and agreements of
the parties, and the mutual benefits they will gain by the
performance of the promises herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
AGREEMENT
1. Term of Employment;
Duties .
(a) Term of Employment . The
Corporation agrees to employ Executive as its Senior Vice
President, Operations and Supply Chain, and Executive hereby
accepts such employment, subject to the terms and conditions set
forth herein. The term of employment of Executive under this
Agreement shall begin as of the date hereof and continue until
terminated pursuant to Section 4 hereof. Notwithstanding the
foregoing, the provisions of Sections 4(i) (Ongoing Obligations), 5
(Indemnification), 6 (Proprietary Information Obligations), 7
(Non-competition), 8 (Noninterference), 9 (Injunctive Relief), and
11 (Miscellaneous) shall survive the termination of this
Agreement.
(b) Duties . Executive shall
serve in an executive capacity and shall perform such duties as are
consistent with Executive’s position as Senior Vice
President, Operations and Supply Chain and as may be reasonably
required by the Del Monte Corporation Board of Directors (the
“ Board ”). In such position, Executive shall
establish, develop and lead a unified supply chain across the
Corporation’s entire portfolio.
(c) Exclusive Performance of
Duties . While employed by the Corporation, Executive agrees
that Executive shall devote substantially all of Executive’s
business time and best efforts solely and exclusively to the
performance of Executive’s duties hereunder and to the
business and affairs of the Corporation, whether such business is
operated directly by the Corporation or through any affiliate
of
the Corporation. Executive further agrees that
while employed by the Corporation, Executive will not, directly or
indirectly, provide services on behalf of any competing
corporation, company, limited liability company, partnership, joint
venture, consortium, or other competing entity or person, whether
as an employee, consultant, independent contractor, agent, sole
proprietor, partner, joint venturer, creditor, corporate officer or
director; nor shall Executive acquire by reason of purchase during
the term of Executive’s employment with the Corporation the
ownership of more than one percent (1%) of the outstanding equity
interest in any such competing entity. For purposes of this
Agreement, a “competing” entity is one engaged in any
of the businesses in which the Corporation is engaged during
Executive’s employment with the Corporation, which includes
without limitation: (i) dry and canned pet food and pet snacks
business in the United States and Canada, (ii) specialty pet food
business conducted worldwide, (iii) ambient tuna business in North
America, (iv) other ambient seafood business involving products
marketed in North America, (v) retail private label soup and retail
private label gravy businesses in the United States, (vi) broth
business in the United States, (vii) infant feeding business in the
United States, and (viii) the manufacture and sale of processed
fruits and vegetables, pineapple products and tomato products in
the United States and South America (the “Businesses”).
Subject to the foregoing, Executive may serve on boards of
directors of non-competing unaffiliated corporations, subject to
advance approval by the Chief Executive Officer
(“CEO”), and may serve on the boards of charitable
organizations.
(d) Corporation Policies .
The employment relationship between the parties shall be governed
by the general employment policies and practices of the
Corporation, including, without limitation, the Del Monte Foods
Standards of Business Conduct; provided, however, that when the
terms of this Agreement differ from or are in conflict with the
Corporation’s general employment policies or practices, this
Agreement shall control.
2. Compensation and
Benefits .
(a) Salary . Executive shall
receive for Executive’s services rendered hereunder an annual
base salary of Three Hundred Twenty-Five Thousand Dollars
($325,000), as adjusted from time to time by the Compensation
Committee of the Board (the “ Base Salary ”),
payable on a semi-monthly basis in twenty-four (24) equal
installments, less all applicable federal, state or local taxes and
other normal payroll deductions.
(b) Annual Bonus . While a
full-time employee of the Corporation, Executive shall be entitled
to participate in the Del Monte Foods Company’s Annual
Incentive Plan or any applicable successor plan (the “
AIP ”) pursuant to the terms and conditions set forth
therein. Executive shall be eligible to receive an annual AIP bonus
(the “ Bonus ”) targeted at 62.5% of
Executive’s Base Salary, as adjusted from time to time in
accordance with the AIP. AIP awards are not guaranteed and actual
payment of the Bonus is subject to the performance of the
Corporation and Del Monte Foods Company and Executive’s
individual achievements.
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(c) Employee Welfare Benefits
. During Executive’s employment with the Corporation,
Executive shall be entitled to participate in any group insurance
for hospitalization, medical, dental, vision, prescription drug,
accident, disability, life or similar plan or program of the
Corporation now existing or established hereafter to the extent
that Executive is eligible under the general provisions thereof.
The Corporation may, in its sole discretion and from time to time,
establish additional senior management benefit programs as it deems
appropriate. Executive understands that any such plans may be
modified or eliminated in the discretion of the Corporation in
accordance with applicable law.
(d) Pension and Retirement
Benefits. During Executive’s employment with the
Corporation, Executive shall be entitled to participate in any
pension, 401(k) and retirement plans of the Corporation now
existing or established hereafter to the extent that Executive is
eligible under the general provisions thereof. The Corporation may,
in its sole discretion and from time to time, establish additional
senior management benefit programs as it deems appropriate.
Executive understands that any such plans may be modified or
eliminated in the discretion of the Corporation in accordance with
applicable law.
(e) Vacation . Executive
shall be entitled to a period of annual paid vacation time equal to
not less than five (5) weeks per year as adjusted from time to time
in accordance with the Corporation’s vacation policy. The
days selected for Executive’s vacation shall be mutually
agreeable to the Corporation and Executive. Executive’s
eligibility to carryover or to be paid for any portion of
Executive’s accrued, but unused vacation shall be subject to
the Corporation policy applicable to employees at a similar level
in effect during the term of this Agreement.
(f) Expenses . Subject to
compliance with the Corporation’s normal and customary
policies regarding substantiation and verification of business
expenses, the Corporation shall directly pay or shall fully
reimburse Executive for all customary and reasonable expenses
incurred by Executive for promoting, pursuing or otherwise
furthering the business of the Corporation and its
affiliates.
(g) Perquisites and Supplemental
Benefits . During Executive’s employment with the
Corporation, Executive shall be entitled to participate in the
Corporation’s Executive Perquisite Plan, subject to the terms
and conditions thereof, and such other perquisites and supplemental
benefits, if any, as may be approved from time to time by the
Compensation Committee of the Board. Executive understands that any
such plans may be modified or eliminated in the discretion of the
Corporation in accordance with applicable law.
3. Stock Options
.
(a) During Executive’s
employment with the Corporation, Executive shall be eligible to
participate in the applicable stock and stock option plans of Del
Monte Foods Company. The terms and conditions of any stock or stock
option agreement entered into by Executive and Del Monte Foods
Company from time to time are hereby incorporated into this
Agreement.
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(b) From time to time during
Executive’s employment with the Corporation, the Board (or a
committee thereof) shall evaluate the performance of management of
the Corporation and determine whether it is appropriate to grant
any additional stock and/or stock options to management, including
without limitation, Executive. The Board (or such committee) shall
be under no obligation to grant any such stock or stock options to
Executive (or any other member of management), but will take into
consideration industry standards for stock and stock option
issuances to Senior Vice Presidents of Operations and Supply Chain
in similar circumstances.
4. Termination of
Employment .
(a) Termination Upon Death .
If Executive dies during Executive’s employment with the
Corporation, the Corporation shall pay to Executive’s estate,
or other designated beneficiary(ies) as shown in the records of the
Corporation, any earned and unpaid Base Salary as of
Executive’s employment termination date (which, for purposes
of this Section 4(a), shall be the date of Executive’s
death); accrued but unused vacation time as of the end of the month
in which Executive dies; the amount of any unreimbursed expenses
described in Section 2(f), which were incurred by Executive before
the date of Executive’s death; and benefits, if any, that
Executive’s estate, or other designated beneficiary(ies), is
then entitled to receive under the benefit plans of the Corporation
in which Executive was an eligible participant. Additionally, the
Corporation shall pay to Executive’s estate, or other
designated beneficiary(ies), at the end of the fiscal year in which
Executive’s termination of employment occurs, a pro rata
portion of Executive’s target Bonus for the year in which
Executive’s termination of employment occurs, prorated for
Executive’s actual employment period during such year and
adjusted for performance. All of the foregoing payments and
benefits shall be paid less all applicable federal, state or local
taxes and other normal payroll deductions, if any. Except as
expressly provided in this Section 4(a), the Corporation shall have
no obligation to make any other payment, including severance or
other compensation of any kind or payment in lieu of notice, and
all other benefits provided by the Corporation to Executive under
this Agreement or otherwise shall cease as of Executive’s
termination date.
(b) Termination Upon
Disability . The Corporation may terminate Executive’s
employment in the event Executive suffers a disability that renders
Executive unable, as determined in good faith by the Board, to
perform the essential functions of Executive’s position, even
with reasonable accommodation, for six (6) consecutive months. In
the event that Executive’s employment is terminated pursuant
to this Section 4(b), Executive shall receive payment for any
earned and unpaid Base Salary as of Executive’s employment
termination date (which, for purposes of this Section 4(b), shall
be the date specified by the Board); accrued but unused vacation
time as of the end of the month in which the termination of
employment for disability occurs; the amount of any unreimbursed
expenses described in Section 2(f), which were incurred by
Executive before Executive’s termination date; and benefits,
if any,
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that Executive is then entitled to receive under
the benefit plans of the Corporation in which Executive was an
eligible participant. In addition, after Executive’s
termination date, Executive shall receive long term disability
benefits under the applicable benefit plans of the Corporation to
the extent Executive qualifies for such benefits. In the event that
Executive’s employment is terminated as a result of a
determination pursuant to this Section 4(b), and provided
that Executive has executed a general release in a form and
substance satisfactory to the Corporation, the Corporation also
shall provide to Executive as severance the payment of an amount
equal to Executive’s highest Base Salary during the twelve
(12) month period prior to the termination date and the target
Bonus for the year in which such termination occurs, payable in
equal installments on the Corporation’s regular pay schedule
over a period of twelve (12) months. All of the foregoing payments
and benefits shall be paid less all applicable federal, state or
local taxes and other normal payroll deductions, if any. Except as
expressly provided in this Section 4(b), the Corporation shall have
no obligation to make any other payment, including severance or
other compensation of any kind or payment in lieu of notice, and
all other benefits provided by the Corporation to Executive under
this Agreement or otherwise shall cease as of Executive’s
termination date.
(c) Voluntary Termination
. Executive may voluntarily terminate Executive’s
employment with the Corporation at any time. In the event that
Executive’s employment is terminated under this Section 4(c),
Executive shall receive payment for any earned and unpaid Base
Salary as of Executive’s voluntary employment termination
date (which, for purposes of this Section 4(c), shall be the date
Executive ceases to perform Executive’s duties hereunder as
stated in Executive’s letter of resignation or as specified
by the Board); accrued but unused vacation time as of
Executive’s voluntary employment termination date; the amount
of any unreimbursed expenses described in Section 2(f), which were
incurred by Executive before Executive’s voluntary employment
termination date; and benefits, if any, Executive is then entitled
to receive under the benefit plans of the Corporation in which
Executive was an eligible participant. All of the foregoing
payments and benefits shall be paid less all applicable federal,
state or local taxes and other normal payroll deductions, if any.
Except as expressly provided in this Section 4(c), the Corporation
shall have no obligation to make any other payment, including
severance or other compensation of any kind or payment in lieu of
notice, and all other benefits provided by the Corporation to
Executive under this Agreement or otherwise shall cease as of
Executive’s termination date.
(d) Termination for Cause
.
(i) Termination; Payment of
Accrued Benefits . The Board may terminate Executive’s
employment with the Corporation at any time for “
Cause ” (as defined below). In the event that
Executive’s employment is terminated for Cause under this
Section 4(d), Executive shall receive payment for all earned but
unpaid Base Salary as of Executive’s employment termination
date (which, for purposes of this Section 4(d), shall be the date
specified by the Board); accrued but unused vacation time as of
Executive’s termination date; the amount of any unreimbursed
expenses described in Section 2(f), which were incurred by
Executive before Executive’s
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termination date; and benefits, if any,
Executive is then entitled to receive under the benefit plans of
the Corporation in which Executive was an eligible participant. All
of the foregoing payments and benefits shall be paid less all
applicable federal, state or local taxes and other normal payroll
deductions. Except as expressly provided in this Section 4(d), the
Corporation shall have no obligation to make any other payment,
including severance or other compensation of any kind or payment in
lieu of notice, and all other benefits provided by the Corporation
to Executive under this Agreement or otherwise shall cease as of
Executive’s termination date.
(ii) Definition of Cause .
For purposes of this Agreement, the Corporation shall have
“Cause” to terminate Executive’s employment upon
the occurrence of any of the following: (A) a material breach by
Executive of the terms of this Agreement; (B) any act of theft,
misappropriation, embezzlement, intentional fraud or similar
conduct by Executive involving the Corporation or any affiliate;
(C) the conviction or the plea of nolo contendere or the
equivalent in respect of a felony involving an act of dishonesty,
moral turpitude, deceit or fraud by Executive; (D) any damage of a
material nature to the business or property of the Corporation or
any affiliate caused by Executive’s willful or grossly
negligent conduct; or (E) Executive’s failure to act in
accordance with any specific lawful instructions given to Executive
in connection with the performance of Executive’s duties for
the Corporation or any affiliate.
(e) Termination Without Cause
.
(i) Termination; Payment of
Accrued Benefits . The Corporation at any time without prior
written notice may terminate Executive’s employment without
cause. In the event Executive’s employment is terminated
without cause, Executive shall receive payment for all earned but
unpaid Base Salary as of Executive’s termination date (which,
for purposes of this Section 4(e), shall be the date specified by
the Board); accrued but unused vacation time as of
Executive’s termination date; the amount of any unreimbursed
expenses described
