EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AGREEMENT (the “ Agreement ”)
is made and entered into as of November 6, 2006, by and among
Swift Foods Company, a Delaware corporation (together with its
successors and assigns permitted hereunder, the “
Company ”), Swift & Company, a Delaware
corporation and a wholly owned subsidiary of the Company (“
S&C ”) and Ray Silcock (the “
Executive ”).
WHEREAS, the
parties hereto deem it desirable for the Company to employ the
Executive on the terms and conditions set forth herein.
NOW, THEREFORE, IT
IS HEREBY AGREED AS FOLLOWS:
1.
Employment Period . Subject to Section 3, the
Company hereby agrees to employ the Executive, and the Executive
hereby agrees to be employed by the Company, in accordance with the
terms and provisions of this Agreement, for the period commencing
on November 6, 2006 (the “ Effective Date
”) and ending on the third anniversary of the Effective Date
(the “ Employment Period ”); provided,
however, commencing on the third anniversary of the Effective Date,
and on each anniversary of such date occurring thereafter, the
Employment Period shall automatically be extended for one
additional year unless at least 6 months prior to such date
(but no more than 12 months prior to such date), the Company
or the Executive shall have given written notice that it or he, as
applicable, does not wish to extend this Agreement (a “
Non-Renewal Notice ”). The term “
Employment Period ,” as utilized in this
Agreement, shall refer to the Employment Period as so automatically
extended.
(a)
Position and Duties .
(i) During
the term of the Executive’s employment, the Executive shall
serve as the Executive Vice President and Chief Financial Officer
of the Company and, in so doing, shall report to the President and
Chief Executive Officer of S&C. The Executive shall have
supervision and control over, and responsibility for, such
management and operational functions of the Company currently
assigned to such positions, and shall have such other powers and
duties (including holding officer positions with the Company and
one or more subsidiaries of the Company) as may from time to time
be prescribed by the Board and agreed to by the Executive, so long
as such powers and duties are reasonable and customary for the
chief financial officer of an enterprise comparable to the
Company.
(ii) During
the term of the Executive’s employment, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote substantially all of his
business time to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities assigned to
the Executive hereunder, to use the Executive’s reasonable
best efforts to perform faithfully, effectively and efficiently
such responsibilities. During the term of Executive’s
employment, it shall not be a violation of this Agreement for the
Executive to (1) serve on corporate, civic or charitable
boards or committees, (2) deliver lectures or fulfill speaking
engagements and (3) manage personal investments, so
long
as such
activities do not materially interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement.
(i)
Base Salary . During the term of the Executive’s
employment, the Executive shall receive an annual base salary
(“ Annual Base Salary ”) at least equal
to Four Hundred Fifty Thousand Dollars ($450,000) which shall be
paid by S&C in accordance with the customary payroll practices
of the Company and S&C. Commencing on the first day (the
“ First Date ”) of the month in the month
beginning after the first anniversary of the Effective Date, and on
each subsequent anniversary date of the First Date as long as the
Executive remains an employee of the Company (the First Date and
each subsequent anniversary of the First Date being herein referred
to as an “ Adjustment Date ”), the Annual
Base Salary of the Executive shall be increased by an amount equal
to five percent (5%) of the then current Annual Base Salary or such
greater amount as the Board in its discretion may determine
appropriate. The result of such increase to the then current Annual
Base Salary shall constitute the Executive’s Annual Base
Salary commencing on the Adjustment Date then at hand and
continuing until the next Adjustment Date. Any increase in Annual
Base Salary shall not serve to limit or reduce any other obligation
to the Executive under this Agreement. The term Annual Base Salary
as utilized in this Agreement shall refer to Annual Base Salary as
so increased.
(ii)
Bonuses . The Executive shall be eligible to receive an
annual performance bonus (a “ Bonus ”) in
accordance with the provisions of Exhibit A . For each
fiscal year of the Company, the Board shall approve a budget which
shall include, among other things, a target for the items set forth
on Exhibit A hereto for that year. A portion of the
Executive’s Bonus shall be based upon the Company’s
achievement of such targets in accordance with the guidelines set
forth on Exhibit A hereto. The Bonus shall be payable
in accordance with the practices of the Company and S&C after
the determination of the Company’s EBITDA (as defined in
Exhibit A ), not to exceed two and one half months past the
close of the fiscal year.
(iii)
Incentive, Savings and Retirement Plans . During the term of
the Executive’s employment, the 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 (“ Investment Plans
”).
(iv)
Welfare Benefit Plans . During the term of the
Executive’s employment, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs (“
Welfare Plans ”) provided by the Company
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other executives of the
Company.
(v)
Perquisites . During the term of the Executive’s
employment, the Executive shall be entitled to receive (in addition
to the benefits described above) such perquisites and fringe
benefits appertaining to his position in accordance with any
practice
2
established by
the Board. Executive shall be furnished with all such facilities
and services suitable to his position and adequate for the
performance of his duties.
(vi)
Expenses . During the term of the Executive’s
employment, the Executive shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by
the Executive in accordance with the policies, practices and
procedures of the Company. In addition, the Company shall reimburse
the Executive (A) for his reasonable attorney’s fees
incurred in connection with the negotiation and execution of this
Agreement and, (B) in accordance with the policies of the
Company, for his reasonable expenses incurred in relocating
Executive and his family to the Denver, Colorado area.
(vii)
Vacation and Holidays . During the term of the
Executive’s employment, the Executive shall be entitled to
four weeks of paid vacation time each year in addition to those
days designated as paid holidays in accordance with the plans,
policies, programs and practices of the Company for its executive
officers. Unused vacation time shall carry over to the next year.
Any unused vacation time shall be paid in a cash lump sum payment
promptly after the Date of Termination, pursuant to
Section 4(a)(i).
(viii)
Stock Options . In addition to any benefits the Executive
may receive pursuant to paragraph 2(b)(iii), as may be determined
appropriate by the Board, the Company may, from time to time, grant
Executive stock options (the “ Executive
Options ”) exercisable for shares of capital stock of
the Company and, subject to the terms of this Agreement, such
Executive Options shall have such terms and provisions as may be
determined appropriate by the Board. On the Effective Date, the
Company will grant Executive Options in accordance with the terms
of Exhibit B hereto under the Company’s 2002
Stock Option Plan.
(ix)
Share Purchase . The Executive shall have the one time right
to purchase up to 250,000 shares of common stock of the Company for
a purchase price of $1.01 per share for a period of 30 days
following the Effective Date. Concurrently with the purchase of any
such shares the Executive agrees to execute a joinder to that
certain Stockholders Agreement dated as of September 19, 2002
by and among the Company and certain of its stockholders. Such
joinder shall provide that, notwithstanding anything else contained
in the Stockholders Agreement to the contrary, such shares shall be
treated as Management Group Shares (as defined in the Stockholders
Agreement) for the purposes of the Stockholders
Agreement.
3.
Termination of Employment .
(a)
Death or Disability . The Executive’s employment shall
terminate automatically upon the Executive’s death during the
Employment Period. If the Disability of the Executive has occurred
during the Employment Period (pursuant to the definition of
Disability set forth below), the Company may give to the Executive
written notice in accordance with Section 12(b) of its intention to
terminate the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the “ Disability Effective Date
”), provided that, within the 30 days after such
receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of this
Agreement, “ Disability ” shall mean the
Executive’s
3
inability to
perform his duties and obligations hereunder for a period of 180
consecutive days due to mental or physical incapacity as determined
by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive’s legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
(b)
Cause . The Company may terminate the Executive’s
employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, “ Cause ”
shall mean (i) the Executive’s willful failure to perform his
obligations under Section 2(a) (other than as a result of physical
or mental incapacity) which constitutes a breach by the Executive
of his obligations and duties thereunder, as reasonably determined
by the Board, which is not remedied within 30 days after
receipt of the written notice from the Board provided for in the
next sentence specifying such breach and that has caused
demonstrable and serious economic injury to the Company,
(ii) commission by the Executive of an act of fraud upon, or
willful misconduct toward, the Company, (iii) a material
breach by the Executive of Section 6 or Section 9 that
has caused demonstrable and serious economic injury to the Company,
(iv) the conviction of the Executive of any felony (or a plea
of nolo contendere thereto) that involves financial
misconduct or moral turpitude or that has resulted in any adverse
publicity regarding the Executive or the Company or economic injury
to the Company, or (v) the willful failure of the Executive to
carry out, or comply with, in any material respect any directive of
the Board consistent with the terms of this Agreement, which is not
remedied within 30 days after receipt of the written notice
from the Board provided for in the next sentence and that has
caused demonstrable and serious economic injury to the Company.
Notwithstanding the foregoing, no act or omission shall constitute
“Cause” for purposes of this Agreement unless a
majority of the disinterested members of the Board (neither the
Executive nor members of his family being deemed disinterested for
this purpose) provides Executive (x) written notice clearly
and fully describing the particular acts or omissions which the
Board reasonably believes in good faith constitutes
“Cause;” (y) an opportunity, within 30 days
following his receipt of such notice, to meet in person with the
Board to explain or defend the alleged acts or omissions relied
upon by the Board and, to the extent practicable, to cure such acts
or omissions; and (z) a copy of a resolution duly adopted by a
majority of disinterested members of the Board finding that in the
good faith opinion of the Board, Executive committed the alleged
acts or omissions and that they constitute grounds for Cause
hereunder. Further, no act or omission shall be considered willful
unless committed in bad faith or without a reasonable belief that
the act or omission was in the best interests of the Company. The
Executive shall have the right to contest a determination of Cause
by the Company by requesting arbitration in accordance with the
terms of Section 12(j) hereof.
For purposes of
this Agreement, “ without Cause ” shall
mean a termination by the Company of the Executive’s
employment during the Employment Period for any reason other than a
termination based upon Cause, death or Disability, including
pursuant to a Board Determination (as defined in
Section 4(b)).
(c)
Good Reason . The Executive’s employment may be
terminated during the Employment Period by the Executive for Good
Reason or without Good Reason; provided, however, that the
Executive agrees not to terminate his employment for Good Reason
unless (i) the Executive has given the Company at least
30 days’ prior written notice of his intent to terminate
his employment for Good Reason, which notice shall specify the
facts and
4
circumstances
constituting Good Reason, and (ii) the Company has not remedied
such facts and circumstances constituting Good Reason within such
30-day period. For purposes of this Agreement, “ Good
Reason ” shall mean:
(i) the
assignment to the Executive of any duties inconsistent in any
respect with the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 2(a) or any other
action by the Company which results in a material diminution in
such position, authority, duties or responsibilities, excluding for
this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive (without
limiting the foregoing, the Company and the Executive agree that
the delegation of the authority, duties or responsibilities of the
Executive to another person or persons, including any committee,
shall be deemed to be an action by the Company which results in a
material diminution in the Executive’s position, authority,
duties, or responsibilities as contemplated by Section 2(a)),
provided, however, that Good Reason may not be asserted by the
Executive under this clause (i) of Section 3(c) after a
Non-Renewal Notice has been given by either the Company or the
Executive;
(ii) any
termination or material reduction of a material benefit under any
Investment Plan or Welfare Plan in which the Executive participates
unless (1) there is substituted a comparable benefit that is
economically substantially equivalent to the terminated or reduced
benefit prior to such termination or reduction or (2) benefits
under such Investment Plan or Welfare Plan are terminated or
reduced with respect to all then serving senior executives of the
Company previously granted benefits thereunder;
(iii) any
failure by the Company to comply with any of the provisions of
Section 2(b), other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(iv) any
failure by the Company to comply with and satisfy
Section 8(c), provided that such successor has received at
least ten days prior written notice from the Company or the
Executive of the requirements of Section 8(c);
(v) the
relocation or transfer of the Executive’s principal office to
a location more than 20 miles from the Company’s current
executive offices as such are maintained on the date hereof in the
city of Greeley, Colorado unless such other location is within 50
miles of the city of Denver, Colorado;
(vi) without
limiting the generality of the foregoing, any material breach by
the Company or any of its subsidiaries or other affiliates (as
defined below) of (1) this Agreement or (2) any other
agreement between the Executive and the Company or any such
subsidiary or other affiliate, which material breach is not
remedied by the Company or such subsidiary or other affiliate
promptly after receipt of notice thereof given by the Executive;
or
(vii) the
Company has given the Executive a Non-Renewal Notice.
5
As used in this
Agreement, “ affiliate ” means, with
respect to a person, any other person controlling, controlled by or
under common control with the first person; the term “
control ,” and correlative terms, means the
power, whether by contract, equity ownership or otherwise, to
direct the policies or management of a person; and “
person ” means an individual, partnership,
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
(d)
Notice of Termination . Any termination by the Company for
Cause or without Cause, or by the Executive for Good Reason or
without Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with
Section 12(b). For purposes of this Agreement, a “
Notice of Termination ” means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment
under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of
such notice, specifies the termination date (which date shall not
be more than 15 days after the giving of such notice). The
failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the
Executive or the Company hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in enforcing the
Executive’s or the Company’s rights
hereunder.
(e)
Date of Termination . “ Date of
Termination ” means (i) if the Executive’s
employment is terminated by the Company for Cause, or by the
Executive for Good Reason or without Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein pursuant to Section 3(d), as the case may be,
(ii) if the Executive’s employment is terminated by the
Company other than for Cause, the date on which the Company
notifies the Executive of such termination or any later date
specified therein pursuant to Section 3(d), as the case may
be, (iii) if the Executive’s employment is terminated by
reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be, and
(iv) if the Executive’s employment terminates due to the
giving of a Non-Renewal Notice, the last day of the Employment
Period.
4.
Obligations of the Company upon Termination .
(a)
Good Reason; Other Than for Cause, Death or Disability . If,
during the Employment Period, the Company shall terminate the
Executive’s employment other than for either Cause or
Disability or the Executive shall terminate his employment for Good
Reason, and the termination of the Executive’s employment in
any case is not due to his death or Disability:
(i) The
Company shall pay to the Executive in a lump sum in cash within ten
days after the Date of Termination the aggregate of the following
amounts: (1) the sum of the Executive’s Annual Base
Salary through the Date of Termination to the extent not
theretofore paid and any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon)
and any accrued vacation pay (“ Accrued
Obligations ”); (2) an amount equal to two times
the Executive’s then current Annual Base Salary; (3) an
amount equal to the maximum annual Bonus (excluding any
“stretch” amounts as described on
Exhibit
6
A
) that the Executive could have
earned for the year in which the Date of Termination occurs
prorated for the portion of such year that the Executive is
employed and based with respect to any performance criteria on the
Company’s performance through the last day of the calendar
month immediately prior to the month in which the Date of
Termination occurs relative to the Company’s budget for such
period; and (4) any amount arising from Executive’s
participation in, or benefits under, any Investment Plans (“
Accrued Investments ”), which amounts shall be
payable in accordance with the terms and conditions of such
Investment Plans.
(ii) Except
as otherwise provided in Section 4(e), the Executive (and
members of his family) shall be entitled to continue their
participation in the Company’s Welfare Plans for a period of
12 months from the Date of Termination. This period shall be
credited against any period for which the Executive and/or members
of his family are entitled to continuation coverage under Section
4980B of the Internal Revenue Code of 1986, as amended, and
Sections 601-609 of the Employee Retirement Income Security
Act of 1974, as amended.
(iii) Notwithstanding
the terms or conditions of any Executive Option or any other stock
option grants, stock appreciation right or similar agreements
between the Company and the Executive, the Executive shall vest, as
of the Date of Termination, in all rights under such agreements
(i.e., Executive Options that would otherwise vest after the Date
of Termination) and thereafter shall be permitted to exercise, in
accordance with the terms of the Executive Options, any and all
such rights until the earlier of (w) the date the Option would
otherwise expire in accordance with its terms, (x) if the Date
of Termination is prior to a Qualifying Public Offering (as defined
in that certain Stock Option Agreement of even date herewith
between the Company and Executive), the 270th day after a
Qualifying Public Offering, (y) if the Date of Termination is
after a Qualifying Public Offering, the 90th day after the Date of
Termination, or (z) the 90th day after the completion of a
merger, combination, share exchange or similar transaction
involving the Company pursuant to which the securities for which
the Option is then exercisable are listed on a national securities
exchange or the Nasdaq National Market System or any successor
thereto; provided, however, the provisions of this clause
(iii) of this Section 4(a) shall not apply to a termination of
the Executive’s employment during the Employment Period that
is made by the Company pursuant to a Board
Determination.
(b)
Board Determination . If the Executive’s employment is
terminated by the Company pursuant to a Board Determination during
the Employment Period, the Executive shall be entitled to receive
the benefits specified in Sections 4(a)(i) and 4(a)(ii) of
this Agreement. Further, notwithstanding the terms or conditions of
any Executive Option, stock appreciation rights or similar
agreement between the Executive and the Company, all unvested
Executive Options and unvested stock appreciation rights or similar
agreements shall be forfeited and the Executive shall not vest, as
of the Date of Termination or otherwise, in any rights under such
unvested Executive Options, stock appreciation rights or similar
agreements that are unvested immediately prior to the Date of
Termination, and thereafter shall be permitted to exercise, in
accordance with the terms of the Executive Options, only those
rights that were otherwise vested immediately prior to the Date of
Termination until the earlier of (w) the date the Option would
otherwise expire in accordance with its terms, (x) if the Date
of Termination is prior to a Qualifying Public Offering, the 270th
day after a Qualifying Public Offering, (y) if the Date of
Termination is after a Qualifying Public Offering, the 90th day
after the Date of Termination, or (z) the 90th day after the
completion of a merger, combination, share exchange or
similar
7
transaction
involving the Company pursuant to which the securities for which
the Option is then exercisable are listed on a national securities
exchange or the Nasdaq National Market System or any successor
thereto. For purposes of this Agreement, a “ Board
Determination ” means a determination by the Board
(excluding the Executive) (which is evidenced by one or more
written resolutions of the Board to such effect), (i) to terminate
the Executive’s employment during the Employment Period based
upon the Board’s dissatisfaction with the manner in which the
Executive has performed his obligations and duties under Section
2(a) and (ii) that Cause does not exist as a basis for such
termination.
(c)
Death or Disability . If the Executive’s employment is
terminated by reason of the Executive’s death or Disability
during the Employment Period, the Company shall pay to his legal
representatives (i) in a lump sum in cash within ten days
after the Date of Termination the aggregate of the following
amounts: (A) an amount equal to the Executive’s then
current Annual Base Salary; and (B) the Accrued Obligations;
and (ii) the Accrued Investments which shall be payable in
accordance with the terms and conditions of the Investment Plans.
In addition, the members of the Executive’s family shall be
entitled to continue their participation in the Company’s
Welfare Plans for a period of 12 months after the Date of
Termination. Further, notwithstanding the terms or conditions of
any Executive Option, stock appreciation right or similar
agreements between the Company and the Executive, the Executive
shall vest, as of the Date of Termination, in all rights under such
agreements (i.e., Executive Options that would otherwise vest after
the Date of Termination) and thereafter his legal representative
shall be permitted to exercise, in accordance with the terms of the
Executive Options, any and all such rights until the earlier of
(w) the date the Option would otherwise expire in accordance
with its terms, (x) if the Date of Termination is prior to a
Qualifying Public Offering, the 270th day after a Qualifying Public
Offering, (y) if the Date of Termination is after a Qualifying
Public Offering, the 90th day after the Date of Termination, or
(z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the
Company pursuant to which the securities for which the Option is
then exercisable are listed on a national securities exchange or
the Nasdaq National Market System or any successor thereto. The
Company shall have no further payment obligations to the Executive
or his legal representatives under this Agreement.
(d)
Cause; Other than for Good Reason . If the Executive’s
employment shall be terminated by the Company for Cause or by the
Executive without Good Reason during the Employment Period, the
Company shall have no further payment obligations to the Executive
other than for payment of Accrued Obligations, Accrued Investments
(which shall be payable in accordance with the terms and conditions
of the Investment Plans), and the continuance of benefits under the
Welfare Plans to the Date of Termination (or later to the extent
required by law). Further, notwithstanding the terms or conditions
of any Executive Option, stock appreciation rights or similar
agreement between the Executive and the Company, all unvested
Executive Options and unvested stock appreciation rights or similar
agreements shall be forfeited and the Executive shall not vest, as
of the Date of Termination or otherwise, in any rights under such
Executive Options, stock appreciation rights or similar agreements
that are unvested immediately prior to the Date of Termination and
thereafter shall be permitted to exercise, in accordance with the
terms of the Executive Options, only those rights that were
otherwise vested immediately prior to the Date of Termination until
the earlier of (w) the date the Option would otherwise expire
in accordance with its terms, (x) if the Date of Termination
is prior to a
8
Qualifying
Public Offering, the 270th day after a Qualifying Public Offering,
(y) if the Date of Termination is after a Qualifying Public
Offering, the 90th day after the Date of Termination, or
(z) the 90th day after the completion of a merger,
combination, share exchange or similar transaction involving the
Company pursuant to which the securities for which this Option is
then exercisable are listed on a national securities exchange or
the Nasdaq National Market System or any successor
thereto.
(e)
Welfare Plans . If pursuant to the terms and provisions of
the Company’s Welfare Plans the Executive (or members of his
family) are not eligible to participate in the Company’s
Welfare Plans because the Executive is no longer an employee of the
Company, then the Company may fulfill its obligations under
Section 4(a)(ii), Section 4(b) or Section 4(c), as
applicable, by either providing to the Executive (or his legal
representatives), or reimbursing the Executive (or his legal
representatives) for the costs of, benefits substantially similar
to the benefits provided by the Company to its senior management
under its Welfare Plans as such may from time to time exist after
the Date of Termination.
(f)
Breach for Early Termination . During the first
180 days of the Employment Period, it shall be a breach of
this Agreement for the Company to terminate the Executive’s
employment without Cause or for the Executive to terminate his
employment without Good Reason. In the event of any purported
termination in violation of this Section 4(f), the
non-terminating party shall be entitled to all damages and other
remedies available at law with respect to such breach.
(g)
Release . Notwithstanding the foregoing, the Executive is
entitled to receive the payments under Section 4(a)(i)(2) and
the benefits of Section 4(a)(iii) of this Agreement only in
exchange for his execution and non-revocation (and lapse of time
during which such revocation may occur) of a release in
substantially the same form as attached hereto as
Exhibit C .
5.
Full Settlement, Mitigation . In no event shall the
Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other
employment. Except as expressly provided in Section 4(f),
neither the Executive nor the Company shall be liable to the other
party for any damages in addition to the amounts payable under
Section 4 arising out of the termination of the
Executive’s employment prior to the end of the Employment
Period; provided, however, that the Company shall be entitled to
seek damages for any breach of Sections 6, 7 or 9 or criminal
misconduct.
6.
Confidential Information .
(a) The
Executive acknowledges that the Company and its affiliates have
trade, business and financial secrets and other confidential and
proprietary information (collectively, the “
Confidential Information ”) of which Executive
will become aware during the Employment Period. As defined herein,
Confidential Information shall not include information
(i) that becomes generally available to the public other than
as a result of a disclosure by Executive, (ii) that is
rightfully available to Executive on a non-confidential basis from
a source other than the Company (provided such source was not bound
by a confidentiality
9
agreement with
the Company or otherwise prohibited from transmitting the
information to Executive by a contractual, legal, or fiduciary
obligation), or (iii) that is required to be disclosed by the
Executive pursuant to a subpoena or court order, or 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 the
Executive shall take all reasonable steps to prohibit disclosure
pursuant to subsection (iii) above.
(b) The
Company shall, during the time that the Executive is employed by
the Company, disclose or entrust to the Executive, or provide the
Executive with access to, or place Executive in a position to
create or develop trade secrets or confidential information
belonging to the Company or its customers or clients; place the
Executive in a position to develop business goodwill belonging to
the Company; and disclose or entrust to the Executive business
opportunities to be developed for Company or its customers or
clients.
(c) The
Executive agrees (i) to hold the Confidential Information in
confidence and (ii) not to release such information to any
person (other than Company employees and other persons to whom the
Company has authorized the Executive to disclose such information
and then only to the extent that such Company employees and other
persons authorized by the Company have a need for such
knowledge).
(d) The
Executive further agrees not to use any Confidential Information
for the benefit of any person or entity other than the
Company.
(e) As
used in this Section 6, “ Company ”
shall include the Company and any of its direct or
indirect
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