THIRD AMENDMENT TO EXECUTIVE
EMPLOYMENT AGREEMENT
THIS THIRD
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this
“Amendment”) is made and entered into as of
September 19, 2006, by and among Swift Foods Company, a
Delaware corporation (the “Company”), and Dennis Henley
(“Executive”).
WHEREAS, the
Company and Executive are parties to the Executive Employment
Agreement, dated May 20, 2002, as amended by that certain
First Amendment to Executive Employment Agreement, dated
July 12, 2002, and that certain Second Amendment to Executive
Employment Agreement, dated November 3, 2004, (as so amended, the
“Employment Agreement”);
WHEREAS,
capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Employment Agreement;
and
WHEREAS, because
the parties have mutually determined that the terms of
Executive’s employment with the Company and its affiliates
should be modified, the Employment Agreement is being amended to
reflect certain agreements regarding such modification and
Executive’s ongoing role with the Company.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1.
Transition Period; Termination of Employment . The parties
hereby represent and warrant that prior to the date hereof,
Executive’s employment relationship with the Company and its
affiliates was pursuant to and governed solely by the Employment
Agreement. In consideration of the benefits to be received by
Executive pursuant to the terms of this Amendment, Executive agrees
to continue to serve as the Chief Operating Officer — North
America and to perform the duties associated with such position as
provided in the Employment Agreement in accordance with provisions
of the Employment Agreement from the date hereof until
September 18, 2007. From and after September 19, 2007,
Executive agrees to be employed as a consultant and advisor to the
Company’s Chief Executive Officer, or his designee, providing
consulting and advisory services concerning all aspects of the
Company’s business, including but not limited to, consulting
regarding operational matters, employee relations and strategic
planning (the “Consulting Services”) (a) which shall
include approximately 50 days of service, as requested by the
Company from time to time, from September 19, 2007 until
September 18, 2008, and (b) which shall include
approximately 30 days of service annually, as requested by the
Company from time to time, from September 19, 2008 until
September 19, 2010 (such date, the “Termination
Date”). Executive shall continue to be an employee of the
Company during the period in which he is providing the Consulting
Services (the “Consulting Period”). Unless otherwise
specifically authorized by this Amendment or any other agreement
between the Company and Executive, during the Consulting Period,
Executive shall have no authority to transact any business or make
any representations or promises in the name of the
Company or its
affiliates and shall not hold himself out to be an officer or
senior executive of the Company. In addition, effective as of
September 18, 2007, any and all of Executive’s other
appointments and positions (including positions as a director) that
he may hold with the Company or any of its affiliates shall be
terminated. Executive agrees to execute all further documents that
the Company may reasonably request of him to effectuate such
terminations.
2.
Transition Consideration . In consideration of
Executive’s agreement to continue to serve as Chief Operating
Officer — North America until September 18, 2007, to
provide the Consulting Services to the Company thereafter until the
Termination Date in accordance with paragraph 1, and
Executive’s execution and delivery of the Release described
in Section 5(a), the Company shall cause to be paid to
Executive the following consideration:
(a) Executive
shall continue to be paid (i) his current Annual Base Salary
in accordance with the customary payroll practices of the Company
until September 18, 2008, and shall continue to be eligible to
receive his full annual Bonus for the Company’s 2008 fiscal
year during such period and (ii) an amount equal to $300,000
as an Annual Base Salary to be paid in accordance with the
customary payroll practices of the Company for the period beginning
on September 19, 2008 and ending on the Termination
Date.
(b) Except
as provided in the following sentence, until the Termination Date,
Executive shall continue to be entitled to receive, or participate
in, as applicable, all elements and items of compensation set forth
in subparagraph 2(b) of the Employment Agreement, including without
limitation, all Investment Plans, Welfare Plans, perquisites,
vacation days (which shall be 30 days of vacation for the
years ended September 19, 2006 and September 19, 2007)
and expense reimbursement, except that after September 19,
2008 (x) Executive shall not be eligible to receive any
Bonuses under subparagraph 2(b)(ii) or to any vacation days and
(y) the Annual Base Salary shall be paid in the manner set
forth in subparagraph 2(a) above. The period from
September 19, 2007 until the Termination Date shall not be
credited against any period for which 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.
3.
Termination Consideration . In connection with
Executive’s termination of employment and, with respect to
clause (a), the execution and delivery of the Release described in
Section 5(b), the Company shall cause to be paid to Executive the
following consideration:
(a) an
amount equal to the full amount of the Accrued Obligations,
including any compensation for accrued vacation days not used on or
before September 19, 2008, by the close of business on the
third business day following the Reaffirmation Date;
(b) an
amount equal to the Accrued Investments, payable in accordance with
the terms and conditions of the Investment Plans; and
(c) an
amount equal to the premiums payable with respect to the
Executive’s COBRA continuation coverage for the period
beginning September 19, 2010 and ending on September 30,
2011 by the close of business on the third business day following
the Reaffirmation Date, in each case less any applicable
withholding and other deductions.
2
4. Taxes
. The payments to Executive hereunder shall be subject to
applicable federal, state and local withholding taxes. Executive
agrees that, to the extent that any individual federal or state
taxes of any kind may be due as a result of any such payment to
Executive, Executive shall be solely responsible for such taxes and
will indemnify, defend, and hold harmless the Company in the event
there is any claim against the Company for such taxes.
(a) The
Company’s obligations under paragraph 2(a) are subject to the
execution, delivery and non-revocation of a general release in the
form attached as Exhibit A (the
“Release”).
(b) The
Company’s obligations under paragraph 3(a) are subject to the
execution, delivery and non-revocation of a general release in the
form attached as Exhibit B (the “Termination
Release”).
6.
Cooperation . Executive agrees to cooperate with the Company
as reasonably requested by the Company by responding to questions,
attending depositions, administrative proceedings and court
hearings, executing documents, and cooperating with the Company and
its accountants and legal counsel with respect to legal and
intellectual property matters, business issues, and/or claims,
administrative or arbitral proceedings and litigation of which he
has or is believed to have personal or corporate knowledge.
Executive further agrees, except as required by subpoena or other
applicable legal process (after the Company has been given
reasonable notice and opportunity to seek relief from such subpoena
or other legal process), to maintain, in strict confidence, any
information of which he has knowledge regarding current and/or
future claims, administrative or arbitral proceedings and
litigation. Executive agrees, except as required by subpoena or
other applicable legal process (after the Company has been given
reasonable notice and opportunity to seek relief from such
requirement), not to communicate with any party(ies), their legal
counsel or others adverse to the Company in any such claims,
administrative or arbitral proceedings or litigation except through
the Company’s designated legal counsel. Executive also shall
make himself available at reasonable times and upon reasonable
notice to answer questions or provide other information within his
possession and requested by the Company relating to the Company,
its affiliates and/or their respective operations in order to
facilitate the smooth transition of Executive’s duties to his
successor.
7.
Termination of Consulting Arrangement . Notwithstanding any
contrary provision contained elsewhere in this Amendment, the
consulting arrangement between the Company and Executive created by
paragraph 1 shall terminate automatically upon the death of
Executive ; provided , however , that
termination of the consulting arrangement shall not affect the
duties and obligations set forth in the other sections of this
Amendment or the applicable sections of the Employment Agreement,
including, without limitation, paragraph 2 of this
Amendment.
8.
Non-Disparagement . Executive and the Company each agrees to
refrain from engaging in any conduct, or from making any comments
or statements, that have the purpose or effect of harming the
reputation or goodwill of Executive, on the one hand, or the
Company or any of its affiliates on the other hand.
3
9.
Injunctive Relief . Executive hereby expressly acknowledges
that any breach or threatened breach by him of any of his
obligations set forth in paragraphs 7 and 9 of this Amendment and
paragraphs 6 and 8 of the Employment Agreement may result in
significant and continuing injury and irreparable harm to the
Company, the monetary value of which would be impossible to
establish. Therefore, Executive agrees that the Company shall be
entitled to injunctive relief in a court of appropriate
jurisdiction with respect to such provisions. Such injunctive
remedies shall not be deemed the exclusive remedies, but shall be
in addition to all remedies available at law or in equity to the
Company, including, without limitation, the recovery of damages
from Executive and Executive’s agents. Further, if Executive
violates the covenants and restrictions herein and the Company
brings legal action for injunctive or other equitable relief,
Executive agrees that the Company shall not be deprived of the
benefit of the full period of the restrictive covenant, as a result
of the time involved in obtaining such relief. Accordingly,
Executive agrees that the provisions in this paragraph shall have a
duration determined pursuant to paragraph 9 of the Employment
Agreement, computed from the date the relief is granted. Executive
also hereby waives any requirement for the securing or posting of
any bond in connection with the obtaining of any such equitable
relief. The parties further agree that this provision is a material
inducement to the Company to enter into this Amendment.
10. Mail
. The Company may open and answer, and authorize others to open and
answer, all mail communications and other correspondence addressed
to Executive relating to the Company or any of its affiliates or to
Executive’s employment with the Company or any of its
affiliates, and Executive shall promptly refer to the Company all
inquiries, mail communications, and correspondence received by him
relating to the Company or any of its affiliates or to
Executive’s employment with the Company or any of its
affiliates. If any such mail, communications or correspondence
received by the Company includes any threat of any claim against
Executive personally, the Company shall promptly notify Executive
thereof. The Company will promptly forward to Executive any of
Executive’s personal mail, communications or correspondence
received by the Company, unopened to the extent it is reasonably
ascertained to be of a personal nature.
11.
Indemnification . EXECUTIVE AGREES, WARRANTS, AND REPRESENTS
TO THE COMPANY THAT EXECUTIVE HAS FULL EXPRESS AUTHORITY TO RELEASE
AND SETTLE ALL CLAIMS THAT ARE THE SUBJECT OF THE RELEASES ATTACHED
AS EXHIBITS A AND B OF THIS AMENDMENT AND THAT EXECUTIVE HAS
NOT GIVEN OR MADE AND WILL NOT GIVE OR MAKE ANY ASSIGNMENT TO
ANYONE, INCLUDING EXECUTIVE’S FAMILY OR LEGAL C
|
