Amendment to Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K/A Amendment to Annual Report 56± 243K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 8± 33K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 8± 34K
4: EX-4.8 Instrument Defining the Rights of Security Holders 53± 222K
5: EX-4.9 Instrument Defining the Rights of Security Holders 20± 88K
6: EX-10.18 Material Contract 8± 41K
7: EX-10.20 Material Contract 6± 29K
8: EX-10.35 Material Contract 16± 65K
9: EX-10.36 Material Contract 62± 291K
10: EX-11.1 Statement re: Computation of Earnings Per Share 2± 14K
11: EX-21.1 Subsidiaries of the Registrant 1 7K
12: EX-23.1 Consent of Experts or Counsel 1 7K
EX-10.20 — Material Contract
Exhibit 10.20
SETTLEMENT AGREEMENT
This Settlement Agreement is entered into on the 6th day of
July, 1993, by and between Theodore A. Myers, an individual
residing in the State of Illinois ("Executive") and Doskocil
Companies Incorporated, a Delaware corporation (the "Company").
WHEREAS, Executive and the Company entered into an employment
agreement, dated as of November 1, 1991 (the "Employment
Agreement"); and
WHEREAS, the Employment Agreement provided, among other
things, for the payment of certain consideration to Executive in
the event his employment with the Company was terminated; and
WHEREAS, the Company and the Executive have agreed that
Executive's employment with the Company will be terminated
effective as of the date hereof; and
WHEREAS, Executive had previously been granted seventeen
thousand five hundred (17,500) shares of restricted stock of the
Company ("Restricted Stock") and seventeen thousand five hundred
(17,500) performance shares of the Company ("Performance Shares")
(the Restricted Stock and the Performance Shares, together with any
additional shares which may have accrued to Executive's benefit as
a result of stock dividends, stock splits or otherwise, are
referred to herein as the "Equity Shares") pursuant to the
Company's 1992 Stock Incentive Plan (the "Incentive Plan")
established and administered by the Company for certain of its
senior executives; and
WHEREAS, Executive had previously been granted options to
purchase 18,000 shares of common stock of the Company (the "Stock
Options") pursuant to the Incentive Plan; and
WHEREAS, Executive and the Company have negotiated and agreed
to a final settlement of their respective rights, obligations and
liabilities under the Employment Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Executive
and the Company hereby agree as follows:
1. On the date hereof (such date being referred to herein as
the "Settlement Date") and subject to such income tax, social
security tax and other payroll tax withholding requirements which
may be necessary under applicable law, the Company shall pay
Executive a lump sum cash payment of no less than Four Hundred
Fifty Two Thousand Seven Hundred Twelve Dollars ($452,712.00) (the
"Settlement"), which payment shall be comprised of the following
amounts:
(a) Four Hundred Twenty-One Thousand Eight Hundred
Seventy-Four Dollars ($421,874), representing the present value of
the unpaid portion of Executive's compensation as set forth in
Section 3 of the Employment Agreement;
(b) Twenty-One Thousand Three Hundred Seven Dollars
($21,307), representing the present value of Executive's automobile
and club allowances as set forth in Section 8 of the Employment
Agreement through December 31, 1994 had Executive remained employed
by the Company; and
(c) Nine Thousand Five Hundred Thirty One Dollars
($9,531.00), representing the present value of amounts the Company
would have contributed to the Doskocil 401(k) Plan on behalf of
Executive through December 31, 1994 had Executive remained employed
by the Company.
In addition to the payments described in subparagraphs (a),
(b) and (c) above, if the relevant performance objectives described
in the Doskocil Companies Incorporated Annual Incentive Plan (the
"Annual Incentive Plan") shall be met with respect to the 1993
fiscal year of the Company, then Executive shall be entitled to
receive, at the time incentive bonuses would ordinarily be paid to
participants in the Annual Incentive Plan with respect to the 1993
plan year, a pro rated incentive bonus equal to one-half of the
amount of the incentive bonus which would have otherwise been
payable to the Executive for such year under the terms and
provisions of the Annual Incentive Plan.
Executive shall also be entitled upon presentation of
appropriate expense statements or receipts, to reimbursement for
the reasonable amount of any business expenses reasonably incurred
by the Executive prior to the Settlement Date in accordance with
the Employment Agreement, and for the reasonable amount of any
moving expenses incurred by Executive in moving his personal
belongings back to the Chicago metropolitan area. Notwithstanding
the foregoing, the amount of reimbursement for such moving expenses
shall not exceed Three Thousand Dollars ($3,000.00).
Executive shall also be entitled for the period beginning on
the Settlement Date and ending on December 31, 1994, to financial
counselling services, at the expense of the Company, to the same
extent provided under the plan for such benefits in existence as of
the Settlement Date, and to continue participation in insurance
plans and programs (excluding life insurance plans) in which, and
to the extent that, he was participating immediately prior to the
Settlement Date pursuant to Section 4 of the Employment Agreement.
As soon as reasonably practicable following the Settlement Date,
Executive and the Company shall cooperate in good faith and use
their best efforts to obtain for Executive a term life insurance
policy owned by Executive which insures the life of Executive at a
death benefit equal to at least $745,000. The Company, for the
period commencing on the Settlement Date and ending on December 31,
1994, shall pay forty percent (40%) (the "Company Portion") of the
premiums for such policy. If Executive is unable to obtain such a
policy at premiums not exceeding an annual rate of $23.10 per
$1,000 of death benefit, then the Company shall pay Executive an
amount equal to the present value of forty percent (40%) of the
premiums payable over a period of 18 months on a rated term life
insurance policy providing a death benefit of at least $745,000,
such premiums not to exceed $23.10 per $1,000 of death benefit.
2. Effective as of the Settlement Date, all funds in
Executive's account under the Doskocil 401(k) Plan, together with
all earnings accrued and allocable with respect thereto, shall at
the direction of Executive to the extent provided in the Plan
document, either remain in the Doskocil 401(k) Plan, be distributed
to Executive or be transferred to a qualified tax-deferred
investment plan designated by Executive.
3. Effective as of the Settlement Date, all previously
granted but unvested Stock Options shall become fully vested and
exercisable in accordance with the terms of the stock option
agreement granting such Stock Options. In addition, on August 2,
1993, all unvested Equity Shares shall become fully vested in the
Employee. Notwithstanding the foregoing, the Executive
acknowledges and reaffirms his prior agreement that no "Change of
Control" has occurred for purposes of accelerating the vesting of
such Stock Options or Equity Shares. The Executive hereby agrees
to provide the Company, as of the vesting date of the Equity
Shares, with the amount of cash necessary to satisfy the income tax
withholding obligation with respect to the vesting of such Equity
Shares. Such amount shall, at the option of Executive, be
delivered to the Company in cash, by delivery of a certified check
or by subtracting such amount from the amount otherwise payable
under Paragraph 1 hereof. Alternatively, under a procedure which
is mutually agreed upon by the parties, Executive may direct the
Company to satisfy such withholding obligation by disposing of some
of the Equity Shares.
4. In the event Executive is notified by the Internal Revenue
Service ("IRS") of the IRS' intention to audit any of Executive's
tax returns reflecting the payments described in paragraph 1 or the
acceleration of vesting described in paragraph 3, Executive shall
notify the Company and shall provide to the Company (a) a copy of
the tax return(s) in issue and (b) any communications(s) reflecting
the scope of the intended audit.
Upon receipt of such notice from Executive, the Company shall
undertake to provide to Executive such legal and/or accounting
representation (as selected by the Company in its sole discretion)
as Executive may require with respect to such items and to
indemnify Executive for and hold him harmless against any
reasonable expenses (but not taxes, interest or penalties) incurred
by Executive in the course of such audit. Such indemnification
shall include, but not be limited to, any reasonable out-of-pocket
expenses incurred by Executive in the course of preparation for
and/or participation in the audit, but shall not include any taxes,
interest or penalties. Executive shall be responsible for the cost
of such representation to the extent any such audit involves issues
not related to the items described in Paragraph 1 or 3. Executive
shall provide reasonable assistance to the Company in defending him
in the audit as may be requested by the Company, agrees that he
will take reasonable steps to ensure that his personal legal and/or
accounting representatives (as described below) will cooperate with
such representatives as selected hereunder by the Company, and
shall submit to the Company periodically, a statement of expenses
incurred, which statement shall be promptly paid by the Company.
In the event that the scope of the audit includes items other
than the items described in paragraph 1 or 3 above, Executive shall
have the right to retain his own legal and/or accounting
representatives, at Executive's expense, and the Company agrees (a)
that it shall take all reasonable steps to ensure that the legal
and/or accounting representatives provided to Executive by the
Company shall fully cooperate with those retained by Executive and
(b) that the legal and/or accounting representatives provided to
Executive by the Company shall not compromise or offer to
compromise any claim without the consent of Executive or his legal
and/or accounting representatives, which consent shall not
unreasonably be withheld.
5. The Company on its own behalf and on behalf of its
predecessors, successors and assigns, releases, remises and forever
discharges the Executive for himself, his heirs, executors,
administrators, legal representatives, successors and assigns, from
and against any and all claims, cross-claims, third party claims,
counterclaims, contribution claims, indemnity claims, debts,
demands, actions, promises, judgments, trespasses, extents,
executions, causes of action, suits, accounts, covenants, sums of
money, dues, reckonings, bonds, bills, liens, attachments, trustee
process, specialties, contracts, controversies, agreements,
promises, damages and all other claims of every kind and nature in
law, equity, arbitration, or other forum which the Company now has
or ever has had up to and including the date of this Settlement
Agreement, whether absolute or contingent, direct or indirect,
known or unknown.
6. In consideration of the fulfillment of the agreements set
forth in paragraphs 1, 2 and 3 above and subject to the collection
of funds for payments pursuant to paragraph 1 that are made by
check, Executive releases, remises and forever discharges the
Company, its legal representatives, successors and assigns, past,
present and future directors, officers, employees, trustees,
shareholders and affiliates from and against any and all claims,
cross-claims, third-party claims, counterclaims, contribution
claims, debts, demands, actions, promises, judgments, trespasses,
extents, executions, causes of action, suits, accounts, covenants,
sums of money, dues, reckonings, bonds, bills, liens, attachments,
trustee process, specialties, contracts, controversies, agreements,
promises, damages, and all other claims of every kind and nature in
law, equity, arbitration, or other forum which Executive now has or
ever has had up to and including the date of this Settlement
Agreement, whether absolute or contingent, direct or indirect,
known or unknown, except that nothing herein shall be deemed to
release, remise or discharge the Company from any claims arising
out of, related to or asserted under this Settlement Agreement.
7. In the event the Company fails to make any of the
payments set forth in paragraph 1(a), (b) or (c) hereof, as such
payments become due, they shall accrue interest from such due date
at the rate of 7% per annum.
8. The Company shall continue to indemnify Executive and
hold Executive harmless from any liability or expenses Executive
may incur with respect to his duties as an officer or director of
the Company through the Settlement Date to the same extent as if
Executive had continued to be an executive officer or director of
the Company.
9. Except as set forth above and except with respect to the
confidentiality provisions set forth in Section 10 of the
Employment Agreement (which expressly survive the termination of
Executive' s employment), the Employment Agreement shall be deemed
terminated as of the Settlement Date, and Executive shall not be
subject to the non-competition provisions of Section 9 thereof.
The parties hereby waive any notice requirements in connection with
the termination of the Employment Agreement.
10. By execution of this document and contingent upon the
payment of the amounts described in paragraph 1 hereof, Executive
hereby resigns as an officer and/or director of the Company and any
and all of its subsidiaries, effective as of the Settlement Date.
11. This Settlement Agreement constitutes the entire
understanding between Executive and the Company on all matters
relevant hereto. There are no representations, understandings or
agreements of any nature or kind whatsoever, oral or written,
regarding anything which is not included herein.
12. No supplement, modification, change or waiver of this
Settlement Agreement or any provision hereof shall be binding
unless executed in writing by Executive and the Company evidencing
their intent to be bound thereby. No waiver of any of the
provisions of this Settlement Agreement shall constitute a waiver
of any other provisions (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly
provided.
13. This Settlement Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns.
14. This Settlement Agreement shall be governed by, and
construed in accordance with, the laws of the State of Kansas,
without regard to its principles of conflicts of laws.
15. Any provision of this Settlement Agreement which is
prohibited or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
16. This Settlement Agreement may be executed in
counterparts, each of which will be deemed to be an original and
all of which taken together will constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Settlement Agreement personally or through their duly authorized
representative on the date hereof.
THEODORE A. MYERS
Theodore A. Myers
DOSKOCIL COMPANIES INCORPORATED
(William L. Brady)
By: William L. Brady
Title: Vice President and Controller
Dates Referenced Herein and Documents Incorporated by Reference
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