Employment Agreement - American Seafoods Corp., American Seafoods Group LLC and Brad Bodenman
FORM OF AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") made and
entered into as of the [ ] day of ______________ 2003, among American Seafoods
Corporation, a Delaware corporation("ASC"), American Seafoods Group LLC, a
Delaware limited liability company (the "Company" and, collectively with ASC,
"Employer") and Brad Bodenman who resides at 3607 11/th/ Avenue NW Gig Harbor,
WA 98335 ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, American Seafoods, L.P., a Delaware limited partnership, the
Company and Executive previously entered into an Employment Agreement (the
"Prior Employment Agreement"), dated as of March 18, 2002 (the "Effective
Date");
WHEREAS, ASC is proposing to register and offer for sale Income Deposit
Securities (the "IDS Offering");
WHEREAS, in connection with the IDS Offering, American Seafoods Holdings,
LLC, the direct owner of the Company, will become American Seafoods Holdings,
L.P., a Delaware limited partnership ("Holdings");
WHEREAS, following the consummation of the IDS Offering, ASC will own a
majority of the outstanding equity interests in Holdings, and will be the sole
general partner of Holdings; and
WHEREAS, in connection with the IDS Offering and changes in the ownership
structure of Holdings, Group and Executive wish to amend and restate the Prior
Employment Agreement in its entirety to take effect as of the date the Form S-1
registration statement filed with the U.S. Securities Exchange Commission, in
connection with the IDS Offering, is first declared effective (the "Amendment
Date");
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto agree that the Prior Employment Agreement is hereby amended and restated
as follows, effective as of the Amendment Date:
1. Employment Term. Employer agrees to employ Executive, and Executive
agrees to be so employed, for a term commencing on the date hereof and ending on
March 18, 2005 (the "Initial Term"); provided, however, that, notwithstanding
anything to the contrary set forth in this Agreement, this Agreement may be
earlier terminated pursuant to the terms hereof. The term of this Agreement will
automatically extend past
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the Initial Term for succeeding periods of one year each unless either party
terminates this Agreement as of the end of the Initial Term, or as of the end of
any subsequent one-year period (in either case, the "Termination Date"), by
delivering notice to the other party specifying the applicable Termination Date
not earlier than 180 days and not later than 120 days prior to the date so
specified. "Employment Term" as used herein shall mean the term of this
Agreement including any automatic extensions pursuant to the preceding sentence.
2. Position and Duties. Executive shall (in accordance with Section 11
hereof) diligently and conscientiously devote his full business time, attention,
energy, skill and best efforts to the business of Employer and the discharge of
his duties hereunder. Executive's duties under this Agreement shall be to serve
as Chief Financial Officer and Treasurer of ASC and the Company, with the
responsibilities, rights, authority and duties customarily pertaining to such
office and as may be established from time to time by or under the direction of
the board of directors of ASC or any similar governing body of the Company (in
any such case, "Board") or its designees, and Executive shall also act as an
officer and/or director and/or manager of such direct or indirect subsidiaries
of ASC or Holdings as may be designated by the Board, commensurate with
Executive's office hereunder, all without further compensation, other than as
provided in this Agreement.
3. Compensation.
(a) Base Salary. Employer shall pay to Executive base salary compensation
at an annual rate of $185,000. The Board shall review Executive's base salary
annually in light of the performance of Executive and the Company, and may, in
its sole discretion, increase or decrease (but not decrease below $185,000) such
base salary by an amount it determines to be appropriate. Executive's annual
base salary payable hereunder, as it may be increased or decreased from time to
time, is referred to herein as "Base Salary." Base Salary shall be paid in equal
installments in accordance with Employer's payroll practices in effect from time
to time for executive officers, but in no event less frequently than monthly.
(b) Bonus. In addition to Base Salary, Executive may receive an annual
bonus of an amount to be determined by the Board in its sole discretion, taking
into consideration individual and corporate performance. Further, Executive
shall be entitled to receive with respect to each fiscal year during the
Employment Term a nondiscretionary annual bonus if the EBITDA (as defined on
Schedule I hereto) of Holdings and its subsidiaries in such fiscal year exceeds
certain targets. The amount and calculation of such bonus are described with
particularity on Schedule I hereto. In no event will (i) the nondiscretionary
bonus be payable if at the time of payment or at any time during the year of
measurement ASC, Holdings or the Company was in default under any credit
agreement relating to indebtedness for borrowed money or (ii) the
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annual bonus (including discretionary and nondiscretionary portions thereof) in
any year exceed 150% of Executive's Base Salary. The annual bonus with respect
to any year, if any shall be paid within 30 days after the receipt by the Board
of audited financial statements for Holdings and its subsidiaries for the
pertinent year.
4. Benefits. Executive shall be eligible to participate in all employee
benefit programs of Employer offered from time to time during the term of
Executive's employment hereunder by Employer to employees or executives of
Executive's rank, to the extent that Executive qualifies under the eligibility
provisions of the applicable plan or plans, in each case consistent with
Employer's then-current practice as approved by the Board from time to time. The
foregoing shall not be construed to require Employer to establish such plans or
to prevent the modification or termination of such plans once established, and
no such action or failure thereof shall affect this Agreement. Executive
recognizes that Employer and its affiliates have the right, in their sole
discretion, to amend, modify or terminate their benefit plans without creating
any rights in Executive.
5. Vacation. Executive shall be entitled to up to four weeks of paid
vacation per calendar year. A maximum of one week of vacation time may be
carried over from one calendar year and into the following calendar year.
6. Business Expenses. To the extent that Executive's reasonable and
necessary expenditures for travel, entertainment and similar items made in
furtherance of Executive's duties under this Agreement comply with Employer's
expense reimbursement policy, are wholly or partially deductible by Employer for
federal income tax purposes pursuant to the Internal Revenue Code of 1986, as
amended and are documented and substantiated by Executive as required by the
Internal Revenue Service and the policies of Employer, Employer shall reimburse
the Executive for such expenditures; provided documentation therefor is
submitted not later than 45 days after such expense is incurred.
7. Termination by Employer.
(a) Employer shall have the right to terminate the Employment Term under
the following circumstances (and also as contemplated by Section 8(b)):
(i) upon the death of Executive;
(ii) in the event of a disability which prevents or seriously
inhibits Executive from performing his duties for 60 consecutive days as
determined in good faith by the Board, upon 30 days written notice from
Employer to Executive; or
(iii) for Cause (as defined below).
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"Cause" as used in this Agreement shall mean (i) Executive's commission of a
felony or any other crime involving moral turpitude, fraud, misrepresentation,
embezzlement or theft, (ii) Executive's engaging in any activity that is harmful
(including, without limitation, alcoholic or other self-induced affliction), in
a material respect, to Employer or any of its subsidiaries, monetarily or
otherwise, as determined by a majority of the Board; (iii) Executive's material
malfeasance (including without limitation, any intentional act of fraud or
theft), misconduct, or gross negligence in connection with the performance of
his duties hereunder; (iv) Executive's significant violation of any statutory or
common law duty of loyalty to Employer or any of its subsidiaries; (v)
Executive's material breach of this Agreement or of a material Company policy
(including without limitation, disclosure or misuse of any confidential or
competitively sensitive information or trade secrets of Employer or a
subsidiary); or (vi) Executive's refusal or failure to carry out directives or
instructions of the Board that are consistent with the scope and nature of
Executive's duties and responsibilities set forth herein, in the case of clause
(v) or (vi) above, only if such breach or failure continues for more than 10
days following written notice from Employer describing such breach or failure.
(b) If this Agreement is terminated pursuant to Paragraph 7(a), or for any
other reason (except by Executive pursuant to Paragraph 8 or by Employer other
than pursuant to Paragraph 7(a)), Executive's rights and Employer's obligations
hereunder shall forthwith terminate except that Employer shall pay Executive his
Base Salary earned but not yet paid through the effective date of termination.
In addition, if Executive is terminated pursuant to Paragraph 7(a)(i) or
7(a)(ii), Employer shall also pay Executive within 30 days following receipt of
audited financial statements for the year during which such termination
occurred, a prorated annual bonus in respect of the partial year during which
such termination occurred, the amount to be equal to the full amount of the
nondiscretionary bonus, if any, that would be due under Section 3(b) multiplied
by a fraction, the numerator of which is the number of days in such fiscal year
prior to such termination and the denominator of which is 365.
8. Termination by Executive.
(a) Executive shall have the right to terminate the Employment Term for
Good Reason (as defined below), upon 60 days' written notice to the Board given
within 60 days following the occurrence of an event constituting Good Reason;
provided that Employer shall have 10 days after the date such notice has been
given to the Board in which to cure the conduct specified in such notice. For
purposes of this Agreement "Good Reason" shall mean:
(i) Employer's failure to pay or provide when due Executive's Base
Salary, which failure is not cured within 10 days after the receipt by the
Board from Executive of a written notice referring to this provision and
describing such failure; or
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(ii) the failure to continue Executive in his position as provided in
Paragraph 2 or removal of him from such position; or
(iii) a material diminution of Executive's responsibilities, duties or
status, which diminution is not rescinded within 30 days after the date of
receipt by the Board from Executive of a written notice referring to this
provision and describing such diminution.
(b) If this Agreement is terminated pursuant to Paragraph 8(a), or if
Employer shall terminate Executive's employment under this Agreement other than
pursuant to Paragraph 7(a), Executive shall be entitled to the following, which
he acknowledges to be fair and reasonable, as his sole and exclusive remedy, in
lieu of all other remedies at law or in equity, for any such termination:
(i) Base Salary earned but not yet paid through date of termination;
(ii) a prorated annual bonus in respect of the partial year during
which such termination occurred, the amount to be equal to the full amount
of the nondiscretionary bonus, if any, that would be due under Section 3(b)
multiplied by a fraction, the numerator of which is the number of days in
such fiscal year prior to such termination and the denominator of which is
365; and
(iii) an amount equal to Executive's actual Base Salary (not including
any bonus paid or payable) for the 12-month period immediately prior to
such termination (or the period during which Executive was employed by
Employer if less than 12 months), payable in 24 equal installments during
the 24-month period immediately following such termination (the "Severance
Pay Period").
In the event of any such termination, Executive shall use commercially
reasonable efforts to secure alternative employment. During the last six months
of the Severance Pay Period, any compensation, income or benefits earned by or
paid to (in cash or otherwise) the Executive as an employee of or consultant to
a company other than Employer shall reduce the amount of severance payments
payable during such six-month period pursuant to Paragraph 8(b)(iii).
(c) If Executive terminates his employment at any time during the term of
this Agreement other than pursuant to Section 8(a), without limiting or
prejudicing any other legal or equitable rights or remedies which Employer may
have upon such breach by Executive, Executive will receive his Base Salary
earned but not yet paid through the date of termination.
9. Services Unique. Executive recognizes that Executive's services
hereunder are of a special, unique, unusual, extraordinary and intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately
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compensated for in damages, and in the event of a breach of this Agreement by
Executive (particularly, but without limitation, with respect to the provisions
hereof relating to the exclusivity of Executive's services and the provisions of
Paragraph 11), Employer shall, in addition to all other remedies available to
it, be entitled to equitable relief by way of an injunction and any other legal
or equitable remedies. Anything to the contrary herein not withstanding,
Employer may seek such equitable relief in a federal or state court in New York,
and the Executive hereby submits to jurisdiction in those courts.
10. Protection of Employer Interests. To the fullest extent permitted by
law, all rights worldwide with respect to any intellectual or other property of
any nature conceived, developed, produced, created, suggested or acquired by
Executive during the period commencing on the date hereof and ending six months
following the termination of Executive's employment hereunder shall be deemed to
be a work made for hire and shall be the sole and exclusive property of
Employer. Executive agrees to execute, acknowledge and deliver to Employer at
Employer's request, such further documents as the Employer finds appropriate to
evidence the Employer's rights in such property. Executive further acknowledges
that in performing his duties hereunder, he will have access to proprietary and
confidential information and to trade secrets of Employer and its subsidiaries.
Any confidential and/or proprietary information of Employer or its subsidiaries
shall not be used by Executive or disclosed or made available by Executive to
any person except (i) as required in the course of Executive's employment or
(ii) when required to do so by a court of law, by any governmental agency having
supervisory authority over the business of Employer or by any administrative or
legislative body (including a committee thereof) with apparent jurisdiction to
order him to divulge, disclose or make accessible such information, it being
understood that Executive will promptly notify Employer of such requirement so
that Employer may seek to obtain a protective order. Upon expiration or earlier
termination of the term of Executive's employment, Executive shall return to
Employer all such information that exists in written or other physical form (and
all copies thereof) under Executive's control.
11. Non-Competition.
(a) Exclusivity of Employment. Executive agrees that his employment
hereunder is on an exclusive basis, and that during the Employment Term, he will
not engage in any other business activity. Notwithstanding the foregoing,
nothing in this Agreement shall preclude Executive from (i) serving on the
boards of directors of other corporations (subject to approval of the Board
which shall not be unreasonably withheld), (ii) engaging in charitable and
public service activities, (iii) engaging in speaking and writing activities, or
(iv) from managing his personal investments, provided that such activities are
disclosed in writing to the Board in a notice that references this provision and
do not interfere with Executive's availability or ability to perform his duties
and responsibilities hereunder.
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(b) Noncompete. Executive agrees that during the Employment Term, and the
Severance Pay Period (if applicable), and the 12-month period thereafter, he
shall not, directly or indirectly, engage in, or participate as an investor in,
an officer, employee, director or agent of, or consultant for, any entity
engaging in any line of business competitive with that of Employer or any of its
subsidiaries or affiliates, or any line of business which Employer or any of its
subsidiaries or affiliates is contemplating; provided however that, nothing
herein shall prevent him from investing as less than a 5% shareholder in the
securities of any company listed on a national securities exchange or quoted on
an automated quotation system. Executive's participation in an entity in any of
the foregoing capacities, other than participation described in the foregoing
proviso, being sometimes referred to herein as being a "Participant."
(c) Nonsolicitation of Employees. Executive agrees that during the
Employment Term and the Severance Pay Period (if applicable), and the 36-month
period thereafter (the "Nonsolicitation Period"), he will not directly or
indirectly (i) employ, or be a Participant in any entity that employs any person
previously employed by Employer or any of its subsidiaries or affiliates or
(iii) in any way induce or attempt to induce any person to leave the employment
of Employer or any of its subsidiaries or affiliates.
(d) Nonsolicitation of Customers. Executive agrees that during the
Nonsolicitation Period, he will not directly or indirectly, solicit or do
business with, or be a Participant in any entity that solicits or does business
with, any customer of Employer or any of its subsidiaries or affiliates, nor
shall Executive in any way induce or attempt to induce any customer of Employer
or its subsidiaries or affiliates to do business with any person or entity other
than Employer or its subsidiaries or affiliates; provided however, that, the
foregoing shall not restrict Executive or any entity in which he is a
Participant from soliciting or doing business with any customer of Employer or
any of its subsidiaries or affiliates with respect to a line of business that
Employer or any of its subsidiaries is contemplating. Notwithstanding the
foregoing, after the expiration of the noncompetition period set forth in
Paragraph 11(b), Executive may participate as an investor in, an officer,
employee, director or agent of or consultant for an entity that does business
with one or more customers of Employer so long as Executive has not contact with
such customer and has no direct or indirect involvement in the solicitation of
business from any such customer.
(e) Standstill. Executive agrees that during the Nonsolicitation Period,
Executive shall not, except at the specific written request of the Board:
(i) engage in or propose, or be a Participant in any entity that
engages in or proposes, a Rule 13e-3 Transaction (as defined in Rule 13e-3
under the Securities Exchange Act of 1934) or any other material
transaction, between ASC or any of its subsidiaries or affiliates, on the
one hand, and Executive or any entity in which Executive is a Participant,
on the other hand;
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(ii) acquire any equity securities of ASC or any of its subsidiaries,
or be a Participant in any entity that acquires any equity securities of
ASC or any of its subsidiaries or affiliates provided however, that the
foregoing shall not apply so long as Executive's beneficial ownership of
any class of ASC's securities does not exceed 5% of the outstanding
securities of such class;
(iii) solicit proxies, or be a Participant in any entity that solicits
proxies, or become a Participant in any solicitation of proxies, with
respect to the election of directors of ASC or any of its subsidiaries or
affiliates in opposition to the nominees recommended by the Board of any
such entity; or
(iv) directly or indirectly, engage in or participate in any other
activity that would be reasonably expected to result in change of control
of ASC or any of its subsidiaries or affiliates.
The foregoing provisions of this Paragraph shall not be construed to prohibit or
restrict the manner in which Executive exercises his voting rights in respect of
any securities of ASC or any of its subsidiaries or affiliates acquired in a
manner that is not a violation of the terms of this Paragraph 11.
12. Nondisparagement. Executive will not at any time during or after this
Agreement directly (or through any other person or entity) make any public or
private statements (whether oral or in writing) which are derogatory or damaging
to Employer or any of its subsidiaries, businesses, activities, operations,
affairs, reputations or prospects or any of their respective officers,
employees, directors or shareholders. Employer will not at any time during or
after the term of this Agreement directly (or through any other person or
entity) make any defamatory public or private statements (whether oral or in
writing) concerning the Executive.
13. Representations of the Parties. Executive represents and warrants to
Employer that Executive has the capacity to enter into this Agreement and the
other agreements referred to herein, and that the execution, delivery and
performance of this Agreement and such other agreements by Executive will not
violate any agreement, undertaking or covenant to which Executive is party or is
otherwise bound. Employer represents to Executive that it is a corporation or
limited liability company, as applicable, duly organized and validly existing
under the laws of the State of Delaware. Employer represents to Executive that
it is fully authorized and empowered by action of the Board to enter into this
Agreement and the other agreements referred to herein, and that performance of
its obligations under this Agreement and such other agreements will not violate
any agreement between it and any other person, firm or other entity.
14. Key Man Insurance. Employer will have the right throughout the term of
this Agreement to obtain or increase insurance on Executive's life in such
amount as the
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Board determines in name of Employer, and for its sole benefit or otherwise, in
the discretion of the Board. Executive will cooperate in any and all necessary
physical examinations without expense to Executive, supply information, and sign
documents, and otherwise cooperate fully with Employer in connection with any
such insurance. Executive warrants and represents, that, to his best knowledge,
he is in good health and does not suffer from any medical condition which might
interfere with the timely performance of his obligations under this Agreement.
15. Notices. All notices given under this Agreement shall be in writing
and shall be deemed to have been duly given (a) when delivered personally, (b)
three business days after being mailed by first class certified mail, return
receipt requested, postage prepaid, (c) one business day after being sent by a
reputable overnight delivery service, postage or delivery charges prepaid, or
(d) on the date on which a facsimile is transmitted to the parties at their
respective addresses stated below. Any party may change its address for notice
and the address to which copies must be sent by giving notice of the new
addresses to the other parties in accordance with this Paragraph 15, except that
any such change of address notice shall not be effective unless and until
received.
If to Employer:
American Seafoods Corporation
Market Place Tower
2025 First Avenue
Suite 900
Seattle, Washington 98121
Facsimile: 206-374-1516
Attention: Michael J. Hyde
with a copy to:
Debevoise & Plimpton
919 Third Avenue
New York, New York 10022
Facsimile: 212-909-6836
Attention: Jeffrey J. Rosen, Esq.
If to the Executive, to his address set forth above.
16. Entire Agreement, Amendments, Waivers, Etc.
(a) No amendment or modification of this Agreement shall be effective
unless set forth in a writing signed by Employer and Executive. No waiver by
either party of any breach by the other party of any provision or condition of
this Agreement shall be deemed a waiver of any similar or dissimilar provision
or condition at the same or any
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prior or subsequent time. Any waiver must be in writing and signed by the
waiving party.
(b) This Agreement, together with the Schedules hereto and the documents
referred to herein and therein, sets forth the entire understanding and
agreement of the parties with respect to the subject matter hereof and
supersedes all prior oral and written understandings and agreements. There are
no representations, agreements, arrangements or understandings, oral or written,
among the parties relating to the subject matter hereof which are not expressly
set forth herein, and no party hereto has been induced to enter into this
Agreement, except by the agreements expressly contained herein. For the
avoidance of doubt, the Prior Employment Agreement is hereby superseded and
except to the extent expressly provided herein no party thereto shall have any
obligation thereunder.
(c) Nothing herein contained shall be construed so as to require the
commission of any act contrary to law, and wherever there is a conflict between
any provision of this Agreement and any present or future statute, law,
ordinance or regulation, the latter shall prevail, but in such event the
provision of this Agreement affected shall be curtailed and limited only to the
extent necessary to bring it within legal requirements.
(d) This Agreement shall inure to the benefit of and be enforceable by
Executive and his heirs, executors, administrators and legal representatives, by
Employer and its successors and assigns, and by Holdings and its successors and
assigns. This Agreement and all rights hereunder are personal to Executive and
shall not be assignable. Each of Employer may assign its rights under this
Agreement to any successor by merger, consolidation, purchase of all or
substantially all of its and its subsidiaries' assets, or otherwise; provided
that such successor assumes all of the liabilities, obligations and duties of
Employer under this Agreement, either contractually or as a matter of law. If
any provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect the other provisions or application of this
Agreement that can be given effect without the invalid provisions or
application, and to this end the provisions of this Agreement are declared to be
severable. It is expressly understood and agreed that although Executive and
Employer consider the restrictions contained in this Agreement to be reasonable,
if a final determination is made by an arbitrator to whom the parties have
assigned the matter or a court of competent jurisdiction that any such
restriction contained in this Agreement is an unenforceable restriction against
Executive, the provisions of this Agreement shall not be rendered void but shall
be reformed to apply as to such maximum time and to such maximum extent as such
arbitrator or court may determine or indicate to be enforceable. Alternatively,
if such arbitrator or court finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be reformed so as to
make it enforceable, such finding shall not affect the enforceability of any of
the other restrictions contained herein.
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17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of conflict of laws.
18. Right to Equitable Relief. Executive recognizes that Employer will
have no adequate remedy at law for his breach of any provision of Paragraph 10,
11 or 12 and in the event of any such breach or threatened breach he agrees that
Employer shall be entitled to obtain equitable relief in addition to other
remedies available at law and/or hereunder.
19. Taxes. All payments required to be made to Executive hereunder,
whether during the term of his employment hereunder or otherwise shall be
subject to all applicable federal, state and local tax withholding laws.
20. Headings, Etc. The headings set forth herein are included solely for
the purpose of identification and shall not be used for the purpose of
construing the meaning of the provisions of this Agreement. Unless otherwise
provided, references herein to Schedules and Paragraphs refer to Schedules to
and Paragraphs of this Agreement.
21. Arbitration. Subject to the provisions of Paragraph 9, any dispute or
controversy between Employer and Executive, arising out of or relating to this
Agreement, the breach of this Agreement, or otherwise, shall be settled by
arbitration in New York, New York , administered by the Arbitration Association
in accordance with its Commercial Rules then in effect and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall have the authority to award any remedy or relief
that a court of competent jurisdiction could order or grant, including, without
limitation, the issuance of an injunction. However, either party may, without
inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. Except as necessary in court proceedings
to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, neither party nor an arbitrator may disclose the
existence, content or results of any arbitration hereunder without the prior
written consent of Employer and Executive.
22. Survival. Executive's obligations under the provisions of Paragraphs
10, 11 and 12, as well as provisions of Paragraphs 6, 7(b), 8(b) and 15 through
and including 19 and Paragraphs 21 and 22, shall survive the termination or
expiration of this Agreement.
23. Construction. Each party has cooperated in the drafting and
preparation of this Agreement. Therefore, in any construction to be made of this
Agreement, the same shall not be construed against any party on the basis that
the party was the drafter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EMPLOYER:
AMERICAN SEAFOODS CORPORATION
By
-------------------------------------
Name:
Title:
AMERICAN SEAFOODS GROUP LLC
By
-------------------------------------
Name:
Title:
EXECUTIVE:
----------------------------------------
Brad Bodenman
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SCHEDULE I
BONUS CALCULATION
Subject to the terms and conditions of Paragraph 3(b) (including the
requirement that there shall have occurred no default under credit agreements
applicable to Employer or its affiliates), the nondiscretionary bonus described
in Paragraph 3(b) for any fiscal year shall be equal to (i) if EBITDA for such
fiscal year is less than 80% of Target EBITDA for such fiscal year, zero
dollars; (ii) if EBITDA for such fiscal year exceeds 120% of Target EBITDA for
such fiscal year, 150% of Executive's Base Salary for such fiscal year; and
(iii) if neither (i) nor (ii) applies, the product of 150% of Executive's Base
Salary during such fiscal year multiplied by a fraction, the numerator of which
is the amount by which EBITDA for such fiscal year exceeds 80% of Target EBITDA
for such fiscal year, and the denominator of which is 40% of Target EBITDA for
such fiscal year. Such bonus shall be determined by the Board in good faith on
the basis of the audited financial statements of Holdings and its subsidiaries.
For these purposes:
"EBITDA" means, for any period, the sum of the amounts for such period of
(i) net income (or loss) (excluding (I) interest income, (II) noncash income
items (other than ordinary accruals) and (III) extraordinary items), plus (ii)
to the extent deducted in determining consolidated net income, (x) interest
expense, (y) provisions for taxes based on net income and (z) depreciation and
amortization expense, each as determined for Holdings and its subsidiaries on a
consolidated basis in accordance with generally accepted accounting principals,
consistently applied, except that no effect shall be given to noncash gains and
losses on foreign exchange contracts. EBITDA for any period shall be determined
by the Board acting in good faith following receipt of audited financial
statements for the relevant period and shall reflect as expenses (determined on
an iterative basis if necessary) any bonuses payable in respect of such year.
"Target EBITDA" means, for any fiscal year, the amount set forth in the
table below opposite such fiscal year subject to adjustment on a pro forma
basis, if and to the extent determined appropriate by the Board, to reflect any
acquisitions or dispositions effected by Holdings or any of its subsidiaries
after the date hereof.
ANNUAL EBITDA TARGET
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EBITDA
FISCAL YEAR (in millions)
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2000 $ 88.6
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2001 $ 106.8
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2002 $ 109.9
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2003 $ 111.4
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2004 $ 116.4
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I-1