exv10w55



 





EXHIBIT 10.55




EXECUTIVE EMPLOYMENT, NON-COMPETE

AND CONFIDENTIALITY AGREEMENT




     THIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT
(“Agreement”) is entered into on this 15th day of December, 2003, by and
between Yuyun Tristan Kuo (the “Executive”) and Cuisine Solutions, Inc., a
Delaware corporation with its principal place of business in Alexandria,
Virginia (the “Corporation”) (collectively, the “Parties”).



     WHEREAS, the parties believe the Executive possesses the experience and
capabilities to provide valuable service on behalf of the Corporation; and



     WHEREAS, the Corporation desires to continue to employ the Executive, and
the Executive desires to be employed by the Corporation, at the salary,
benefits and other terms and conditions specified herein.



     NOW, THEREFORE, in consideration of these premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties agree as follows:



1. Employment.




     1.1 Duties. The Corporation hereby employs the Executive, and the
Executive hereby accepts such employment, to serve as a Vice President of
Finance (with the eventual goal of being CFO), effective December 15, 2003 (the
“Effective Date”). The Executive hereby represents and warrants that he is in
good health and capable of performing the services required hereunder. The
Executive shall perform such services and duties as are appropriate to such
office or such other executive level duties as may be delegated to him by the
Corporation’s CEO, Mr. Stanislas Vilgrain, or his designee or his successors
(the “CEO”). During the term of his employment under this Agreement, the
Executive shall be a full-time employee of the Corporation and shall devote
such time and attention to the discharge of his duties as may be necessary and
appropriate to accomplish and complete such duties.



     1.2 Compensation.



      (a) Salary and Performance Bonus. As compensation for performance of the
Executive’s obligations hereunder, the Corporation shall pay the Executive an
annual salary of $120,000 to be paid in equal installments of $4,618.38 on a
bi-weekly basis (the “Salary”), and a cash and/or stock option performance
bonus of up to fifty percent (50%) of the Salary based upon performance
criteria established by the CEO (the “Bonus”). The Bonus, if any, is to be
paid in four installments after the completion of each quarter. The
compensation will be reviewed annually by the Board Compensation Committee at
the annual Board meeting.



      (b) Vacation, Insurance, Expenses, Etc. The Executive shall be entitled
to such vacation benefits, 401K benefits, health, disability and life insurance
and other benefits and expense reimbursements in a manner consistent with the
Corporation’s practices and as are



 









 






provided by the Corporation to its other executives of similar status and
with like levels of responsibility.



      (c) Other Benefits. The Executive shall be entitled to participate in
stock option and incentive plans as may be granted or established from time to
time by the Corporation, in its sole discretion.



     1.3 Term; Termination. The term of the employment agreement set forth in
this Section 1 shall be for a period commencing on the Effective Date as
defined herein and continuing for three (3) years thereafter (the “Term”),
provided that this Agreement shall terminate as to the Executive’s employment
prior to the end of the Term:



      (a) by mutual written consent of the parties;



      (b) upon the Executive’s death or inability, by reason of physical or
mental impairment, to perform substantially all of the Executive’s duties as
contemplated herein for a continuous period of 120 days or more; or



      (c) by the Corporation for cause, which shall mean any act by the
Executive of fraud, material misrepresentation, misappropriation, dishonesty,
embezzlement, or similar conduct involving in any way the business of the
Corporation, gross negligence, willful misconduct, insubordination, breach of
trust or fiduciary duty owed the Corporation or its clients, abuse of illegal
drugs or controlled substances or alcohol, conviction of a felony or any crime
involving moral turpitude, or failure to perform duties in a manner
satisfactory to the Corporation, determined in good faith, and to cure or
remedy such failure within ten days after written notice.



     If the Corporation terminates this Agreement as to the Executive’s
employment prior to the end of the Term except as provided in clauses (a), (b)
and (c) of this Section 1.3, the Executive shall be entitled to receive an
amount equal to six (6) months of his annual base Salary, such compensation to
be paid in twelve equal bi-monthly installments, and all Options that were to
vest in the succeeding six months after the termination will be deemed
accelerated and subject to exercise by the Executive.



     Upon any termination of the Executive’s employment under this Section 1.3,
neither Party shall have any further obligation to the other pursuant to this
Section 1, but such termination shall have no effect on the obligations of the
Parties under other provisions of this Agreement, which shall continue
un-affected.



2. Non-Competition.




     2.1 Undertaking. The Executive agrees that while the Executive is
employed by the Corporation and for a period of six months after termination of
such employment, the Executive shall not, without the Corporation’s prior
written consent, engage in direct competition with the Corporation in business
lines that were within the Executive’s areas of responsibility during the
Executive’s employment with the Corporation to include sous vide and other
frozen gourmet



 









 






food enterprises. In the event the Corporation files under the Chapter 7
bankruptcy code of the United States, any obligations imposed upon the
Executive under this Section 2.1, or under Section 2.2 below, shall cease.



     2.2 Other Prohibited Activities.



      (a) The Executive agrees that, during his employment with the Corporation
and for a period of one (1) year after the termination of such employment, the
Executive will not engage in any Unethical Behavior which may adversely affect
the Corporation. For the purpose of this Section 2.2, “Unethical Behavior” is
defined as:



         (i) any attempt, successful or unsuccessful, by the Executive to divert
any existing or pending product sale, business relationship, re-seller
relationship, distributor relationship, partner relationship, contract,
subcontract or proposal from the Corporation to any other entity, whether or
not affiliated with the Executive;



         (ii) any attempt, successful or unsuccessful, by the Executive, to
adversely influence clients of the Corporation or organizations with which the
Corporation has an existing or pending product sale, business relationship,
re-seller relationship, distributor relationship, partner relationship,
contract, subcontract or proposal;



         (iii) any attempt, successful or unsuccessful, by the Executive to
influence any other employee of the Corporation to offer his or her services,
to any firm to compete, directly against the Corporation; or



         (iv) any attempt, successful or unsuccessful, by the Executive to offer
employment to, or cause any other person to offer employment to any other
employee of the Corporation.



      (b) The Executive agrees that, in addition to any other remedy available
to the Corporation, in the event of a breach by the Executive of the terms of
this Section 2, the Corporation may set off against any amounts due the
Executive an amount equal to the gross revenues which such Executive, or any
entity with which the Executive is employed, affiliated or associated, receives
or is entitled to receive from any existing clients (or potential clients with
whom a proposal is pending) of the Corporation during the period provided in
this Section 2.



      (c) The Executive shall notify any new applicable employer after
employment of the provisions of this Section 2.2 and the Executive agrees that
the Corporation may give such notice to such firm, corporation or other person.



     2.3 Business Opportunities; Conflicts of Interest; Other Employment and
Activities of the Executive.



      (a) While the Executive is employed by the Corporation, the Executive
agrees promptly to advise the Corporation of all business opportunities that
reasonably relate to the present business conducted by the Corporation, or such
new business as the Corporation may conduct.



 









 






(b) The Executive, in his capacity as an employee of the Corporation,
shall not engage in any business with any member of the Executive’s immediate
family or with any person or business entity in which the Executive or any
member of the Executive’s immediate family has any ownership interest or
financial interest, unless and until the Executive has first fully disclosed
such interest to and received written consent from the CEO; provided, however,
that the Executive may passively invest in family businesses. As used herein,
the term “immediate family” means the Executive’s spouse, natural or adopted
children, parents or siblings, and the term “financial interest” means any
relationship with such person or business entity that may monetarily benefit
the Executive or member of the Executive’s immediate family, including any
lending relationship or the guarantying of any obligations of such person or
business entity by the Executive or member of his immediate family.


3. Confidentiality. The Executive agrees that the Corporation’s books,
records, files and all other non-public information relating to the
Corporation, its business, clients and employees are proprietary in nature and
contain trade secrets and shall be held in strict confidence by the Executive,
and shall not, either during the term of this Agreement or after the
termination hereof, be disclosed, directly or indirectly, to any third party,
except to the extent such disclosure is in furtherance of the Corporation’s
business or required by court order or other legal process. The trade secrets
or other proprietary or confidential information referred to in the prior
sentence includes, without limitation, all code, screens, specifications,
designs, works, plans, drawings, data, prototypes, discoveries, algorithms,
inventions, formulae, research, developments, methods, “know-how”,
compilations, patents, copyrights, mask works, and other intellectual property
rights and technical information and material, in oral, demonstrative, written,
graphic or machine-readable form, and either owned on the Effective Date or
developed thereafter by the Corporation and/or its affiliates or licensed to
the Corporation and/or its affiliates. In addition, all Corporation proposals
to clients or potential clients, contracts, client or potential client lists,
fee policies, financial information, administration or marketing practices or
procedures and all other information regarding the business of the Corporation
and its clients not generally known to the public shall be deemed proprietary
and shall be subject to the confidentiality requirements of this provision.



4. Miscellaneous.




     4.1 Life Insurance. The Executive hereby acknowledges that the
Corporation is entitled to obtain, in its sole discretion and at any time while
the Executive is employed by the Corporation, insurance on the life of the
Executive and naming the Corporation as beneficiary. The Executive hereby
agrees to co-operate fully with the Corporation in securing such life
insurance, such co-operation to include but not be limited to, submitting to
medical examinations and disclosing fully any and all information legally
requested by the insurance carrier in connection with obtaining such life
insurance. Medical information will remain confidential between the Executive
and the insurance carrier. The Corporation agrees to make any and all premium
payments pursuant to any life insurance contract covering the Executive that
the Corporation obtains for its own benefit. The Executive agrees and
acknowledges that the estate of the Executive shall have no rights to or
interest in the proceeds of said life insurance policy or policies.



 









 






     4.2 Notices. All notices, requests, demands or other communications
provided for in this Agreement shall be in writing and shall be delivered by
hand, sent prepaid by overnight delivery service or sent by the United States
mail, certified, postage prepaid, return receipt request, to the following:


If to the Corporation:


Cuisine Solutions, Inc.

95 S. Bragg Street Suite 600

Alexandria, VA. 22312

Attn: Thomas Gregg

Telephone: (703) 270-2900

Facsimile: (703) 750-1158


If to the Executive:


Yuyun Tristan Kuo

10369 Breconshire Road

Ellicott City, Maryland 21042


Any notice, request, demand or other communication delivered or sent in
the foregoing manner shall be deemed given or made (as the case may be)
upon the earliest of (i) the date it is actually received, (ii) the
business-day after the day on which it is delivered by hand, (iii) the
business day after the day on which it is properly delivered to Federal
Express (or a comparable overnight delivery service), or (iv) the third
business day after the date on which it is deposited in the United States
mail; unless Party is on business travel or vacation, then it is when it
is actually received or upon Party’s return from travel. Either Party may
change its address by notifying the other Party of the new address in any
manner permitted by this paragraph.




     4.3 Remedies. The parties agree and acknowledge that any violation by the
Executive of the terms of Sections 2.1 and 2.2 of this Agreement may result in
irreparable injury and damage to the Corporation or its clients, which may not
adequately be compensable in monetary damages, that the Corporation may not
have an adequate remedy at law therefor, and that the Corporation may obtain
such preliminary, temporary or permanent mandatory or restraining injunctions,
orders or decrees as may be necessary to protect it against, or on account of,
any breach of Sections 2.1 and 2.2. Notwithstanding, and as an exception to
Section 4.10 of this Agreement, the Parties further agree and acknowledge that
the Corporation may seek such injunctive relief in any court of competent
jurisdiction pursuant to this Section 4.3.



     4.4 No Obligation of Continued Employment. The Executive and the
Corporation understand that this Agreement does not create an obligation on the
part of the Corporation or the executive to continue the Executive’s employment
with the Corporation after the termination of this Agreement. If the
Corporation elects not to extend the Executive’s employment at the end



 









 




of the two year term set forth in Section 1.3 for reasons other than
Section 1.3 (a), (b), and (c), the Executive shall receive compensation
following the end of his employment in a total amount equal to one half (1/2)
of his annual base Salary, such compensation to be paid in twelve equal
bi-monthly installments. The agreement to make such Salary payments shall
constitute additional consideration in support of the Executive’s covenants
under Section 2.1 and 2.2 hereof




     4.5 Benefit; Assignment. This Agreement shall bind and inure to the
benefit of the Parties and their respective personal representatives, heirs,
successors and assigns, provided this Agreement may not be assigned by either
Party without the consent of the other, except that the Corporation may assign
this Agreement in connection with the merger, consolidation or sale of all or
substantially all of its business or assets.



     4.6 Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, with respect to the subject matter of this Agreement.



     4.7 Severability. In the event that any one or more of the provisions
contained herein shall be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, and all other provisions shall remain in
full force and effect. If any of the provisions of this Agreement is held to
be excessively broad, it shall be reformed and construed by limiting and
reducing it so as to be enforceable to the maximum extent permitted by law.



     4.8 Waivers. No delay or omission by the Corporation in exercising any
right under this Agreement will operate as a waiver of that or any other right.
A waiver or consent given by the Corporation on any occasion is effective only
in that instance and will not be construed as a bar to or waiver of any right
on any other occasion.



     4.9 Governing Law & Jurisdiction. This Agreement shall be construed as a
sealed instrument and shall in all events and for all purposes be governed by,
and construed in accordance with, the laws of the Commonwealth of Virginia
without regard to any choice of law principle that would dictate the
application of the laws of another jurisdiction.



     4.10 Arbitration. The Parties shall attempt to settle amicably through
negotiation any controversy, claim or dispute (“Dispute”) arising out of or
relating to this Agreement, including but not limited to any Dispute related to
the Executive’s performance of his duties hereunder or the interpretation of
this Agreement. If a Dispute cannot be settled by such means, the Parties
hereto intend and agree to submit such Dispute, whether sounding in contract or
tort, to final and binding arbitration before a single neutral arbitrator who
is, and pursuant to arbitration procedures which are, acceptable to both
Parties. If the Parties cannot or do not otherwise agree within 30 days of the
date on which written notice of a Dispute is given, any such Dispute shall be
submitted for arbitration by the American Arbitration Association pursuant to
the Commercial Arbitration Rules of the American Arbitration Association then
in effect. Any arbitration shall be conducted in Virginia or such other
location as the Parties may mutually agree, and notice of demand for
arbitration shall be provided in writing to the other Party. The Parties
further intend and agree that the final decision or award of the arbitrator
shall be binding on the Parties and their successors and fully enforceable by
any court of competent jurisdiction. The Parties further intend and agree that
facts and other information relating to any arbitration arising out of or in



 









 




connection with this Agreement shall be kept confidential to the fullest
extent permitted by law. In addition, each Party shall bear its own expenses
in connection with such arbitration unless otherwise ordered by the arbitrator.
If, a dispute is submitted to arbitration pursuant to this Section 4.10, any
monetary relief which may be granted to the Executive shall be limited to
compensatory damages and EXECUTIVE EXPRESSLY WAIVES ANY CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES. Notwithstanding the foregoing, the provisions of this
section do not require arbitration of any claim for injunctive relief within
the scope of Section 4.3 above.




     4.11 Amendments. No changes to this Agreement shall be binding unless in
writing and signed by both Parties.



     4.12 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute one instrument.



     THE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE
EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE
UNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE’S RIGHT TO ACCEPT
EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT WITH
THE CORPORATION.


IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.




	 	 	 	 	 
	

	 	EXECUTIVE
	 	Cuisine Solutions, Inc.
	 
	 	 	 	 
	

	 	/s/ Yuyun Tristan Kuo
	 	By: /s/ Stanislas Vilgrain
	

	 	
 
	 	
 
	

	 	Yuyun Tristan Kuo
	 	Stanislas Vilgrain

Chief Executive Officer