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Exhibit 10.1
MID-CAREER HIRE PENSION AGREEMENT
This is an AGREEMENT dated March 30, 1998 ("Agreement"), by
and between VLASIC FOODS INTERNATIONAL INC. ("Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
("Bernstock").
SECTION 1. PURPOSE
The purpose of the Agreement is to provide Bernstock with retirement
benefits that supplement the retirement income that he is to receive from
designated Company sources, including the Qualified Plan and the Nonqualified
Plans.
SECTION 2. DEFINITIONS
The following words and phrases, as used in this Agreement, shall have
these meanings:
(a) "Adjusted Final Pay" means Bernstock's Final Pay, as that term is
defined in the Qualified Plan, but for this Agreement including in "Annualized
Earnings," as that term is defined in the Qualified Plan, and contingent awards
of incentive compensation awarded under the Vlasic Foods International Inc.
Annual Incentive Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "▇▇▇▇▇▇▇▇ Group" means ▇▇▇▇▇▇▇▇ Soup Company and all of its
Subsidiaries.
(d) "Committee" means the Compensation and Organization Committee of
the Board.
(e) "Company" means Vlasic Foods International Inc. and its successors
and assigns.
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(f) "Effective Retirement Date" means Bernstock's Effective Retirement
Date, as that term is defined in the Qualified Plan.
(g) "Normal Retirement Date" means Bernstock's Normal Retirement Date,
as that term is defined in the Qualified Plan.
(h) "Nonqualified Plans" means the Company's excess benefit pension
arrangements as in effect from time to time on and after the date of this
Agreement, but not including the arrangement under this Agreement or any other
supplemental pension arrangement adopted on or after the date of this Agreement.
(i) "Qualified Plan" means the Vlasic Foods International Inc.
Retirement and Pension Plan for Salaried Employees as in effect on and after the
date of this Agreement.
(j) "Social Security Covered Compensation" means the average annual
amount of compensation on which the old age benefits for an individual age 65
would be computed under the Federal Social Security Act in effect at the time of
termination of his or her employment, assuming such individual had always earned
compensation at least equal to the wage base subject to tax under the Federal
Insurance Contributions Act.
(k) "Subsidiary" means a corporation, the majority of the voting stock
of which is owned directly or indirectly by the Company.
(l) "Vlasic Group" means the Company and all of its Subsidiaries.
(m) "Years of Service" means all Bernstock's Years of Service, as that
term is defined in the Qualified Plan, in the employ of the Company, any
Subsidiary and the ▇▇▇▇▇▇▇▇ Group.
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SECTION 3. ELIGIBILITY
Bernstock shall be eligible for benefits under this Agreement in
accordance with its terms.
SECTION 4. VESTING AND BENEFITS
(a) Voluntary Resignation Before Age 55. If Bernstock voluntarily
resigns without the consent of the Company before attaining age 55, he shall
automatically forfeit all benefits under this Agreement.
(b) Termination by the Company Before Age 55. If Bernstock is
terminated by the Company prior to attaining age 55, for other than Cause, as
defined in Section 13(c), he shall be vested in the Accelerated Benefit only
(see Section 7).
(c) Retirement On or After Age 55. If Bernstock retires on or after age
55, he shall be vested in the Income Replacement Benefit only (see Section 7).
SECTION 5. DEATH AND DISABILITY BENEFITS
(a) If Bernstock's employment terminates prior to his attaining age 55,
due to death or Total Disability, as defined in the Qualified Plan, Bernstock or
his beneficiary shall be immediately vested in and entitled to the Accelerated
Benefit (see Section 7) based upon his Years of Service to the date of his death
or total disability.
(b) If Bernstock's employment terminates due to death or Total
Disability after he has attained age 55, Bernstock or his beneficiary shall be
entitled to the Income Replacement Benefit (see Section 7) based on Years of
Service to the date of the death or total disability.
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SECTION 6. CONDITIONS TO BENEFIT ENTITLEMENT
Subject to the provisions of Section 10(d), each payment of benefits
under this Agreement shall be subject to the conditions that:
(a) Bernstock's employment with the Vlasic Group shall not have been
terminated for Cause; and
(b) prior to such payment, Bernstock shall not have engaged in conduct
materially detrimental to the interests of the Company or any Subsidiary,
including, without limitation, engaging in any business competitive with a
business in which the Company or a Subsidiary (i) was engaged at any time during
Bernstock's employment with the Vlasic Group, and (ii) is engaged at the time
Bernstock is engaged in the competitive business.
SECTION 7. BENEFIT FORMULAS
A. Accelerated Benefit Formula
A straight life annuity, payable in monthly installments commencing on
Bernstock's Normal Retirement Date and with 60 monthly installments guaranteed,
equal to the excess, if any, of (a) over (b) where:
(a) is the sum of:
(i) two and four-tenths percent (2.4%) of his Adjusted Final Pay up to
the Social Security Covered Compensation multiplied by his Years of Service not
in excess of five (5), plus one and two tenths percent (1.2%) of his Adjusted
Final Pay up to the Social Security Covered Compensation multiplied by his Years
of Service in excess of five (5) but not in excess of twenty (20), plus
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(ii) three and six tenths percent (3.6%) of his Adjusted Final Pay in
excess of the Social Security Covered Compensation multiplied by his Years of
Service not in excess of five (5) plus one and eight tenths percent (1.8%) of
his Adjusted Final Pay in excess of the Social Security Covered Compensation
multiplied by his Years of Service in excess of five (5) but not in excess of
twenty (20); and
(b) is the sum of:
(i) the straight life annuity payable to Bernstock in monthly
installments, commencing on his Normal Retirement Date and with 60 monthly
installments guaranteed, under the Qualified Plan;
(ii) the annual retirement benefit payable to Bernstock on a five-year
certain and life annuity basis commencing on his Normal Retirement Date under
the Nonqualified Plans; and
(iii) an imputed benefit calculated using a straight life annuity as if
payable in monthly installments, commencing on Bernstock's Normal Retirement
Date and with 60 monthly installments guaranteed, under the Qualified Plan based
upon the following assumptions:
(A) Final Average Pay equals Bernstock's annual salary on the date he
was employed by the ▇▇▇▇▇▇▇▇ Group, and
(B) Years of Service equal the number of whole years between
Bernstock's age at date of hire by the ▇▇▇▇▇▇▇▇ Group and 32, but such imputed
Years of Service shall be limited to the lesser of (1) actual Years of Service
under the Qualified Plan or (2) 10 years.
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B. Income Replacement Benefit Formula
A straight life annuity, payable in monthly installments commencing on
Bernstock's Normal Retirement Date and with 60 monthly installments guaranteed,
equal to the excess, if any, of (a) over (b) where:
(a) equals 45% of Adjusted Final Pay reduced by one and eight tenths
percent (1.8%) for each year Bernstock's age is below age 62 at date of
retirement; and
(b) is the sum of
(i) the straight life annuity payable to Bernstock in monthly
installments, commencing on his Normal Retirement Date and with 60 monthly
installments guaranteed, under the Qualified Plan;
(ii) the annual retirement benefit payable to Bernstock on a five-year
certain and life annuity basis commencing on his Normal Retirement Date under
the Nonqualified Plans; and
(iii) an imputed benefit calculated using a straight life annuity as if
payable in monthly installments, commencing on Bernstock's Normal Retirement
Date and with 60 monthly installments guaranteed, under the Qualified Plan based
upon the following assumptions:
(A) Final Average Pay equals the annual salary of Bernstock on the
date he was employed by the ▇▇▇▇▇▇▇▇ Group, and
(B) Years of Service equal the number of whole years between
Bernstock's age at date of hire by the ▇▇▇▇▇▇▇▇ Group and 32, but such imputed
Years of Service shall be limited to the lesser of (1) actual Years of Service
under the Qualified Plan or (2) 10 years.
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SECTION 8. TIME AND FORM OF PAYMENT; BENEFICIARY.
(a) The annual retirement benefit payable under this Agreement shall
be paid commencing at the same time and with the same reductions, if any, for
commencement of benefits before Normal Retirement Date, and in the same optional
form, and shall be provided with the same death benefits after retirement, if
any, as Bernstock's retirement benefits under the Qualified Plan. Any
adjustments and reductions shall be made using the same actuarial factors as
apply under the Qualified Plan.
(b) If no retirement benefits are payable to Bernstock under the
Qualified Plan, then he:
(i) may elect a joint and survivor or any other optional form of
payment provided under the Qualified Plan for payment of his benefits under this
Agreement;
(ii) may elect to receive his benefits under this Agreement commencing
at the same time as he would be permitted to receive retirement benefits under
the Qualified Plan if he were fully vested thereunder; and
(iii) shall be provided the same death benefits after retirement and
optional forms of payment with respect to his benefits under this Agreement as
would be provided under the Qualified Plan if Bernstock were fully vested
thereunder. In clauses (i), (ii) and (iii) above, the same terms and conditions
(including without limitation actuarial adjustments, early retirement reduction
factors, coverage charges, and election requirements) shall apply as would apply
under the Qualified Plan.
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(c) Bernstock's beneficiary under the Qualified Plan shall
automatically be deemed to be designated as the recipient of the retirement
benefits, if any, payable under this Agreement in the event of Bernstock's
death. If no benefits are payable to Bernstock under the Qualified Plan, he may
designate a beneficiary to receive the portion, if any, of the benefits payable
under this Agreement in the event of his death, on the same terms and conditions
as apply to the designation of a beneficiary under the Qualified Plan.
SECTION 9. RETIREE MEDICAL BENEFITS
If Bernstock is not eligible to participate in the Vlasic Foods
International Inc. Retiree Medical Plan because he does not have the requisite
period of service, then he shall be eligible to receive under this Agreement the
same benefits as provided under the Vlasic Foods International Inc. Retiree
Medical Plan. If Bernstock is receiving retiree medical benefits under this
Agreement because of total disability and is no longer totally disabled and is
under age 55, such benefits will cease.
SECTION 10. GENERAL PROVISIONS
(a) Construction. This Agreement (i) is not intended to be a qualified
plan under section 401(a) of the Internal Revenue Code of 1986, as amended, and
(ii) is intended to meet the requirements of sections 201(2), 301(a)(3) and
401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended.
This Agreement shall be administered, interpreted and construed to carry out
such intentions, and any provision hereof that cannot be so administered,
interpreted and construed shall to that extent be disregarded.
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(b) Qualified and Nonqualified Plans not Affected. Any benefits payable
pursuant to this Agreement are intended to be in excess of those, if any,
payable under the Qualified Plan and the Nonqualified Plans.
(c) Administration; Finality of Decisions. The Agreement shall be
administered by the Committee. The Committee shall have all necessary powers to
administer and interpret it. The Committee shall have full power and authority
to adopt such rules, regulations and instruments for the administration of the
Agreement, as it deems necessary or advisable. The Committee's interpretations
of the Agreement, as well as all actions taken and determinations made by the
Committee pursuant to the powers vested in it hereunder, shall be conclusive and
binding on Bernstock and the Company.
(d) Failure to Satisfy Conditions. If Bernstock shall fail to satisfy
any of the conditions set forth in Section 6, the Company shall not be obligated
after such failure to pay any benefits remaining to be paid to or on behalf of
Bernstock, provided that, in the case of any alleged failure to satisfy the
conditions set forth in Section 6(a) or Section 6(b), all of the following shall
have taken place:
(i) the Secretary of the Company, at the direction of the
Committee, shall have given written notice to Bernstock (hereafter
referred to as the "Notice") setting forth with reasonable specificity
(A) the alleged failure, and (B) the loss of rights to benefits that
will occur unless Bernstock rectifies such failure to the satisfaction
of the Committee within 30 days after his receipt of the Notice;
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(ii) Bernstock shall not have rectified such failure to the
reasonable satisfaction of the Committee within thirty (30) days after
his receipt of the Notice; and
(iii) the Secretary of the Company at the direction of the
Committee and after the expiration of the thirty (30) day period
referred to in clause (ii) above, shall have given written notice to
the Bernstock that, in the opinion of the Committee, he has not
rectified the failure.
(e) Acceleration on Default. If the Company fails to pay in a timely
manner the benefits due Bernstock or his beneficiary under this Plan and if the
Company neglects to remedy such failure within thirty (30) days after having
received written notice of it from Bernstock or his beneficiary, then the
Company shall thereupon pay to Bernstock or his beneficiary as the case may be
in full discharge of its obligations the lump-sum actuarial equivalent of all
benefits remaining to be paid.
(f) Actuarial Calculations. Whenever it shall be necessary or
appropriate to make an actuarial calculation under this Agreement the same
actuarial factors, assumptions and procedures shall be followed as are used
under the Qualified Plan.
(g) Withholding. The Company may withhold from any benefits to be paid
under this Agreement such amounts as it determines are required to be withheld
under the laws or regulations of any governmental authority.
(h) Claims Procedure. Any claim for benefits under this Agreement shall
be delivered in writing by Bernstock or his representative to the Committee in
accordance with such rules as the Committee may from time to time establish.
Within a reasonable time after receiving any
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claim for benefits under this Agreement, the Committee shall inform the claimant
in writing whether such claim is allowed or denied. Any denial by the Committee
of any claim for benefits under this Agreement shall be stated in writing by the
Committee and delivered or mailed to the claimant and such notice shall be
written in a manner calculated to be understood by the claimant and shall
include (i) the specific reasons for the denial, including where appropriate,
references to this Agreement, (ii) any additional information necessary to
perfect the claim with an explanation of why the information is necessary and
(iii) an explanation of the procedure for perfecting the claim. The claimant
shall have sixty (60) days after receipt of written notification of denial of
his claim in which to file a written appeal with the Committee. As a part of any
such appeal, the claimant may submit issues and comments in writing and shall,
on request, be afforded an opportunity to review any documents pertinent to the
perfection of his claim. The Committee shall render a written decision on the
claimant's appeal ordinarily within sixty (60) days of receipt thereof but, in
no case, later than one hundred twenty (120) days.
(i) No Employment Rights. Neither the action of the Company in entering
into this Agreement, nor any action taken by it or by the Board or the Committee
under this Agreement, nor any provision of this Agreement, shall be construed as
giving to Bernstock the right to be retained in the employ of the Vlasic Group.
(j) Unfunded Obligation. Bernstock and his beneficiary shall not have
any right, title or interest whatsoever in any investments that the Vlasic Group
may make to aid it in meeting its obligations under this Agreement. All benefits
under this Agreement represent an unsecured promise to pay by the Company. The
Company's obligations hereunder shall be unfunded and the
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benefits hereunder shall be paid only from the general assets of the Vlasic
Group resulting in Bernstock's having no greater rights than the Company's
general creditors; provided, however, nothing herein shall prevent or prohibit
the Company from establishing a trust or other arrangement for the purpose of
providing for the payment of the benefits payable under this Agreement.
(k) Rights Non-Transferable. To the extent permitted by law, no benefit
under this Plan shall be transferable, alienable or assignable by Bernstock or
his beneficiary, nor shall any such right, interest or benefit be subject to
anticipation, encumbrance, garnishment, attachment, execution or levy of any
kind, voluntary or involuntary. Any attempt, voluntary or otherwise, to effect
any such action shall, to the full extent permitted by law, be null and void.
If, by reason of any attempt of Bernstock or his beneficiary to alienate,
charge, encumber or otherwise dispose of any benefit under this Agreement, or by
reason of bankruptcy or insolvency, or because of any attachment, garnishment or
other judicial or administrative proceedings, such benefit of Bernstock or his
beneficiary would (except for this paragraph) be payable to some person other
than Bernstock or his beneficiary, then the Committee may (in its sole
discretion) terminate such benefit. Thereafter, the Committee may, in its sole
discretion, apply all or any portion of the benefits that would otherwise have
been payable, but for such termination, to the support and maintenance of
Bernstock or his beneficiary, as the case may be, or of a dependent family
member.
(l) Facility of Payment. If the Committee finds that Bernstock or any
beneficiary to whom a benefit is payable hereunder is unable to care for his
affairs because of physical, mental or
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legal incompetence, the Committee, in its sole discretion, may cause any payment
due to him hereunder for which prior claim has not been made by a duly qualified
guardian or other legal representative to be paid to the person deemed by the
Committee to be maintaining or responsible for the maintenance of Bernstock or
his beneficiary; and any such payment shall be deemed a payment for the account
of Bernstock or his beneficiary and shall constitute a complete discharge of any
liability therefor under this Agreement. If Bernstock dies before receiving all
the payments due him and without having a designated beneficiary, such payments
shall be made to his estate.
(m) Severability. In the event that any provision of this Agreement,
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions shall be unaffected thereby and shall remain in full force and
effect.
(n) Notices.
(i) Any instrument to be delivered under this Agreement to the
Committee shall be deemed to have been properly delivered if and when
received by the Secretary of the Company at the Company's principal
place of business.
(ii) Any instrument to be delivered under this Agreement to
Bernstock or his beneficiary shall be deemed to have been properly
delivered in each case if and when received by Bernstock or his
beneficiary or upon deposit thereof, in a post office box regularly
maintained by the United States Government, in an envelope, with first
class mail postage, addressed to Bernstock or his beneficiary at his or
her address as it appears from time to time on the books of the
Company.
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SECTION 11. AMENDMENT, SUSPENSION OR TERMINATION
The Board or its delegate may amend, suspend or terminate this
Agreement in whole or part; but no such amendment, suspension or termination may
adversely affect benefits accrued by Bernstock based upon his Years of Service
to the date of such amendment, suspension or termination.
SECTION 12. GOVERNING LAW
The provisions of this Agreement shall be construed, administered and
enforced in accordance with the laws of the State of New Jersey.
SECTION 13. CHANGE IN CONTROL
(a) Contrary Provisions. Notwithstanding anything contained in this
Agreement to the contrary, the provisions of this Section 13 shall govern and
supersede any inconsistent terms or provisions of this Agreement.
(b) Definition of Change in Control. For purposes of this Agreement
"Change in Control" means any of the following events:
(A) The acquisition in one or more transactions by any
"Person" (as the term person is used for purposes of Section 13(d)
or Section 14(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) of "Beneficial Ownership" (within the meaning of
Rule 13d-3 promulgated under the ▇▇▇▇ ▇▇▇) of twenty-five percent
(25%) or more of the combined voting power of the Company's then
outstanding voting securities (the "Voting Securities"); provided,
however, that for purposes of this Section 13(b)(A), the Voting
Securities
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acquired directly from the Company by any Person shall be excluded
from the determination of such Person's Beneficial Ownership of
Voting Securities (but such Voting Securities shall be included in
the calculation of the total number of Voting Securities then
outstanding); or
(B) The individuals who, as of the later of April 1, 1998 or
the first date that the membership of the Board reaches seven (7),
are members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the
Company's shareowners, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a member of
the Incumbent Board; or
(C) Approval by the Company's shareowners of (1) a merger or
consolidation involving the Company if the shareowners of the
Company, immediately before such merger or consolidation, do not
own, directly or indirectly immediately following such merger or
consolidation, more than eighty percent (80%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the Voting
Securities immediately before such merger or consolidation or (2) a
complete liquidation or dissolution of the Company or an agreement
for the sale or other disposition of all or substantially all
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of the assets of the Company; or
(D) Acceptance by shareowners of the Company of shares in a
share exchange if the shareowners of the Company, immediately
before such share exchange, do not own, directly or indirectly
immediately following such share exchange, more than eighty percent
(80%) of the combined voting power of the outstanding voting
securities of the corporation resulting from such share exchange in
substantially the same proportion as their ownership of the Voting
Securities outstanding immediately before such share exchange.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because twenty-five percent (25%) or more of the then
outstanding Voting Securities is acquired by (i) a trustee or other
fiduciary holding securities under one or more employee benefit plans
maintained by the Company or any of its Subsidiaries, (ii) any
corporation that, immediately prior to such acquisition, is owned
directly or indirectly by the shareowners of the Company in the same
proportion as their ownership of stock in the Company immediately prior
to such acquisition, (iii) any "Grandfathered ▇▇▇▇▇▇▇▇ Family
Shareowner" (as hereinafter defined) or (iv) any Person who has
acquired such Voting Securities directly from any Grandfathered
▇▇▇▇▇▇▇▇ Family Shareowner but only if such Person has executed an
agreement that is approved by two-thirds of the Board and pursuant to
which such Person has agreed that he (or they) will not increase his
(or their) Beneficial Ownership (directly or indirectly) to thirty
percent (30%) or more of the
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outstanding Voting Securities (the "Standstill Agreement") and only for
the period during which the Standstill Agreement is effective and fully
honored by such Person. For purposes of this Section, "Grandfathered
▇▇▇▇▇▇▇▇ Family Shareowner" means at any time a "▇▇▇▇▇▇▇▇ Family
Shareowner" (as hereinafter defined) who or which is at the time in
question the Beneficial Owner solely of (v) Voting Securities
Beneficially Owned by such individual on April 1, 1998, (w) Voting
Securities acquired directly from the Company, (x) Voting Securities
acquired directly from another Grandfathered ▇▇▇▇▇▇▇▇ Family
Shareowner, (y) Voting Securities that are also Beneficially Owned by
other Grandfathered ▇▇▇▇▇▇▇▇ Family Shareowners at the time in
question, and (z) Voting Securities acquired after April 1, 1998 other
than directly from the Company or from another Grandfathered ▇▇▇▇▇▇▇▇
Family Shareowner by any "▇▇▇▇▇▇▇▇ Grandchild" (as hereinafter
defined); provided that the aggregate amount of Voting Securities so
acquired by each such ▇▇▇▇▇▇▇▇ Grandchild shall not exceed five percent
(5%) of the Voting Securities outstanding at the time of such
acquisition. A "▇▇▇▇▇▇▇▇ Family Shareowner" who or which is at the time
in question the Beneficial Owner of Voting Securities that are not
specified in clauses (v), (w), (x), (y) and (z) of the immediately
preceding sentence shall not be a Grandfathered ▇▇▇▇▇▇▇▇ Family
Shareowner at the time in question. For purposes of this Section,
"▇▇▇▇▇▇▇▇ Family Shareowners" means individuals who are descendants of
the late ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and/or the spouses, fiduciaries and
foundations of such descendants. A "▇▇▇▇▇▇▇▇ Grandchild" means, as to
each particular grandchild of the late ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., all
of the following taken collectively:
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such grandchild, such grandchild's descendants and/or the spouses,
fiduciaries and foundations of such grandchild and such grandchild's
descendants.
Moreover, notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject Person")
acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Company that, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person; provided that if a Change in
Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and
after such share acquisition by the Company, the Subject Person becomes
the Beneficial Owner of any additional Voting Securities that increases
the percentage of the then outstanding Voting Securities Beneficially
Owned by the Subject Person, then a Change in Control shall occur.
(c) Definition of Cause. For purposes of this Agreement, "Cause" means
the termination of Bernstock's employment by reason of his engaging in conduct
that constitutes willful gross misconduct that is demonstrably and materially
injurious to the Company, monetarily otherwise, misappropriation of funds,
willful and material misrepresentation to the directors of the Company, gross
negligence in the performance of Bernstock's duties having a material adverse
effect on the business, operations, assets, properties or financial condition of
the Company or a Subsidiary, or entering into competition with the Company or a
Subsidiary. No act, nor failure to
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act, on Bernstock's part shall be considered "willful" unless he has acted, or
failed to act, with an absence of good faith and without a reasonable belief
that his action or failure to act was in the best interest of the Company and
its Subsidiaries.
(d) Definition of Termination Following a Change in Control. For
purposes of this Agreement, "Termination Following a Change in Control" means a
termination of employment:
(i) initiated by the Company, other than for Cause; or
(ii) initiated by Bernstock following one or more of the following
events:
(A) an assignment to Bernstock of any duties materially
inconsistent with, or a reduction or change by the Company in the nature or
scope of the authority, duties or responsibilities of Bernstock from those
assigned to or held by Bernstock immediately prior to the Change in Control;
(B) any removal of Bernstock from the positions held
immediately prior to the Change in Control, except in connection with promotions
to positions of greater responsibility and prestige;
(C) any reduction by the Company in Bernstock's compensation
as in effect immediately prior to the Change in Control or as the same may be
increased thereafter;
(D) revocation or any modification of any employee benefit
plan, or any action taken pursuant to the terms of any such plan, that
materially reduces Bernstock's opportunity to receive benefits under such plan;
(E) a transfer or relocation of the site of Bernstock's
employment immediately preceding the Change in Control, without his express
written consent, to a location
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more than fifty (50) miles distant therefrom, or that is otherwise an
unacceptable commuting distance from Bernstock's principal residence at the date
of the Change in Control; or
(F) a requirement that Bernstock undertake business travel to
an extent substantially greater than his business travel obligations immediately
prior to the Change in Control.
(e) Termination of Employment. If Bernstock has a Termination following
a Change in Control within two (2) years following a Change in Control, the
Company shall, within thirty (30) days, pay to him a lump sum cash payment equal
to the lump sum Actuarial Equivalent of his accrued benefit as of the date of
his Termination Following a Change in Control; provided, however, that for this
purpose, the term Actuarial Equivalent shall have the same meaning as such term
is used in the Qualified Plan as in effect at the date of termination.
(f) Amendment or Termination.
(i) This Section 13 shall not be amended or terminated at any time.
(ii) For a period of two (2) years following a Change in Control,
this Agreement shall not be terminated or amended in any way, nor
shall the manner in which this Agreement is administered be changed
in a way that adversely affects Bernstock's right to existing or
future Company-provided benefits or contributions provided
hereunder, including, but not limited to, any change in, or to, the
eligibility requirements, benefit formulae and manner and optional
forms of payments.
(iii) Any amendment or termination of this Agreement prior to a
Change in Control that (A) was at the request of a third party who
has indicated an intention
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or taken steps reasonably calculated to effect a Change in Control
or (B) otherwise arose in connection with, or in anticipation of, a
Change in Control, shall be null and void and shall have no effect
whatsoever.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
VLASIC FOODS INTERNATIONAL INC.
By:_________________________________
Name:
Title:
____________________________________
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