EXHIBIT 10.72
AMENDED AND RESTATED
2
TERMINATION AGREEMENT
TERMINATION AGREEMENT (the "Agreement"), dated as of this
20th day of February, 1997, by and among SPECIALTY FOODS
ACQUISITION CORPORATION, a Delaware corporation ("SFAC"),
SPECIALTY FOODS CORPORATION, a Delaware corporation ("SFC"), and
▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive"). SFAC and SFC are each sometimes
herein referred to as the "Employers." The Employers and the
Executive are sometimes herein referred to as the "Parties."
WHEREAS, the Executive was employed as Vice President and
General Counsel of SFAC and SFC pursuant to an Executive
Employment Agreement between the Parties effective as of January
1, 1994, as amended (as so amended, the "Executive Employment
Agreement"); and
WHEREAS, it has been agreed by the Parties that, effective
as of the Resignation Date (as herein defined), the employment of
the Executive with SFAC and SFC shall terminate; and
WHEREAS, except as expressly set forth to the contrary in
this Agreement, effective as of the Resignation Date, the Parties
wish to acknowledge termination of the Executive Employment
Agreement and all such relationships contemplated therein, and to
amend and restate certain option agreements that have been
entered into between the Employers and the Executive;
NOW, THEREFORE, in consideration of the promises and
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, the Parties agree as follows:
1. Termination of Employment. The Executive's employment
with the Employers and, except as expressly set forth to the
contrary in this Agreement, the Parties' obligations and rights
under the Executive Employment Agreement, shall terminate
effective as of such date on or about March 15, 1997 as is
mutually agreed to by the Parties (the "Resignation Date"). On
the Resignation Date, the Executive shall submit to the Employers
a letter of resignation in the form of the letter of resignation
set forth as EXHIBIT 1 to this Agreement signed by the Executive.
2. Terms of Termination.
a. Upon the Resignation Date, the Employers shall
promptly pay to the Executive all unpaid Base Salary, as defined
in Section 3 of the Executive Employment Agreement, and provide
the Executive with all benefits and expense reimbursements to
which the Executive is entitled, through and including the
Resignation Date.
b. Commencing on the Resignation Date, the Employers
shall pay to the Executive the sum of $30,260.42 every one-half
month for a term from the date of termination until the first to
occur of (i) the receipt by the Executive of twenty-four (24)
such payments or (ii) until such time as the Executive commences
employment on a full time or substantially full time basis with
another employer; provided, however, that in no event shall the
Executive receive fewer than eight (8) such payments. The
Employers may cause these payments to be made to the Executive
through the normal SFC payroll system.
c. The Employers shall continue health and life
insurance benefits for the Executive and his family for a period
of 12 months after the Resignation Date, provided, however, that
such benefits may be terminated on 30 days written notice to the
Executive once the Executive and his family are eligible to
receive generally comparable benefits from another source.
d. With respect to the subordinated debentures
and common stock of SFAC purchased by the Executive while he
was employed by the Employers, the Parties agree as follows:
(i) as of the date of this Agreement, that
certain Limited Recourse Secured Promissory
Note dated as of June 15, 1995 in the
principal amount of $290,681.28 (the "Note")
is deemed to be in default;
(ii) pursuant to the Note and the related Pledge
Agreement, the Executive is delivering to
SFAC as of the date of this Agreement certain
pledged security which consists of (x)
Discount Debentures in the principal amount
of $245,635.97 with a current accreted value
of $151,711.96, and (y) 191,233 shares of
common stock with a value of $138,969.32 if
valued at Founder's Cost of .726703211 per
share;
(iii)the Note shall be marked "CANCELLED" and
returned to the Executive; and
(iv) the remaining 298,157 shares of common stock
of SFAC outstanding in the name of the
Executive shall be deemed to be fully vested
and shall be returned to the possession of
the Executive.
e. The Employers and the Executive acknowledge that,
effective as of the Resignation Date, that certain Non-Qualified
Stock Option Agreement dated as of February 1, 1995 and that
certain Performance Stock Option Agreement dated February 1,
1994, each between SFAC and the Executive are each hereby
declared to be null and void and without future effect. Upon the
Resignation Date, that certain Non-Qualified Stock Option
Agreement dated as of February 1, 1994 shall be amended and
restated and reissued to the Executive in the form of the Amended
and Restated Option Agreement set forth as EXHIBIT 2 to this
Agreement.
f. Upon the first to occur of (i) the closing of the
sale by the Employers of the assets used by subsidiaries of the
Employers in the conduct of their Northwest baking operations,
and (ii) the closing of the sale by the Employers of the assets
used by subsidiaries of the Employers in the conduct of their San
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Bread baking operations, the Employers shall pay
to the Executive the sum of $100,000.00; provided, that the
closing of any such sale must occur on or before the forty-fifth
(45th) day after the Resignation Date for such payment to be due
to the Executive. Upon the closing of the sale of the second of
such businesses, the Employers shall pay to the Executive the sum
of $147,916.68; provided, that the closing of such sale must
occur on or before the forty-fifth (45th) day after the
Resignation Date for such payment to be due to the Executive.
Notwithstanding the above, in the event that the Executive
continues to perform his employment duties through the
Resignation Date in a manner consistent with his past
performance, including, without limitation, the management of the
sale of the two baking businesses set forth above, but that,
because of a so called second request under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1976, as amended, the sale of the San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Bread baking operations does not occur by the Resignation Date,
then the Parties will negotiate in good faith to reach agreement
on an alternative compensation arrangement for the Executive that
is fair to the Executive and to the Employers, as mutually agreed
to by the Parties.
g. All payments made to the Executive under
subparagraphs (a), (b) and (f) above shall be subject to such
deductions or amounts withheld as required by applicable laws and
regulations.
3. Releases. In consideration for the promises made by
the Parties and the payments to be made by the Employers pursuant
to this Agreement, the Parties agree to the following releases,
effective as of the Resignation Date:
(a) The Executive hereby releases and forever
discharges the Employers and any parent, subsidiary, affiliate or
other entity related to the Employers, as well as its or their
predecessors, successors and assigns, shareholders, directors,
officers, agents, representatives and employees, past, present
and future, individually and collectively, from any and all
claims, demands, causes of actions or liabilities which the
Executive ever had or now has, or which his heirs, executors or
administrators hereafter can, shall or may have upon or by reason
of any matter, cause or thing whatsoever, whether known or
unknown, arising out of or in any way connected with his
employment with, and/or termination of employment from the
Employers; provided, however, that nothing herein shall in any
way prohibit the Executive from enforcing the terms of this
Agreement. Without limiting the foregoing, this release applies
to any right which the Executive has or may have to commence or
maintain a charge or action alleging discrimination under any
federal, state or local statute or order, including Title VII of
the Civil Rights Act of 1964, as amended, the Age Discrimination
in Employment Act of 1967, as amended and the Employee Retirement
Income Security Act of 1974, as amended and any right the
Executive has or may have to commence or maintain a claim or
action alleging wrongful termination, breach of contract,
commission of tort, or any combination thereof, whether based in
law or in equity. The Executive agrees not to make, assert or
maintain any charge, claim, demand or action which would be
covered by this release. In addition, the Executive represents
that no incident has occurred during his employment with the
Employers that could form the basis for any claim by the
Executive against the Employers under the so-called Worker's
Compensation Laws of any jurisdiction.
(b) The Employers individually, and the Employers on
behalf of any parent, subsidiary, affiliate or other entity
related to the Employers, as well as its or their predecessors,
successors and assigns, shareholders (other than shareholders of
SFAC), directors (in their capacity as directors of SFAC and
SFC), officers, agents, representatives and employees, past,
present and future, hereby release and forever discharge the
Executive, his heirs, executors, administrators, agents and
assigns, individually and collectively, from any and all claims,
demands, causes of action or liabilities, which the Employers
ever had, or now have, or which their successors and assigns can,
shall or may have upon or by reason of any matter, cause or thing
whatsoever, whether known or unknown, arising out of or in any
way connected with the Executive's employment with, and/or
termination of employment from the Employers, other than any
possible violation by the Executive of Sections 5, 6 or 7 of the
Employment Agreement, provided, however, that nothing herein
shall in any way prohibit SFC from enforcing the terms of this
Agreement. The Employers agree not to make, assert or maintain
any charge, claim, demand or action which would be covered by
this release.
4. Non-Disparagement. The Parties agree that they
shall not, directly or indirectly, individually or in concert
with others, criticize, disparage, slander, defame or engage in
any conduct or make any statement calculated or likely to have
the effect of undermining, disparaging or otherwise reflecting
poorly upon the other, his or its abilities or his or its
reputation. For purposes of this Section, the term "Parties"
will be deemed to include, for SFAC and SFC, their directors and
officers, and the directors and officers of their affiliates.
5. Confidentiality/Press Releases. The Parties agree
that they will not issue a press release concerning the
Executive's termination of employment with the Employers unless
the text and the timing thereof has been approved in writing by
all Parties; provided , however, that (i) the Executive's written
consent shall not be unreasonably withheld or delayed, and (ii)
nothing herein shall prevent the Employers from making any
announcement that they are required to make under applicable law
or the rules of any entity with whom their securities are
registered.
6. Severability. The provisions of this Agreement shall
be severable. The unenforceability or invalidity of any one or
more provisions, clauses or sentences hereof shall not render any
other provision, clause or sentence herein contained
unenforceable or invalid. The portion of the Agreement which is
not invalid or unenforceable shall be considered enforceable and
binding on the Parties and the invalid or unenforceable
provision(s), clause(s) or sentence(s) shall be deemed excised,
modified or restricted to the extent necessary to render the same
valid and enforceable, and this Agreement shall be construed as
if such invalid or unenforceable provision(s), clause(s) or
sentence(s) were omitted, modified or restricted.
7. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Illinois applicable to agreements made and to be performed
entirely in Illinois; provided, however, that all provisions of
this Agreement governing the repurchase of the Securities and
rights thereto and therein shall be governed by and construed in
accordance with the laws of the State of Delaware.
8. Survival of Certain Provisions. In consideration for
the payment made by the Employers to the Executive hereunder, the
Parties acknowledge and agree that Sections 5, 6 and 7 of the
Executive Employment Agreement are not affected in any way by
this Agreement, except as expressly set forth herein, and shall
continue in full force and effect.
9. Attorney Fees. If the Employers, on the one hand, or
the Executive, on the other hand, breach the terms of this
Agreement, the breaching party shall indemnify the non-breaching
party against all liability, costs and expenses, including
reasonable attorneys' fees, related to such breach.
10. Entire Agreement. This Agreement constitutes the
entire agreement between the Parties concerning the subject
matter hereof, and supersedes all prior and contemporaneous
agreements, if any, between the Parties relating to the subject
matter hereof; provided, however, that this Section shall not be
deemed to apply to any provision of the Executive Employment
Agreement referred to or incorporated herein which, by the terms
of Section 8 hereof, shall survive the execution and delivery of
this Agreement.
11. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Employers and their
successors and assigns, and shall be binding upon and inure to
the benefit of the Executive and his legal representatives and
assigns.
12. Resignation. On the Resignation Date, the Executive
shall submit a resignation in form acceptable to the Parties from
all directorship and officer positions held with the Employers or
any of their subsidiaries.
13. Non-Waiver of Right to Indemnification. The provisions
of Section 3 hereof notwithstanding, nothing in this Agreement
shall be construed as a release or waiver of any right that the
Executive may have to indemnification pursuant to (i) the
Certificate of Incorporation or the By-Laws of the Employers or
any of its subsidiaries or affiliates, or (ii) any agreement
pursuant to which the Executive is entitled to indemnification
for any claims by parties other than the Employers arising out of
the Executive's service as an officer or director of the
Employers or any of their subsidiaries or affiliates.
14. Counterparts. This Agreement may be executed in one or
more counterparts (including by means of faxed signature pages),
any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute
one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this
Termination Agreement as of the date above written.
SPECIALTY FOODS ACQUISITION
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President & Chief
Executive Officer
SPECIALTY FOODS CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President & Chief Executive Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
f:\users\johngrp\employ\kellyx.doc
EXHIBIT 2
SPECIALTY FOODS ACQUISITION CORPORATION
1994 STOCK OPTION PLAN
Date of Grant: 2/1/94
Expiration Date: 2/1/04
Grantee: ▇▇▇▇ ▇. ▇▇▇▇▇
No. of Shares: 132,500
Option Price/Share: $0.7267032211
Option Control Number: 0001 (Amended and Restated)
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
AMENDED AND RESTATED STOCK OPTION AGREEMENT dated as of
February 1, 1994, as Amended and Restated as of _____, __, 1997,
by and between SPECIALTY FOODS ACQUISITION CORPORATION, a
Delaware corporation (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Grantee").
All words and phrases not otherwise expressly defined herein
shall have the same meanings as are ascribed to such words and
phrases in the Specialty Foods Acquisition Corporation 1994 Stock
Option Plan (the "Plan").
The Committee has determined that the objectives of the Plan
will be furthered by granting to the Grantee an option pursuant
to the Plan.
In consideration of the foregoing and of the mutual
undertakings set forth in this Amended and Restated Option
Agreement, the Company and the Grantee agree as follows:
Section 1. Grant of Option. Subject to the provisions
of the Plan and this Amended and Restated Option Agreement, the
Company hereby grants to the Grantee under the Plan a non-
qualified stock option to purchase one hundred thirty two
thousand, five hundred (132,500) shares of Stock at a purchase
price of $0.726703211 per share.
Section 2. Exercisability. The option is exercisable
with respect to 100% of the shares of Stock subject thereto.
Section 3. Method of Option Exercise. The option or any
part thereof may be exercised only by giving to the Company
written notice of exercise in the form attached to this Amended
and Restated Option Agreement or in such other form as is
prescribed by the Committee. Full payment of the purchase price
shall be made on the option exercise date by certified or
official bank check or, in the Committee's discretion, by
personal check (subject to collection), payable to the Company,
or delivery of shares of Stock already owned by the Grantee for
at least six months prior to the option exercise date. The
Grantee shall have no right to pay the option exercise price, or
to receive shares of Stock with respect to an option exercise,
prior to the option exercise date. For purposes of this Amended
and Restated Option Agreement, the "option exercise date" shall
be deemed to be the first business day immediately following the
date written notice of exercise is received by the Company.
Section 4. Termination of Employment. Notwithstanding
anything in the Plan to the contrary, the option granted to the
Grantee pursuant to this Amended and Restated Option Agreement
shall not terminate upon the Grantee's termination of employment
with SFAC, regardless of the reason.
Section 5. Withholding Tax Requirements. Shares of
Stock deliverable to the Grantee upon exercise, pursuant to the
terms of the Plan and this Amended and Restated Option Agreement,
shall be subject to tax withholding as provided in Section 10 of
the Plan. Subject to the Committee's consent, the Grantee may
elect to satisfy all or part of such requirements by delivery of
unrestricted shares of Stock owned by the Grantee as provided in
Section 10.2 of the Plan.
Section 6. Plan Provisions to Prevail. Except as set
forth in Section 4(a) hereof, this Amended and Restated Option
Agreement shall be subject to all of the terms and provisions of
the Plan, which are incorporated hereby and made a part hereof,
including, without limitation, the provisions of Section 8 of the
Plan (generally relating to consents required by securities and
other laws) and Section 11 of the Plan (generally relating to the
effects of certain reorganizations and other extraordinary
transactions). Except as set forth in Section 4(a) hereof, in the
event there is any inconsistency between the provisions of this
Amended and Restated Option Agreement and the Plan, the
provisions of the Plan shall govern.
Section 7. Grantee's Acknowledgments. By entering into
this Amended and Restated Option Agreement, the Grantee agrees
and acknowledges that (a) he has received and read a copy of the
Plan, including Section 14.3 of the Plan (generally relating to
waivers of claims to continued exercisability of awards, damages
and severance entitlements related to non-continuation of
awards), and accepts this option upon all of the terms thereof,
and (b) no member of the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or
any award thereunder or under this Amended and Restated Option
Agreement.
Section 8. Non-Transferability. No option granted to
the Grantee under the Plan or this Amended and Restated Option
Agreement shall be assignable or transferable by the Grantee
(whether by operation of law or otherwise and whether voluntarily
or involuntarily), other than by will or by the laws of descent
and distribution. During the lifetime of the Grantee, all rights
granted to the Grantee under the Plan or under this Amended and
Restated Option Agreement shall be exercisable only by the
Grantee.
Section 9. Notices. Any notice to be given to the
Company hereunder shall be in writing and shall be addressed to
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: General Counsel or at such other address as the Company
may hereafter designate to the Grantee by notice as provided
herein. Any notice to be given to the Grantee hereunder shall be
addressed to the Grantee at the address set forth below or at
such other address as the Grantee may hereafter designate to the
Company by notice as provided herein. Notices hereunder shall be
deemed to have been duly given when received by personal delivery
or by registered or certified mail to the party entitled to
receive the same.
Section 10. Successors and Assigns. This Amended and
Restated Option Agreement shall be binding upon and inure to the
benefit of the parties hereto and the successors and assigns of
the Company and, to the extent set forth in the Plan, the heirs
and personal representatives of the Grantee.
Section 11. Governing Law. This Agreement shall be
governed by the laws of the State of Illinois applicable to
agreements made and to be performed entirely within such State.
Section 12. Modifications to Agreement. This Amended and
Restated Option Agreement may not be altered, modified, changed
or discharged, except by a writing signed by or on behalf of both
the Company and the Grantee.
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Option Agreement as of the date and year
first above written.
SPECIALTY FOODS ACQUISITION
CORPORATION
By: ___________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President & Chied
Executive Officer
__________________________
▇▇▇▇ ▇. ▇▇▇▇▇ (Grantee)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
NOTICE OF EXERCISE
Specialty Foods Acquisition Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sir or Madam:
I have read the SPECIALTY FOODS ACQUISITION CORPORATION 1994
STOCK OPTION PLAN.
1. Name (Please Print)
_______________________________________
EIN (Social Security Number or
Employer Identification Number
if estate)
_______________________________________
Operating Company
_______________________________________
Company Location
_______________________________________
(City and State or County)
Company Telephone Number
_______________________________________
Title
_______________________________________
Citizenship
_______________________________________
Home Address (Include Country
_______________________________________
if not USA)
_______________________________________
Home Telephone Number
_______________________________________
2. I would like to exercise the following Options:
Date of Option # of Option
Purchase
Type Grant* Control No. Shares Price
Price**
________ __/__/__ ________ ________ ________ ________
________ __/__/__ ________ ________ ________ ________
________ __/__/__ ________ ________ ________ ________
* Insert month, day and year.
** Multiply # of Shares by Option Price.
3. Please register the shares which I am purchasing as
indicated below (shares will be registered only in the name
of the Optionee or in the name of the Optionee and that of
his or her spouse as joint tenants).
____________________________________________________________
_____________
(Fill in name or names)
4. Please issue stock certificates (no more than two per option
exercised) in the following denominations: (Note: Only one
certificate for each option exercised may be for less than
100 shares.)
Total # of
Shares
________ certificate(s) for ________ shares each
_______________
________ certificate(s) for ________ shares each
_______________
TOTAL: _______________
5. I am paying the Purchase Price by (please check as
applicable).
Check*
Wire Transfer
* Only Certified Check, Cashier's Check or a Broker's Check.
Make check payable to SPECIALTY FOODS ACQUISITION
CORPORATION.
6. I will promptly pay the amount that you advise me is
required for applicable withholding taxes. I understand
that you may not release the certificates representing the
shares I have purchased unless such payment is made or
arrangements satisfactory to the Company for such payment
have been made.
__________________________________
(Signature)
__________________________________
(Date)