Exhibit 10.23
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT is made as of November 18, 1998 by and between
Bagcraft Acquisition, L.L.C. (the "Company") and Xxxx Arduino (the "Executive").
The parties hereto, intending to be legally bound hereby, agree as follows:
1. Position and Compensation. The Executive currently is serving as an
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executive officer of the Company and is receiving the following compensation
(the "Compensation") for his services: (a) a base salary (which amount may be
increased as the Company may determine and such increased rate of base salary
shall thereafter constitute the Executive's base salary for all purposes of this
Agreement), (b) an annual performance bonus (in accordance with the Company's
Executive Incentive Bonus Plan then in effect), and (c) participation in all of
the Company's employee benefits plans, including retirement and pension plans,
life insurance plans, health, dental and medical plans which are, from time to
time, made available by the Company to its executive officers, subject to the
terms of such plans.
2. Compensation Upon Termination. The Executive shall be entitled to the
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following Compensation from the Company upon termination of employment:
(a) Upon "Resignation" or Termination for "Cause". In the event of
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termination of the Executive's employment upon "Resignation" or termination for
"Cause", the Executive shall be entitled to receive the Compensation specified
in Section 1 through the date of termination plus any unpaid performance bonus
for any prior fiscal year.
(b) Upon Termination "Without Cause" or for "Good Reason". In the
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event that the Executive's employment is terminated by the Company "Without
Cause" or by the Executive for "Good Reason", then the Executive shall be
entitled to receive: (i) Compensation due the Executive through the date of
termination (including, without limitation, any unpaid performance bonus for the
prior fiscal year), and (ii) a lump sum payable on the date of termination equal
to one-half of the Executive's base salary then in effect and (iii) the
continuation of the benefits described in Section 1(c) for a period of one (1)
year after the date of termination.
3. Definitions. For purposes of this Agreement, the terms "Cause",
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"Without Cause", "Resignation" and "Good Reason" shall have the meaning set
forth in Exhibit A attached hereto.
4. No Mitigation. The Executive shall not be required to mitigate the
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amount of any payment provided for in this Agreement in connection with or
following termination of employment by
seeking other employment or otherwise, nor shall the amount of any Compensation
provided for herein be reduced by any compensation earned by the Executive as
the result of employment by another employer after termination of the
Executive's employment hereunder.
5. Miscellaneous.
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(a) Successors; Binding Agreement. In the event of any merger,
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consolidation or transfer of assets, the provision of this Agreement shall bind
and inure to the benefit of the surviving or resulting corporation, or the
corporation to which such assets have been transferred, as the case may be. The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, by written agreement, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. The Company's failure to obtain such agreement prior to the effectiveness
of any such succession shall entitle the Executive to terminate his employment
hereunder for Good Reason.
(b) Attorney's Fees. All reasonable legal fees and costs incurred by
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the Executive in connection with the resolution of any dispute or controversy
under or in connection with this Agreement shall be reimbursed by the Company
promptly upon the Executive's incurrence thereof, unless the dispute or
controversy is finally determined in favor of the Company.
(c) Governing Law. This Agreement shall be governed, construed,
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interpreted, and enforced in accordance with the substantive laws of the State
of Illinois.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
BAGCRAFT ACQUISITION, L.L.C.
By:________________________________
/s/ Xxxx Arudino
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Xxxx Arduino
Exhibit A
to
Severance Agreement
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The term "Cause" shall mean and include (a) chronic alcoholism or drug
addition, (b) deliberate misappropriation of any material amount of money or
other assets or properties of the Company or any affiliate or successor thereof,
(c) except where the nonperformance is caused by the illness or other similar
incapacity or disability of the Executive, gross and continuing neglect in the
substantial performance of duties reasonably assigned to the Executive that is
not corrected promptly upon receipt by the Executive of written notice delivered
at the direction of the Company specifically identifying the manner in which it
is alleged that the Executive has not substantially performed his duties, (d)
any willful and material breach of any of the terms of this Agreement except
where the breach is caused by the illness or other similar incapacity or
disability of the Executive, (e) conviction of a misdemeanor involving moral
turpitude or conviction of a felony, (f) death of the Executive, or (g) a
permanent disability that entitles the Executive to receive benefits under the
applicable Company disability plan.
The term "Without Cause" shall mean termination by the Company for any
reason other than "Cause".
The term "Good Reason" shall mean the continuation of any of the
following (without the Executive's express prior written consent) after written
notice provided by the Executive and the failure by the Company to remedy such
event or condition within thirty (30) days after receipt of such notice:
(a) A reduction in the Executive's base salary, as in effect pursuant
to Section 1(a);
(b) Failure by the Company to pay to the Executive any bonus which is
payable pursuant to Section 1(b);
(c) A failure by the Company to provide, on terms no less favorable to
the Executive than the terms offered to other similar executives of the Company,
any benefit or compensation plan (including any pension, profit sharing, life
insurance, health, accidental death or dismemberment or disability plan), or any
substantially similar benefit or compensation plan, which has been made
available to such other similar executives; provided, however, that nothing in
Section 1(c) shall be construed to mean that the Company shall be constrained
from amending or eliminating any benefit or compensation plan as such is applied
to the Executive and to other similar executives of the Company;
(d) Failure by the Company to obtain, in accordance with Section 5(a),
the written agreement of any successor in
interest to the business of the Company to assume and perform the obligations of
the Company under this Agreement; or
(e) Any other material breach of this Agreement by the Company.
The term "Resignation" shall mean a termination by the Executive for
any reason other than "Good Reason".
