Re: Resignation and Separation Agreement
Exhibit 10.01
000
Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx,
XX 00000
T: (000)
000-0000
F: (000)
000-0000
Xxxxxx 0,
0000
Xxxxxx X.
Xxxxxxx
President
and Chief Executive Officer
000
Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxxx,
Xxx Xxxxxx 00000
Dear
Xxxxxx,
This
letter is to memorialize the agreement between you and Ascendia Brands, Inc.
(the “Company”)
regarding your resignation and separation from employment with the Company (the
“Letter
Agreement”).
We
recognize and agree that your employment is pursuant to the Employment Agreement
entered into between you and the Company on or about February 9, 2007, as
amended by the Amendment No. 1 to Employment Agreement dated on or about May 16,
2008 (the “Employment
Agreement”).
You have
informed the Company of your intent to resign as Director, Chief Executive
Officer and President, and employee of the Company and its subsidiaries,
provided that both you and the Company comply with the terms of this Letter
Agreement. The Company, for itself and its subsidiaries, accepts your
resignation and agrees to waive the twenty-day notice requirement of Section
5(e) of the Employment Agreement, provided that both you and the Company comply
with the terms of this Letter Agreement.
1. Effective Date and
Resignation Date
This
Letter Agreement shall be effective as of the date that the United States
Bankruptcy Court enters an order (the “Assumption Order”)
allowing the Company to assume this Letter Agreement pursuant to 11 U.S.C. § 365
(the “Effective
Date”). If the Court does not enter an Assumption Order, this
Letter Agreement shall be null and void and the Employment Agreement shall
remain in effect except in the event the Employment Agreement is rejected by the
Company. You have agreed that upon entry of the Assumption Order, you
will waive all objections to the Company’s rejection of the Employment Agreement
pursuant to 11 U.S.C. § 365. On the Effective Date, the date of your
resignation shall be retroactive to the date the Company files (or has filed) a
petition for relief with any United States Bankruptcy Court (the “Resignation
Date”).
Xxxxxx X. Xxxxxxx
August 3, 2008
Page 2
2. The Company’s
Obligations
We have
agreed to:
|
i.
|
enable
you to participate in comparable health insurance coverage for you and
your family to your pre-resignation coverage through and to the extent
required by the Continued Health Coverage for Family (“COBRA”) program
until the earlier of (a) the date that the Company ceases to provide
health insurance for employees or (b) the date the COBRA coverage expires
pursuant to its terms and the law;
|
|
ii.
|
reimburse
you for all company-related expenses you have incurred up to the
Resignation Date;
|
|
iii.
|
allow
you to keep the IBM ThinkPad laptop computer in your possession which was
previously provided to you by the Company, provided that you shall deliver
such computer to the Company so that all proprietary files and
licensed software may be removed;
|
|
iv.
|
allow
you to keep the Blackberry in your possession which was previously
provided to you by the Company, although usage of same will be at your
expense following the Resignation Date; and provided further that the
Company shall be entitled to remove all content from the
Blackberry;
|
|
v.
|
comply
with and be bound by the Mutual Non-Disparagement Agreement, as defined
below; and
|
|
vi.
|
continue
to provide Directors and Officers liability insurance coverage for you
at not less than the coverage levels provided to the other
Directors and Officers of the Company, with such coverage continuing until
July 28, 2014.
|
3. Your
Obligations
Upon the
Effective Date, you shall waive all rights you have under the Employment
Agreement, except those rights explicitly retained pursuant to this Letter
Agreement, and you and the Company shall comply with and be bound by the Mutual
Non-Disparagement Agreement, as defined below. In additions, the
provisions of Sections 6(a) and 6(b) of the Employment Agreement shall survive
and remain in full force and effect.
4. Mutual Non-Disparagement
Agreement
The
Company, its officers and directors will not make, and the Company shall use
reasonable efforts to cause its agents, advisors, including Xxxx Xxxxx Advisory
Group LLC (“CMAG”), and attorneys to refrain from making, any disparaging
statements about you, your employment with the Company, your resignation, the
termination of your employment, or any other dealings of any kind between you
and the Company, to any third party, specifically
Xxxxxx X. Xxxxxxx
August 3, 2008
Page 3
including,
without limitation, any past, present or prospective employee of the Company,
any customer or prospective customer of the Company, any prospective employer of
you, or any representative of any media. You agree that you will not
make any disparaging statements about the Company, its agents, officers,
directors, advisors, including CMAG, and attorneys to any third party,
specifically including, without limitation, any past, present or prospective
employee of the Company, any customer or prospective customer of the Company,
any supplier or vendor or prospective supplier or vendor of the Company, any
prospective purchaser of the Company or any of its assets, or any representative
of any media. This paragraph shall not apply to truthful
communications between you and your spouse, immediate family and attorneys and
advisors on the one hand and between the Company and its attorneys and advisors
on the other hand, any truthful disclosure or statement relating to any
proceeding to enforce the terms of this Letter Agreement, or as expressly
authorized by law or lawful process or proceeding. The terms of this
paragraph shall be referred to as the “Mutual Non-Disparagement
Agreement.”
5. Mutual Approval of Press
Release
If the
Company issues a press release which mentions your resignation, this Letter
Agreement, your separation from the Company, or any other issue related to your
employment by the Company or the termination thereof, the Company shall provide
you with a draft of such language and you shall have the right to review and
provide comments on the language in any such press release. To
the extent such comments are timely, reasonable, accurate and consistent with
any disclosure obligations the Company may have, the Company agrees to
incorporate such comments.
Please
confirm your agreement to the foregoing by signing a copy of this letter and
returning the same to me.
Sincerely,
By: /s/ Xxxxxx X.
Xxxxxxxxx
Xxxxxx X.
Xxxxxxxxx
Vice President &
General Counsel
Confirmed
and agreed to as of the 4th day of August, 2008
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx X.
Xxxxxxx
