Exhibit 10.1
Separation and General Release Agreement
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This Separation and General Release Agreement (the "Agreement") is made
as of this 30th day of September, effective as of September 7, 2005, by and
among Birds Eye Foods, Inc. (formerly known as Agrilink Foods, Inc.) (the
"Company"), Birds Eye Holdings LLC (formerly known as Agrilink Holdings LLC)
("Holdings"), Birds Eye Holdings Inc. (formerly known as Agrilink Holdings Inc.)
("Birds Eye") and Xxxxxx X. Xxxxxx ("Executive" and, together with the Company,
Holdings and Birds Eye, the "Parties").
WHEREAS, Executive's employment with the Company, by agreement of the
Parties, will end on September 30, 2005 (the "Separation"); and
WHEREAS, the Parties' rights and obligations with respect to
Executive's equity interests in Holdings are set forth in the Management Unit
Subscription Agreement by and between Holdings and Executive, dated as of August
19, 2002 ("Holdings Unit Subscription Agreement") and in Vestar/Agrilink
Associates II Holdings, LLC ("VAA II") are set forth in the Subscription
Agreement by and between VAA II and Executive, dated as of August 19, 2002 (the
"VAA II Unit Subscription Agreement"); and
WHEREAS, Executive's Separation from the Company is in part governed by
that certain Supplemental Executive Retirement Agreement, dated as of July 1,
2000, as amended on July 19, 2002, by and between the Company and Executive (the
"SERP") and that certain Salary Continuation Agreement, dated as of August 22,
2001, by and between the Company and Executive (the "SCA" together with the
Holdings Unit Subscription Agreement, the VAA II Unit Subscription Agreement and
the SERP, the "Executive Agreements"); and
WHEREAS, Executive agrees to repay to the Company all outstanding
principal and accrued interest under that certain Recourse Promissory Note
("Promissory Note"), dated as of August 19, 2002, made by Executive in favor of
the Company for the purchase of Class C Units and Class D Units in Holdings; and
WHEREAS, the Parties desire to enter into this Agreement in order to
set forth the definitive rights and obligations of the Parties in connection
with the Separation.
NOW, THEREFORE, in consideration of the mutual covenants, commitments
and agreements contained herein, and for other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the Parties
intending to be legally bound hereby agree as follows:
1. Acknowledgment of Separation. The Parties acknowledge and agree that the
Separation is effective as of September 30, 2005. With respect to any public
release regarding the Separation, the Parties agree to characterize the
Separation as a resignation by Executive or as otherwise agreed to by the
Parties.
2. Resignation of Office and Certification of Securities and Exchange
Commission Filing. Effective as of September 7, 2005, Executive voluntarily
resigned his position as
President and Chief Executive Officer of the Company, and from any and all other
offices (including with respect to any boards of directors or managers) which he
holds at the Company, Holdings and Birds Eye (collectively, the "Birds Eye
Group"), except for the position of "Principal Executive Officer" (as defined
under the Xxxxxxxx-Xxxxx Act of 2002 ("SOX")), which he held with respect to the
Company until September 30, 2005. Executive acknowledges and agrees that as
September 30, 2005, Executive voluntarily resigns from his position as Principal
Executive Officer of the Company.
3. Executive's Acknowledgment of Consideration. Executive specifically
acknowledges and agrees that certain of the obligations created and payments
made to him by the Company under this Agreement are promises and payments to
which he is not otherwise entitled under any law or contract and are made, in
part, in consideration for Executive's agreement to provide consulting services,
if requested by the Company and execute the release contemplated by this
Agreement.
4. Payments Upon and After the Separation.
(a) Final Pay. On the next regular payroll date following September
30, 2005, Executive shall receive a lump sum payment of all
then-outstanding final wages and his earned unused 22 hours of
vacation/paid-time off, minus applicable federal, state and local
tax withholdings (collectively, Tax Withholdings"), for services
performed for the Company and its subsidiaries through and
including September 30, 2005.
(b) Severance Entitlements under SERP and SCA. The Parties
acknowledge and agree that Executive will be provided exclusively
with the following severance and supplemental retirement benefits
under the SERP and SCA, payable in accordance with the terms and
conditions of such agreements;
(i) For two years following the date hereof, an annual amount
equal to $834,000. Such amount shall be payable in monthly
pro rata payments minus all applicable Tax Withholdings
beginning on the next regular payroll date of November 1,
2005 and continuing on the same basis through October 1,
2007 (such amounts to be known herein as the "Severance
Payment").
(ii) The Company and Executive acknowledge that pursuant to the
terms and conditions of the SERP, in the event of
Executive's termination prior to January 1, 2009, Executive
would be entitled to receive a pro-rata portion of the full
retirement benefit payable under the SERP of $41,666.67 per
month. Notwithstanding Executive's termination as of the
date hereof and the terms of the SERP, effective as of
January 1, 2009, Executive will be entitled to receive his
full retirement benefit of $41,666.67 per month ("Full
Retirement Payment"), minus applicable Tax Withholdings,
which amounts shall be (except as contemplated by the
immediately preceding sentence), payable as contemplated by
and in accordance with the SERP.
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(iii) For two years following the date hereof, participation in
the Company's health insurance, life insurance and
disability insurance benefit plans (subject to the terms and
conditions of such benefit plans), which are from time to
time provided by the Company and that are generally provided
to Company executives on the same terms and conditions
offered to other Company salaried employees generally. In
the event the terms and conditions of the Company's welfare
benefit plans prohibit Executive's participation in such
plans, the Parties hereby agree to negotiate in good faith
to establish alternative welfare benefit arrangements. The
health insurance coverage provided herein runs concurrently
with the Company's COBRA obligations. As required by the
continuation coverage provisions of Section 4980B of the
U.S. Internal Revenue Code of 1986, as amended ("Code"),
Executive has been provided with a notice of his COBRA
rights.
5. Equity Interests and Repayment of Promissory Note
(a) Holdings and the Executive acknowledge and agree that pursuant to
the Holdings Unit Subscription Agreement the Company has the
right to repurchase Executive's vested Class C Units and vested
Class D Units of Holdings at Fair Market Value (as defined in the
Holdings Unit Subscription Agreement) following the date hereof.
In consideration hereof, however, the Company hereby agrees to
waive and not exercise such right, and to permit Executive to
retain his vested units (the "Vested Units") in accordance with
the terms of the Holdings Unit Subscription Agreement and the
other agreements to which Executive is a party that govern his
ownership thereof.
(b) The Company hereby exercises its call right pursuant to Section
5.1 of the Holdings Unit Subscription Agreement to repurchase
Executive's unvested Class C Units (590.1598 units) and unvested
Class D Units (1,915.9678 units) in Holdings (collectively, the
"Unvested Units") at cost for a purchase price of $59,015.98 and
$23,949.60, respectively (in the aggregate, the "Repurchase of
Unvested Units Amount"). The Company shall be entitled to offset
the Repurchase of Unvested Units Amount against the outstanding
principal and accrued interest under the Promissory Note, which
amount of outstanding principal and accrued interest the parties
acknowledge is equal to $71,490.66 as of September 30, 2005.
Executive agrees to take such actions and to execute such
documents as may be reasonably required by the Company to
evidence the exercise of its call right to repurchase the
Unvested Units. In connection with such repurchase, Executive
represents and warrants as follows:
(i) Ownership. All of Executive's Unvested Units are owned of
record and beneficially by Executive, and Executive has good
and marketable title to such Unvested Units, free and clear
of all security interests, claims, liens, pledges, options,
encumbrances, charges, agreements, voting trusts, proxies
and other arrangements or restrictions whatsoever
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("Encumbrances"). All of such Unvested Units are validly
issued, fully paid and nonassessable. Executive hereby
transfers to the Company good and marketable title to such
Unvested Units, free and clear of all liens, claims, charges
and encumbrances.
(ii) Authorization. This Agreement has been duly authorized,
executed and delivered by Executive and constitutes a valid
and legally binding obligation of Executive, enforceable in
accordance with its terms.
(iii) Conflicts. The execution, delivery and performance of this
Agreement by Executive does not conflict with, violate or
result in the breach of, or create any lien or encumbrance
on his Unvested Units pursuant to, any agreement,
instrument, order, judgment, decree, law or governmental
regulation to which such Executive is a party or is subject
or by which his Unvested Units are bound, except for federal
and state securities laws.
(c) Holdings and the Executive acknowledge and agree that Executive
is entitled to retain his Preferred and Class A Units in VAA II
in accordance with the terms of the VAA II Unit Subscription
Agreement.
(d) Executive acknowledges and agrees that he will repay all
principal and accrued interest outstanding under the Promissory
Note in the event any such amount has not already been offset by
the Company against the Repurchase of Unvested Units Amount
pursuant to paragraph 5(b) of this Agreement.
6. Confidential Information; Non-Competition; Non-Solicitation
(a) Confidential Information. Executive acknowledges that the
information, observations and data obtained by him concerning the
business and affairs of the Birds Eye Group and their
subsidiaries during the course of his employment with the Birds
Eye Group and their subsidiaries, or that may be obtained in
connection with his assistance and cooperation with the Birds Eye
Group as set forth in paragraph 11 of this Agreement, is the
property of the Birds Eye Group. Executive agrees that he will
not, directly or indirectly disclose to any unauthorized person
or use for his own account any of such information, observations
or data which is of a confidential or proprietary nature
("Confidential Information") without the Company's written
consent, unless, and to the extent, that (i) the aforementioned
matters become generally known to and available for use by the
public other than as a result of Executive's acts or omissions to
act, or (ii) he is required to do so by order of a court of
competent jurisdiction (by subpoena or similar process), in which
event Executive shall reasonably cooperate with the Birds Eye
Group in connection with any action by the Birds Eye Group to
limit or suppress such disclosure.
(b) Non-Competition and Non-Solicitation. Executive expressly
acknowledges and reaffirms his understanding of and obligations
under the provisions of
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Section 2, Section 2.2 and Section 7 of the SCA, SERP and the
Holdings Unit Subscription Agreement, respectively.
7. General Release and Waiver
(a) Severance Benefits. Executive acknowledges and agrees that the
payment of the Full Retirement Payment and the Severance Payment,
the retention of the Vested Units and the continuation of certain
benefits contemplated by the terms of this Agreement
(collectively, the "Severance Benefits") shall (i) be conditioned
on the expiration of the Revocation Period (as defined in
paragraph 15) and the effectiveness of the terms of the Release
set forth in this paragraph 7, (ii) be conditioned on Executive
not breaching, and Executive's compliance with, the terms of this
Agreement and (iii) not represent any admission or concession by
the Company that such benefits are owed to Executive under any
agreement or obligation that might be asserted by or on behalf of
Executive. Executive understands that if the Executive challenges
the Release or if the Release no longer remains effective, or if
Executive breaches or fails to comply with the terms of this
Agreement, Executive shall be required to return any payments
received by Executive pursuant to the terms of this Agreement.
(b) General Release. Executive, for and on behalf of himself and each
of his heirs, executors, administrators, personal
representatives, successors and assigns, hereby acknowledges full
and complete satisfaction of and fully and forever releases,
acquits and discharges each member of the Birds Eye Group,
together with each of their subsidiaries, parents, divisions,
investors, shareholders, affiliates, predecessors, successors and
assigns , and each of their past and present direct and indirect
stockholders, directors, members, partners, officers, employees,
attorneys, agents and representatives, and their heirs,
executors, administrators, personal representatives, successors
and assigns (collectively, the "Releasees"), from any and all
claims, demands, suits, causes of action, liabilities,
obligations, judgments, orders, debts, liens, contracts,
agreements, covenants and causes of action of every kind and
nature, whether known or unknown, suspected or unsuspected,
concealed or hidden, vested or contingent, in law or equity,
existing by statute, common law, contract or otherwise, which
have existed, may exist or do exist, through and including the
execution and delivery by Executive of this Agreement (but not
including Executive's, Holdings' Birds Eye's or the Company's
performance under this Agreement, the Holdings Unit Subscription
Agreement, the VAA II Unit Subscription Agreement or the
Securityholders Agreement among Holdings and the other parties
thereto), including, without limitation, any of the foregoing
arising out of or in any way related to or based upon:
(i) Executive's application for and employment with the Company,
his being an officer, director or employee of the Company,
or the Separation;
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(ii) any and all claims in tort or contract, and any and all
claims alleging breach of an express or implied, or oral or
written, contract, policy manual or employee handbook;
(iii) any alleged misrepresentation, defamation, interference with
contract, intentional or negligent infliction of emotional
distress, sexual harassment, negligence or wrongful
discharge; or
(iv) any federal, state or local statute, ordinance or
regulation, including but not limited to the Age
Discrimination in Employment Act of 1967, as amended.
(c) Acknowledgment of Waiver. Executive acknowledges and agrees that
he is waiving all rights to xxx or obtain equitable, remedial or
punitive relief from any or all Releasees of any kind whatsoever,
including, without limitation, reinstatement, back pay, front
pay, attorneys' fees and any form of injunctive relief.
(d) Effect of Release and Waiver. Executive understands and intends
that this paragraph 7 constitutes a general release of all claims
except as otherwise provided in paragraph 7(a) above, and that no
reference therein to a specific form of claim, statute or type of
relief is intended to limit the scope of such general release and
waiver.
(e) Waiver of Unknown Claims. Executive expressly waives all rights
afforded by any statute which limits the effect of a release with
respect to unknown claims. Executive understands the significance
of his release of unknown claims and his waiver of statutory
protection against a release of unknown claims.
(f) Disclaimer of Benefits. Executive agrees that he will not be
entitled to or accept any benefit from any claim or proceeding
within the scope of this Agreement that is filed or instigated by
him or on his behalf with any agency, court or other government
entity.
8. Executive's Representations and Covenants Regarding Actions. Executive
represents, warrants and covenants to each of the Releasees that at no time
prior to or contemporaneous with his execution of this Agreement has he
knowingly engaged in any wrongful conduct against, on behalf of or as the
representative or agent of the Company. Executive further represents, warrants
and covenants to each of the Releasees that at no time prior to or
contemporaneous with his execution of this Agreement has he filed or caused or
knowingly permitted the filing or maintenance, in any state, federal or foreign
court, or before any local, state, federal or foreign administrative agency or
other tribunal, any charge, claim or action of any kind, nature and character
whatsoever ("Claim"), known or unknown, suspected or unsuspected, which he may
now have or has ever had against the Releasees which is based in whole or in
part on any matter referred to in paragraph 7(a) above; and, subject to the
Company's performance under this Agreement, to the maximum extent permitted by
law Executive is
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prohibited from filing or maintaining, or causing or knowingly permitting the
filing or maintaining, of any such Claim in any such forum. Executive hereby
grants the Company his perpetual and irrevocable power of attorney with full
right, power and authority to take all actions necessary to dismiss or discharge
any such Claim. Executive further covenants and agrees that he will not
encourage any person or entity, including but not limited to any current or
former employee, officer, director or stockholder of the Company, to institute
any Claim against the Releasees or any of them, and that except as expressly
permitted by law or administrative policy or as required by legally enforceable
order he will not aid or assist any such person or entity in prosecuting such
Claim.
9. No Disparaging Remarks. Executive hereby covenants to each of the Releasees
and agrees that he shall not, directly or indirectly, make or solicit or
encourage others to make or solicit any disparaging remarks concerning the
Releasees (as defined in paragraph 7 of this Agreement), or any of their
products, services, businesses or activities. The Company hereby covenants that
no director or executive officer (while in the employ of the Company) of the
Company, in each case on behalf of the Company, shall not, directly or
indirectly, make or solicit or encourage or authorize others to make or solicit
any disparaging remarks concerning Executive.
10. No Conflict of Interest. Executive hereby covenants and agrees that he
shall not, directly or indirectly, incur any obligation or commitment, or enter
into any contract, agreement or understanding, whether express or implied, and
whether written or oral, which would be in conflict with his obligations,
covenants or agreements hereunder or which could cause any of his
representations or warranties made herein to be untrue or inaccurate.
11. Consulting Services, Assistance, Cooperation, Future Litigation.
(a) Consulting Services. Executive agrees to provide at the sole
discretion of the Company, consulting services to the Company and
its subsidiaries for the shorter of (A) two years following the
date hereof and (B) some period of time following the date hereof
as determined by the Board of Directors of the Company
("Consulting Period"). Executive acknowledges and agrees that he
shall provide his services during the Consulting Period for no
further compensation than that provided under this Agreement and
that during such time, unless he is so designated by the Company
in writing, he will be deemed an independent contractor and shall
not be construed as an agent, partner or employee of Company. As
such, the Parties agree that neither party shall act or represent
or hold itself out as having authority to act as an agent,
partner or employee of the other party, as applicable, or in any
way bind or commit the other party to any obligations.
(b) Executive's Business Assistance and Cooperation. Executive shall
make himself reasonably available to assist and cooperate with
the Company in connection with any internal and/or independent
review of the Company's financial policies, procedures and
activities in respect of all periods during which Executive was
employed by the Company.
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(c) Executive's Litigation Assistance and Cooperation. Executive
acknowledges and affirms his understanding that he may be a
witness in litigation, arbitrations, government or other
administrative proceedings involving the Company, and/or the
other Releasees. Executive hereby covenants and agrees to testify
truthfully in any and all such litigation, arbitrations,
government or administrative proceedings. Executive further
covenants and agrees, upon prior notice and for no further
compensation, to make himself reasonably available to and
otherwise reasonably assist and cooperate with the Company and/or
such other Releasees and with its or their respective attorneys
and advisors in connection with any such litigation or
administrative proceeding. The Company will make all reasonable
efforts to insure that such assistance and cooperation will not
materially interfere with Executive's employment and business
responsibilities.
(d) Executive's Expenses. Executive shall be entitled to
reimbursement of any reasonable pre-approved out-of-pocket
expenses for travel, lodging, meals and other transportation
incurred by him in relation to any cooperation supplied by
Executive as described in this paragraph 11.
12. Confidentiality. Executive asserts that he has not discussed, and agrees
that except as expressly authorized by the Company he will not discuss, this
Agreement or the circumstances of his Separation with any employee of the
Company, and that he will take affirmative steps to avoid or absent himself from
any such discussion even if he is not an active participant therein. EXECUTIVE
ACKNOWLEDGES THE SIGNIFICANCE AND MATERIALITY OF THIS PROVISION TO THIS
AGREEMENT, AND HIS UNDERSTANDING THEREOF.
13. Return of Corporate Property; Conveyance of Information.
(a) Company Property. Upon his Separation on September 30, 2005,
Executive hereby covenants and agrees to immediately return all
documents, keys, credit cards (without further use thereof), and
all other items which are the property of the Company and/or
which contain Confidential Information; and, in the case of
documents, to return any and all materials of any kind and in
whatever medium evidenced, including, without limitation, all
hard disk drive data, diskettes, microfiche, photographs,
negatives, blueprints, printed materials, tape recordings and
videotapes.
(b) Information. Executive hereby acknowledges and affirms that he
possesses intellectual information regarding the Company and its
subsidiaries and its and their businesses, operations, and
customer relationships. In addition to the obligation to turn
over any physical embodiment of such information as defined in
the Federal Rules of Civil Procedure and pursuant to paragraph
13(a), above, and to keep such information strictly confidential
pursuant to paragraph 6, above, Executive agrees to make himself
available from time to time at the Company's request (during
normal business hours and with reasonable prior notice) to
discuss and disseminate such information and to otherwise
cooperate with the Company's efforts relating thereto.
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14. Remedies. Executive hereby acknowledges and affirms that in the event of
any breach by Executive of any of his covenants, agreements and obligations
hereunder, monetary damages would be inadequate to compensate the Releasees of
any of them. Accordingly, in addition to other remedies which may be available
to the Releasees hereunder or otherwise at law or in equity, any Releasee shall
be entitled to specifically enforce such covenants, obligations and restrictions
through injunctive and/or equitable relief, in each case without the posting of
any bond or other security with respect thereto. Should any provision hereof be
adjudged to any extent invalid by any court or tribunal of competent
jurisdiction, each provision shall be deemed modified to the minimum extent
necessary to render it enforceable.
15. Acknowledgment of Voluntary Agreement; ADEA Compliance. Executive
acknowledges that he has entered into this Agreement freely and without
coercion, that he has been advised by the Company to consult with counsel of his
choice, that he has had adequate opportunity to so consult, and that he has been
given all time periods required by law to consider this Agreement, including but
not limited to the 21-day period required by the ADEA. Executive understands
that he may execute this Agreement less than 21 days from its receipt from the
Company, but agrees that such execution will represent his knowing waiver of
such 21-day consideration period. Executive further acknowledges that within the
7-day period following his execution of this Agreement (the "Revocation Period")
he shall have the unilateral right to revoke this Agreement, and that the
Company's obligations hereunder shall become effective only upon the expiration
of the Revocation Period without Executive's revocation hereof. In order to be
effective, notice of Executive's revocation of this Agreement must be received
by the Company on or before the last day of the Revocation Period.
16. Complete Agreement; Inconsistencies. This Agreement, including the
Executive Agreements and any other documents referenced herein constitute the
complete and entire agreement and understanding of the Parties with respect to
the subject matter hereof, and supersedes in its entirety any and all prior
understandings, commitments, obligations and/or agreements, whether written or
oral, with respect thereto; it being understood and agreed that this Agreement
and including the mutual covenants, agreements, acknowledgments and affirmations
contained herein, is intended to constitute a complete settlement and resolution
of all matters set forth in paragraph 7 hereof. In the event of a conflict
between this Agreement and one or more Executive Agreements, the Parties agree
that this Agreement shall govern. The Company acknowledges that Executive has
vested benefits in the Company's Master Salaried Retirement Plan, 401(k) Plan
and Non-qualified 401(k) Plan.
17. No Strict Construction. The language used in this Agreement shall be deemed
to be the language mutually chosen by the Parties to reflect their mutual
intent, and no doctrine of strict construction shall be applied against any
party.
18. Non-Admission. Nothing herein shall be deemed or construed to represent an
admission by the Company or the Releasees of any violation of law or other
wrongdoing with respect to Executive.
19. Third Party Beneficiaries. The Releasees are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by each of
them in accordance with the terms hereof in respect of the rights granted to
such Releasees hereunder. Executive's heirs or assigns
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also are intended third-party beneficiaries with respect to the payments set
forth in paragraph 4 of this Agreement in the event of Executive's death, and
this Agreement may be enforced by each of them in accordance with the terms of
that paragraph 4 in respect of the rights granted to such heirs or assigns
therein. Except and to the extent set forth in the preceding two sentences, this
Agreement is not intended for the benefit of any Person other than the Parties,
and no such other person shall be deemed to be a third party beneficiary hereof.
Without limiting the generality of the foregoing, it is not the intention of the
Company to establish any policy, procedure, course of dealing or plan of general
application for the benefit of or otherwise in respect of any other employee,
officer, director or stockholder, irrespective of any similarity between any
contract, agreement, commitment or understanding between the Company and such
other employee, officer, director or stockholder, on the one hand, and any
contract, agreement, commitment or understanding between the Company and
Executive, on the other hand, and irrespective of any similarity in facts or
circumstances involving such other employee, officer, director or stockholder,
on the one hand, and the Executive, on the other hand.
20. Tax Withholdings. Notwithstanding any other provision herein, the Company
shall be entitled to withhold from any amounts otherwise payable hereunder to
Executive any amounts required to be withheld in respect of federal, state or
local taxes.
21. Governing Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
giving effect to any choice of law or conflict of law rules or provisions that
would cause the application hereto of the laws of any jurisdiction other than
the State of New York. In furtherance of the foregoing, the internal law of the
State of New York shall control the interpretation and construction of this
Agreement, even though under such jurisdiction's or any other jurisdiction's
choice of law or conflict of law analysis the substantive law of some other
jurisdiction may ordinarily apply.
22. Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall otherwise remain in full force and effect.
23. Counterparts. This Agreement may be executed in separate counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. It is not necessary that the Company sign
this Agreement for it to become binding upon the Company and Executive.
24. Successors and Assigns. The Parties' obligations hereunder shall be binding
upon their successors and assigns. The Parties' rights and the rights of the
other Releasees shall inure to the benefit of, and be enforceable by, any of the
Parties' and Releasees' respective successors and assigns. The Company may
assign all rights and obligations of this Agreement to any successor in interest
to the assets of the Company. In the event that the Company are dissolved, all
obligations of the Company under this Agreement shall be provided for in
accordance with applicable law.
25. Amendments and Waivers. No amendment to or waiver of this Agreement or any
of its terms shall be binding upon any party unless consented to in writing by
such party.
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26. Headings. The headings of the paragraphs, sections and subsections hereof
are for purposes of convenience only, and shall not be deemed to amend, modify,
expand, limit or in any way affect the meaning of any of the provisions hereof.
27. Waiver of jury trial. Each of the Parties hereby waives its rights to a
jury trial of any claim or cause of action based upon or arising out of this
Agreement or any dealings between the Parties relating to the subject matter
hereof. Each of the Parties also waives any bond or surety or security upon such
bond which might, but for this waiver, be required of the other party. The scope
of this waiver is intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter of this
Agreement, including, without limitation, contract claims, tort claims, breach
of duty claims, and all other common law and statutory claims. EACH OF THE
PARTIES ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
THIS AGREEMENT, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO
THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED
FUTURE DEALINGS. Each of the Parties further represents and warrants that he or
it has had an adequate opportunity to consider this waiver and to consult with
legal counsel with respect hereto, and that he or it knowingly and voluntarily
waives its jury trial rights. This waiver is irrevocable, meaning that it may
not be modified either orally or in writing, and the waiver shall apply to any
subsequent amendments, renewals, supplements or modifications to this agreement.
In the event of litigation, this agreement may be filed as a written consent to
a trial by the court.
* * * * *
IN WITNESS WHEREOF, the Parties have executed this Separation and
General Release Agreement effective as of the date of the first signature
affixed below or as otherwise provided in this Agreement.
READ CAREFULLY BEFORE SIGNING
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I have read this Separation and General Release Agreement and have had the
opportunity to consult legal counsel prior to my signing of this Agreement. I
understand that by executing this Agreement I will relinquish any right or
demand I may have against the Releasees or any of them.
DATED: November 1, 2005 By: /s/ Xxxxxx X. Xxxxxx
---------------- ---------------------
Xxxxxx X. Xxxxxx
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Subscribed and Sworn To Before Me at
/s/ Rochester, New York
This 1st day of November, 2005
/s/ Xxxxxxx Xxxxxx
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Notary Public SEAL
My Commission expires: April 7, 2007
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
DATED: November 1, 2005 By: /s/ Xxxx Xxxxxxx-Xxxxxx
---------------- -------------------
Birds Eye Foods, Inc.
By: Xxxx Xxxxxxx-Xxxxxx
Title: Vice President, Human
Resources
By: /s/ Xxxxx X. Xxxxxx
---------------
Birds Eye Holdings, LLC
By: Xxxxx X. Xxxxxx
Authorized Person
By: /s/ Xxxx X. Xxxxxx
---------------
Birds Eye Holdings, Inc.
By: Xxxx X. Xxxxxx
Title: Secretary and Treasurer
Subscribed and Sworn To Before Me at
Rochester, New York
This 1st day of November, 2005
/s/ Xxxx Xxxxxxxx
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Notary Public SEAL
My Commission expires: August 1, 2006
Subscribed and Sworn To Before Me at
000 Xxxx Xxx., Xxx Xxxx
This 2nd day of November, 2005
/s/ Xxxxxxxxx Xxxxxxxx
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Notary Public SEAL
My Commission expires: 2/22/2007
Subscribed and Sworn To Before Me at
00 Xxxxxx Xxxx, Xxx Xxxx
This 2nd day of November, 2005
/s/ Xxxxxxxxx X. Xxxxxxxx
---------------------
Notary Public SEAL
My Commission expires: June 8, 2006
12
