Exhibit 10.24
RELEASE, CONFIDENTIALITY, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
NOTE: MULTIFOODS HEREBY ADVISES XXXX TO CONSULT WITH AN ATTORNEY-
AT-LAW OF XXXX'X CHOICE BEFORE XXXX SIGNS AND DELIVERS THIS AGREEMENT.
THIS AGREEMENT (hereinafter "the Agreement" or "this Agreement"),
dated as of October 27, 1997, by and between INTERNATIONAL MULTIFOODS
CORPORATION, a Delaware corporation ("Multifoods"), and D. XXXXX XXXX,
residing at 000 Xxx Xxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxx 00000
("Xxxx").
WITNESSETH THAT:
WHEREAS, Xxxx will terminate his employment as Executive Vice
President of Multifoods' Distribution Business Unit and as President of
Multifoods Specialty Distribution, Inc., a Delaware corporation, wholly
owned by Multifoods, effective as of the close of business on October
31, 1997, and
WHEREAS, Multifoods and Xxxx wish to enter this Agreement.
NOW, THEREFORE, in consideration of the preceding recitals and of
the mutual covenants and agreements hereinafter set forth, Multifoods
and Xxxx agree as follows:
1. Consideration For This Agreement.
In consideration of the Release given by Xxxx in Section 2 of this
Agreement and Xxxx'x covenants of confidentiality, non-disclosure and
non-competition set forth in Section 3 of this Agreement, Multifoods
agrees to pay the amounts and perform its other obligations set forth
in that certain Memorandum, dated October 27, 1997, from Xxxxxxx X.
Xxxxx, President of Multifoods' Distribution Business Unit, to Xxxxx
Xxxx, and the attachment to such memo entitled Employee Benefit Plans,
copies of which are attached hereto as Exhibit A and Exhibit B,
respectively, including, but not limited to, Multifoods' agreement to
pay Xxxx the amount of $262,500 severance pay, as described in
paragraph 3 of Exhibit A, less all applicable federal, state and
local withholding taxes, commencing on a date which is the later
to occur of November 1, 1997 or the date immediately following
the date on which the "Rescission Period" (as defined in Section 2.E.
of this Agreement) expires. The foregoing is hereinafter
collectively called the "Consideration.")
2. Release.
A. In consideration of the Consideration payable by Multifoods
to Xxxx set forth and described in Section 1 of this Agreement, and for
other good and valuable consideration, Xxxx hereby releases and
discharges Multifoods and its subsidiaries and affiliates, and the
directors, officers, employees, agents and insurers of each
(collectively, the "Released Parties"), from all causes of action,
claims, demands, debts, contracts and agreements to which Xxxx or his
heirs, executors, administrators, legal representatives, successors or
assigns and beneficiaries, have or may have in connection with Xxxx'x
employment with or termination of employment from Multifoods, for all
time to the date of this Agreement, except for (i) the Consideration
for this Agreement, (ii) any rights that Xxxx has as a result of his
participation in any benefit plan or plans of Multifoods to which Xxxx
is entitled by reason of his employment by Multifoods or any of its
subsidiaries, including, but not limited to, pension, health and
welfare plans in accordance with and subject to the terms and
conditions of such plans, and (iii) any indemnification right to which
Xxxx is entitled by reason of his employment by Multifoods, under (a)
the Restated Certificate of Incorporation, as amended, of Multifoods,
(b) the Bylaws of Multifoods, and/or (c) any policy of liability
insurance issued to Multifoods under which Xxxx is an insured and
entitled to coverage (the foregoing herein called the "Release").
B. Except as specifically provided in Paragraph A of this
Section 2, the Release applies to any action, claim, demand, debt,
contract and/or agreement that Xxxx has or may have as of the date of
this Agreement including, without limitation, any and all claims
relating to Xxxx'x employment with or termination of employment from
Multifoods including, but not limited to, breach of contract claims and
claims alleging violation of the Fair Labor Standards Act, the Age
Discrimination In Employment Act, as amended; Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1866, the
National Labor Relations Act, the Americans With Disabilities Act, the
Employee Retirement Income Security Act, and/or any other federal,
state or local statute, law, ordinance, regulation, order or principle
of common law.
X. Xxxx acknowledges that Multifoods willingness to enter into
this Agreement is not an admission that Multifoods or any of the other
Released Parties has engaged in any wrongful conduct towards Xxxx, has
acted in any way to cause injury to Xxxx, or is responsible or legally
obligated to Xxxx in any way, except as specifically provided in this
Agreement.
X. Xxxx acknowledges that he may have twenty-one (21) calendar
days from the day that he receives this Agreement, not counting the day
upon which he receives it, to consider whether he wishes to sign this
Agreement. If Xxxx cannot make up his mind in that period of time,
Multifoods may or may not allow Xxxx more time. Xxxx agrees that if he
signs this Agreement before the end of the twenty-one (21) day period,
it is because he has decided that he already has had a sufficient
period of time to decide whether to sign this Agreement.
X. Xxxx acknowledges that he has been advised and that he
understands, that he has fifteen (15) days from the date that he signs
this Agreement (the "Rescission Period") to rescind this Agreement in
its entirety, if he notifies Multifoods, in writing, at Xxxxxxxxxx
Xxxxx, Xxx 0000, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxxx, Vice President, General Counsel and Secretary of
Multifoods, of his decision to rescind this Agreement. This Agreement
will not be effective or enforceable until the expiration of the
Recission Period. Xxxx also understands that if he rescinds this
Agreement, he shall forfeit the Consideration. Xxxx further
acknowledges and understands that to be effective, his notice of
rescission must be in writing and must be delivered to the address
stated above either by hand or by mail within the Rescission Period. If
delivered by mail, the rescission must be: (1) postmarked within the
fifteen (15) day period; (2) properly addressed to Multifoods; and (3)
sent by certified mail, return receipt requested.
X. Xxxx represents that he has read this Agreement and
understands all of the terms and conditions contained in this
Agreement, and that he has been encouraged by Multifoods to discuss
this Agreement with an attorney-at-law of his choice. Xxxx'x manual
signature on this Agreement, set forth below in the signature block,
constitutes Xxxx'x acknowledgment that he understands the effect of
this Agreement, and that he has signed this Agreement KNOWINGLY AND
VOLUNTARILY, and that he has not relied on any representations,
statements or explanations made by Multifoods, its attorneys or any of
the Released Parties.
G. Concurrent with the execution and delivery of this
Agreement, Xxxx shall execute and deliver a resignation, effective as
of October 31, 1997, of all officerships and/or directorships that Xxxx
currently holds in any subsidiary of Multifoods, in the form of
Resignation attached hereto as Exhibit C.
3. Covenants of Confidentiality, Non-Disclosure and Non-
Competition.
A. In consideration of the Consideration for this Agreement,
Xxxx covenants and agrees with Multifoods that at all times from and
after the date of this Agreement, Xxxx will maintain in strict
confidence and not disclose to any corporation, partnership or other
entity or person, any non-public or proprietary information including,
without limitation, financial information, customer names or lists of
customers, or business plans of Multifoods, or any of Multifoods'
subsidiaries or affiliates, or any proprietary information of
Multifoods or any subsidiary or affiliate of Multifoods to which Xxxx
had access to or knowledge of while he was employed by Multifoods or
any of its subsidiaries (herein collectively called "Confidential
Information"). For purposes of this Agreement, Confidential
Information shall not include any information: (i) which was known to
the public on the date of this Agreement; (ii) which becomes known to
the public following the date of this Agreement through no fault of
Xxxx; or (iii) which is disclosed to Xxxx by a third party who has the
right to disclose such information without violating any agreement of
confidentiality with Multifoods.
B. In the event that Xxxx is compelled by subpoena, civil
investigative demand, court order or other legal process in any
proceeding to disclose any Confidential Information, Xxxx shall give
Multifoods prompt notice so that Multifoods may seek an appropriate
protective order or other confidential treatment of such Confidential
Information. If Multifoods shall fail for any reason to obtain a
protective order and Xxxx shall be compelled to disclose any such
Confidential Information based upon the advice of Xxxx'x counsel, Xxxx
may disclose such information without liability under this Agreement,
provided that Xxxx shall give Multifoods written notice of the
information to be disclosed as far in advance of its disclosure as is
reasonably practicable and the name of the party to whom Xxxx is
required to disclose such information, and in any event, such
disclosure shall be limited to the specific information that Xxxx is
legally required to disclose based upon the advice of Xxxx'x counsel.
C. During the period beginning November 1, 1997 through
December 31, 1998, inclusive (the "Non-competition Period"), Xxxx will
refrain from carrying on, either directly or indirectly (whether as a
principal, agent, investor, employee, employer, consultant,
shareholder, partner or in any other individual or representative
capacity whatsoever), anywhere in the United States of America or its
territories and possessions, any business engaged in specialty
distribution of any food and other products to: (i) independent or
national chain pizza restaurants; and (ii) vending and office service
and other concessionaires. An investment by Xxxx of not more than one
percent (1%) of all the issued and outstanding stock of a corporation
which is publicly traded on a national stock exchange and competes
with Multifoods in the aforementioned manner, shall not violate Xxxx'x non-
competition covenant set forth herein.
X. Xxxx agrees that in the event there is a breach or
threatened breach by Xxxx of Xxxx'x covenants set forth in Paragraphs A
or C of this Section 3, Multifoods shall have the right to pursue all
available legal and equitable remedies (including, without limitation,
injunctive relief) without an obligation to post bond.
4. No Waiver.
The waiver by Multifoods or Xxxx of a breach by Multifoods or
Xxxx, as applicable, of any term of this Agreement shall not operate or
be construed as a waiver of any subsequent breach by Multifoods or
Xxxx, as applicable.
5. Governing Law.
This Agreement shall be interpreted under and governed by the laws
of the State of Colorado.
6. Entire Agreement.
This Agreement contains the entire agreement between Multifoods
and Xxxx with respect to the Release and Xxxx'x covenants of non-
disclosure, confidentiality and non-competition, and supersedes any
prior oral or written agreement or understanding with respect to the
subject matter hereof.
IN WITNESS WHEREOF, Multifoods and Xxxx have signed and delivered
this Agreement as of the day and year first above written.
WITNESS: INTERNATIONAL MULTIFOODS CORPORATION
/s/ Xxxxxxx Xxxxxxxxx By: /s/Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Its: Chairman of the Board,
President and Chief
Executive Officer
WITNESS:
/s/ Xxx X. Xxxxxxxxx /s/ D. Xxxxx Xxxx
D. Xxxxx Xxxx
EXHIBIT A
[MULTIFOODS LOGO] Memo
DATE: October 27, 1997
TO: D. Xxxxx Xxxx
FROM: Xxxxxxx X. Xxxxx
SUBJECT: Separation from Service
This will confirm the understanding reached regarding your separation
from International Multifoods:
1. Employment Status and Term. You will continue as Executive Vice
President - Distribution Operations until October 31, 1997. Prior to
such date you will confirm your resignation as an officer of Multifoods
Special Distribution, Inc. (the "Company") as of October 31, 1997.
You will continue as an inactive employee on paid leave of absence from
November 1, 1997 until March 31, 1998, at which time your employment
with the Company will terminate.
2. Salary and Vacation Pay. For the period from November 1, 1997
through March 31, 1998, you will receive your current base salary, less
all applicable withholding amounts. The Company will pay you in a lump
sum, less all applicable withholding amounts, the amount of any unpaid
vacation as of October 31, 1997. No further vacation pay will be
earned after October 31, 1997.
3. Severance Pay. The Company will pay you severance payments equal
to $262,500 (14 months' base salary). Salary continuation payments for
the period from November 1, 1997 through March 31, 1998 will count
toward the $262,500 and will be paid to you on regularly-scheduled pay
dates. On March 31, 1998, the unpaid balance will be paid in a lump
sum, less all applicable withholding amounts.
4. Employee Benefits for the Period from November 1, 1997 through
March 31, 1998. During this period, you will be eligible to
participate in and receive benefits under Multifoods' employee benefit
plans (other than the long-term disability plan, the Management
Incentive Plan and any long-term incentive plan or program), which
plans are listed in the attachment entitled " Employee Benefit Plans,"
unless you elect to discontinue coverage or cease to make the required
contributions. The Company will deduct contributions for such employee
benefit plans from the salary payments described in Section 2 above.
Your participation in the Multifoods' Management Incentive Plan and any
long-term incentive plan or program or successor plan or program, will
terminate on October 31, 1997 provided, however, that Multifoods'
management will recommend to the Compensation Committee of the Board
that you receive a bonus award under the Management Incentive Plan
equal to the amount you would otherwise have been eligible to receive
if your participation in the Management Incentive Plan continued
through February 28, 1998. To the extent any bonus is payable, the 20%
discretionary portion of such bonus will be deemed to have been fully
attained. As you know, any bonus award consideration under the
Management Benefit Plan is wholly within the discretion of the
Compensation Committee.
5. Employee Benefits After March 31, 1998. After March 31, 1998,
you will be eligible to participate in and receive benefits under the
Multifoods' employee benefit plans available to similarly-situated
retirees of Multifoods in accordance with the provisions of such plans
and other applicable requirements. Such plans, and certain estimates
and assumptions relating thereto, are listed in the attachment entitled
" Employee Benefit Plans." Multifoods has the right to amend or
terminate any such plans at any time and for any reason, and the
contribution amounts are subject to change by Multifoods.
6. Stock Options. Shown below are the expiration dates of your
outstanding options to purchase common stock of Multifoods. The
expiration dates are determined based on the date of your termination
of employment (March 31, 1998) and in accordance with the terms of the
respective stock option plans and stock option agreements relating to
the options.
Date of Number Exercise Expiration
Grant of Shares Price Date
3/17/95 5,000 $18.6875 3/31/2003
3/15/96 5,000 $19.3125 3/31/2003
3/21/97 6,000 $21.4375 3/31/2001
7. Outplacement. The Company will pay directly to a nationally-
recognized outplacement firm located in Denver, Colorado, selected by
you, an aggregate amount not to exceed $10,000 of outplacement
services.
8. Company Car. The Company will purchase the vehicle which it
currently leases on your behalf and transfer title of that vehicle to
you. The fair market value, less $5,000, will be reported as taxable
income to you, and you will be responsible for payment of the taxes
associated with this transaction. Details of this transaction will be
worked out in the near future.
9. Club Memberships. The Company will assign its rights, if any, in
the membership presently used by you at the Glenmore Country Club. The
Company will pay any transfer fee required by the country club in
connection with the assignment. You will be responsible for any fees
or dues incurred after October 31, 1997.
10. Release. As a condition of Multifoods' willingness to provide
the separation program outlined above, you will be required to sign a
Form of Release and Confidentiality Agreement.
Exhibit B
Employee Benefit Plans
Employee Benefits for the Period November 1, 1997 through Xxxxx 00,
0000
X. GROUP BENEFITS
Subject to the terms and conditions of the Agreement, of which this
Exhibit B is a part, the group benefit plans listed below will remain
in effect unless you choose to discontinue coverage or cease to make
the required contributions. Contributions for group benefits will be
deducted from your salary payments. The bi-weekly contributions are as
follows:
Contributions in effect:
11/01/97 1/01/98
through through
12/31/97 3/31/98
CIGNA Point-of-service, family coverage $30.92 $38.65
Dental plan, family coverage $ 3.23 $ 4.04
Life insurance coverage equal to $450,000 $ 0.00 $ 0.00
Dependent life insurance $ 1.05 $ 1.05
Health Care Flexible Spending Account $57.70 Unknown
Note: Contribution amounts are subject to change by Multifoods.
II. RETIREMENT PLANS
You will continue as an active participant in the Employees' Voluntary
Investment and Savings Plan of International Multifoods Corporation,
the Multifoods Pension Equity Plan and the Management Benefit Plan of
International Multifoods Corporation until March 31, 1998.
Employee Benefits after Xxxxx 00, 0000
X. GROUP BENEFITS
Effective April 1, 1998, you will be eligible to enroll in retiree
group insurance plans available to similarly-situated employees under
the plans that exist on that date. The plans currently available are:
A. LIFE INSURANCE
You can convert all or any portion of your group term life insurance to
an individual policy (except term insurance or a policy which contains
disability benefits).
B. MEDICAL INSURANCE
Your participation in the Multifoods medical plan available to
employees would cease on March 31, 1998. However, you would have the
option to continue company-sponsored medical coverage under Multifoods
Retiree Medical Program. You and your wife can continue coverage under
an indemnity plan option and receive increased benefits when services
are received within a network of preferred providers. An HMO option
may also be available depending on where you reside at that time.
C. DENTAL AND VISION PLANS
Your participation in the dental and vision plans would cease on March
31, 1998. However, under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), you and your eligible dependents
could continue these plans for up to 18 months.
II. VISA PLAN
Distribution may be made promptly following your termination of
employment date or deferred until not later than the April 1 following
the year in which you reach age 70-1/2. At your election, distribution
may be made in one lump sum or in a series of approximately-equal
annual installments over a period not exceeding 10 years.
III. MULTIFOODS PENSION EQUITY PLAN AND MANAGEMENT BENEFIT PLAN
You will be eligible to receive monthly pension benefits commencing
April 1, 1998 under one of the payment options shown below in the
approximate amounts noted:
PENSION BONUS
EQUITY BASE TOTAL
PAYMENT OPTION FORMULA* FORMULA PENSION
Life only $681.96 $755.56 $1,437.52
Life with 10 years certain $654.00 $724.58 $1,378.58
100% joint and survivor, with benefits $492.38 $545.51 $1,037.89
equal to the amounts shown continuing
to your surviving spouse following
your death
50% joint and survivor, with benefits $564.67 $625.60 $1,190.27
equal to 50% of the amounts shown to
your surviving spouse following your
death
*Amounts which could not be paid from the Pension Equity Plan because
of Internal Revenue Code limits would be paid from the Management
Benefit Plan.
The above estimates were calculated assuming there are no future
changes in plan design or increases in the Social Security covered wage
base.
EXHIBIT C
RESIGNATION
I hereby resign as President of Multifoods Specialty
Distribution, Inc. and as an officer and/or director of any other
subsidiary, division or business unit of International Multifoods
Corporation, effective as of October 31, 1997.
/s/ D. Xxxxx Xxxx
-------------------------------
D. Xxxxx Xxxx
