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EXHIBIT 10(h)
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release ("Agreement"), between F.
Xxxxxx Xxxxxxxx ("Employee") and Xxxxxxxx Soup Company ("Company"), is made with
respect to the following facts:
A. Company has decided to sever its employment relationship
with Employee effective July 31, 2001 ("Termination Date"). In consideration of
Employee's signing this Agreement and releasing Company from any and all claims
which he might have against it, Company will, upon the termination of Employee's
employment, provide Employee with the severance pay and benefits set forth
below.
B. In exchange for the promises, payments and benefits
described in this Agreement, the parties execute this Agreement in favor of and
for the benefit of the other as follows:
1. Severance.
a. 65 Week Period.
(i) Company agrees to continue Employee's
current base salary (less required payroll taxes and other withholdings) for a
period of sixty-five (65) weeks ("65 Week Period") beginning subsequent to
Employee's Termination Date and following payment for Employee's vacation time
of four (4) weeks, as more fully set forth in paragraph B.1.c. (titled Periodic
Payments), provided that Employee does not in the 65 Week Period accept
employment or a consulting assignment, directly or indirectly, with or for a
Competitor of the Company, as that term is defined in this paragraph. If
Employee accepts employment or a consulting assignment with or for a Competitor,
directly or indirectly, or otherwise engages in competition with the Company, in
any manner during the 65 Week Period, all payments and benefits otherwise
provided under the terms of this Agreement to the extent yet unpaid will cease
and Company shall be entitled to exercise all rights and remedies available to
the Company under this Agreement, under the Non-Competition Agreement identified
in paragraph 7, and otherwise available to the Company at law or in equity. For
the purpose of this Agreement, a Competitor of the Company is defined to mean
any person, business, firm, corporation or other enterprise engaged in, or about
to become engaged in, the production, marketing or selling of any product or
service which resembles or competes with a product or service produced, marketed
or sold by the Company (or to Employee's knowledge was under development by the
Company), or any of the Company's corporate affiliates or subsidiaries.
(ii) During the 65 Week Period Employee's
coverage will be continued under the Company's group life and group medical
insurance plans (provided Employee makes required contributions); all other
benefits coverage shall cease. If Employee obtains employment at any time during
the 65 Week Period Company benefits coverage will cease at the time that
Employee becomes eligible for benefits coverage from the new employer. During
the 65 Week Period, Employee agrees to notify Company's Vice President - Human
Resources in writing within ten (10) business days of commencing alternate
employment and to set forth in such notice (i) the full name of Employee's new
employer; (ii) Employee's title and a description of the areas of responsibility
in his position with the new employer; and (iii) Employee's commencement date
and the date when Employee will become eligible for benefits coverage from his
new employer.
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b. 22 Week Period. Company agrees to provide additional
Periodic Payments (as defined below) for a period up to 22 weeks ("22 Week
Period") and to continue to provide coverage under the Company's group life and
group medical insurance plans (provided Employee makes required contributions)
if, after reasonable efforts, Employee is unable to secure alternative
employment in the 22 Week Period. During the 22 Week Period, Employee agrees to
notify Company's Vice President - Human Resources in writing within five (5)
business days of securing such alternative employment and to set forth in such
notice (i) the full name of Employee's new employer and the date on which
alternative employment will commence; (ii) Employee's title and a description of
the areas of responsibility in his position with the new employer; and (iii)
Employee's commencement date and the date when Employee will become eligible for
benefits coverage from his new employer. Upon commencement of the alternative
employment, no further 22 Week Period Periodic Payments will be made to Employee
and Company benefits coverages will cease. If Employee has not secured
alternative employment before the start of the 22 Week Period, Employee agrees
to continue to use reasonable efforts to secure alternative employment during
the 22 Week Period.
c. Periodic Payments. Periodic Payments of Employee's current
base salary (less required payroll taxes and other withholdings) shall be made
at such times as Employee would have received salary payments had Employee
continued to be employed by the Company ("Periodic Payments"). Periodic Payments
will begin after the Effective Date of this Agreement, but in no event before
July 31, 2001.
d. The amount of Periodic Payments will count toward accrual
of benefits and vesting under Xxxxxxxx Soup Company's Retirement and Pension
Plan for Salaried Employees and vesting under Xxxxxxxx Soup Company's Savings
and 401(k) Plan for Salaried Employees.
e. Company agrees that, in the event of Employee's death, all
remaining severance pay due under this Agreement will be paid to Employee's
estate in a cash lump sum payment.
2. Release.
a. Employee hereby forever releases Company and its officers,
directors, shareholders, agents, employees, affiliates, subsidiaries, parent
company, predecessors, successors and assigns ("Releasees"), from any and all
complaints, charges, claims, liabilities, demands, debts, accounts, obligations,
promises, suits, actions, causes of action, demands in law or equity, including
claims for damages, attorney fees or costs, whether known or unknown, which
Employee now has, or claims to have, or which Employee at any time may have had,
or claimed to have, or which Employee at any time hereafter may have, or claim
to have, arising at any time in the past up to and including the date of this
Agreement, including, but without limiting the generality of the foregoing, any
matters relating in any way to Employee's employment relationship or the
termination of that employment relationship with the Company, with the exception
of any rights or claims arising out of the Agreement.
b. The claims, rights and obligations that Employee is
releasing herein include, but are not limited to: (i) those for wrongful
discharge, breach of contract, breach of implied contract, breach of implied
covenant of good faith and fair dealing, and any other common law or statutory
claims now or hereafter recognized; and (ii) those for discrimination (including
but not limited to claims for discrimination, harassment or retaliation on
account of sex, age, handicap, medical condition or disability, national origin,
race, color, religion, sexual preference, or veteran status) which Employee
might have or might have had under the federal Age Discrimination in
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Employment Act, Title VII of the Civil Rights Act, the New Jersey Law Against
Discrimination, the New Jersey Conscientious Employee Protection Act and any
other federal, state or local laws prohibiting discrimination, harassment or
retaliation in employment. BY SIGNING THIS AGREEMENT, EMPLOYEE AGREES TO GIVE
UP, OR WAIVE, ANY RIGHTS OR CLAIMS WHICH HE MAY HAVE HAD UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 29 U.S.C. SECTION 621 ET. SEQ., OR ANY
OTHER STATUTE OR OTHER LAW, WHICH ARE BASED ON ACTIONS OF XXXXXXXX SOUP COMPANY,
OR ITS EMPLOYEES OR AGENTS, WHICH OCCURRED UP THROUGH THE DATE THAT EMPLOYEE
SIGNS THIS AGREEMENT.
c. Employee further acknowledges and agrees that this
Agreement shall operate as a complete bar to recovery in any and all litigation,
charges, complaints, grievances or demands of any kind whatsoever now pending or
now contemplated by Employee, or which might at any time be filed by Employee,
including, but without limiting the generality of the foregoing, any and all
matters arising out of or in any manner whatsoever connected with the matters
set forth in Paragraph 2a. above. Each and all of the said claims are hereby
fully and finally settled, compromised and released.
d. Employee further acknowledges and agrees that
neither Employee, nor any person, organization, or other entity on Employee's
behalf, will file, claim, xxx or cause or permit to be filed or claimed, or join
in any claims, as an individual or as a class member, any action for legal or
equitable relief (including damages and injunctive, declaratory, monetary or
other relief), involving any matter or related in any way to Employee's
employment relationship or the termination of Employee's employment relationship
with the Company, or involving any continuing effects of any acts or practices
that may have arisen or occurred during Employee's employment relationship with
the Company.
e. Nothing in this paragraph 2 is intended to operate
as a release, waiver, or forfeiture of Employee's rights, and Company's
obligations, under
(i) any of the Company's employee benefit plans in
which the Employee has been a participant, including, but not
limited to, Xxxxxxxx Soup Company's Retirement and Pension
Plan for Salaried Employees, and Xxxxxxxx Soup Company's
Savings and 401(k) Plan for Salaried Employees,
(ii) any health and welfare benefits to which
Employee may in the future be entitled under "COBRA" or
comparable federal or state law or regulation, or
(iii) any state worker's compensation act or statute.
Subject to the terms of paragraph B.1.a. of this Agreement,
upon the termination of Employee's employment with the Company Employee's rights
under the applicable employee benefit plans of the Company will be determined in
accordance with the terms of those plans.
3. Inquiries.
a. In the event that inquiries are made by
prospective employers concerning Employee's employment with the Company, the
Company will use its best efforts to refer those inquiries to the Company's Vice
President - Human Resources, or his designate.
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b. Employee will not take any action, or make any
statement, whether orally or in writing, which, in any manner, disparages or
impugns the reputation or goodwill of the Company, its Directors or officers, or
other Releasees.
4. Successors and Assigns. This Agreement shall bind Company
and Employee, and also all of their respective family members, heirs,
administrators, representatives, successors, assigns, officers, directors,
agents, employees, shareholders, affiliates, predecessors, and also all other
persons, firms, corporations, associations, partnerships and entities in privity
with or related to or affiliated with any such person, firm, corporation,
association, partnership or entity.
5. Effect of Agreement. Employee acknowledges and agrees that
this Agreement is not and shall not be construed as an admission of any
violation of any federal, state, or local statute, ordinance or regulation, or
of any duty or obligation the Company owes or owed to Employee, and that
Employee's execution of this Agreement is a voluntary act to provide an amicable
conclusion to Employee's employment relationship with the Company.
6. Cooperation. Employee agrees to fully cooperate, in a
timely and good faith manner, subsequent to the Termination Date, with all
reasonable requests for assistance made by the Company, relating, directly or
indirectly, to any and all matters which occurred during the course of
Employee's Company employment, or with which Employee was involved prior to the
termination of his employment, or with which Employee became aware of during the
course of his employment. Employee agrees that, should he be contacted by any
third party regarding such matters, he will politely refuse to engage in any
substantive communication, discontinue such contact as soon as practicable,
immediately advise the Company's Senior Vice President-Law and Public Affairs of
that contact. Employee agrees not to initiate any contact with any third party
regarding the aforementioned matters, unless specifically requested to do so by
the Company. Upon the submission of proper documentation, Company will reimburse
Employee for all reasonable expenses incurred by him as a result of such
requests for assistance.
7. Confidentiality of Proprietary Information. Employee
acknowledges and agrees that in the course of his employment with the Company
Employee has acquired confidential or proprietary information relating to the
business of the Company and/or its affiliates. Employee expressly agrees that he
will keep secret and safeguard all such information, and will not, at any time,
in any form or manner, directly or indirectly, divulge, disclose or communicate
to any person, firm, corporation, or other entity any such information without
the direct written authority of the Company. This Agreement incorporates by
reference all of the provisions of the Nonqualified Stock Option and
Non-Competition Agreement between the Company and Employee executed as of June
26, 1997 ("Non-Competition Agreement"). Employee agrees that Employee's
obligations relating to Non-Competition, No Business Diversion and No Employee
Solicitation under the provisions of the Non-Competition Agreement shall remain
in effect through April 25, 2003. The parties hereby stipulate that, as between
them, the matters addressed in this paragraph and in the Non-Competition
Agreement are material and gravely affect the effective and successful conduct
of the business of the Company, and its goodwill, and that notwithstanding
anything to the contrary set forth herein, the Company is entitled to an
injunction by any competent court to enjoin and restrain the unauthorized
disclosure of such confidential information or the breach or threatened breach
of the Non-Competition Agreement.
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8. Return of Company Property.
a. Upon signing this Agreement, Employee agrees to
return to the Company any office, desk and file keys, Company identification
pass cards, Company-provided credit cards issued to Employee, and any other
Company property in the possession of Employee or his agents on or before July
31, 2001. Employee acknowledges and represents that he has surrendered and
delivered to the Company all files, papers, data, documents, lists, charts,
photographs, computer records, discs or any other records, relating in any
manner to the business activities of the Company or its affiliates, which were
created, produced, reproduced or utilized by the Company, or any of the
Releasees, or by Employee during the term of Employee's employment relationship
with the Company.
b. Employee also agrees to repay any monies owed to
the Company, including loans, advances, charges or debts incurred by the
Employee, or any other amounts owed to the Company, on or before the Effective
Date of the Agreement.
9. Competency of Employee. Employee acknowledges, warrants,
represents and agrees that in executing and delivering this Agreement, he does
so freely, knowingly and voluntarily and that he is fully aware of the contents
and effect thereof and that such execution and delivery is not the result of any
fraud, duress, mistake or undue influence whatsoever.
10. Unknown or Mistake in Facts. It is acknowledged and
understood by the parties that the facts with respect to this Agreement as given
may hereafter turn out to be other than or different from the facts in that
connection now known to them or believed by them to be true, and the parties
therefore expressly assume the risk of the facts being different and agree that
this Agreement shall be in all respects effective and not subject to termination
or rescission by any such difference in facts. In addition, it is acknowledged,
understood and agreed by Employee that should the Company discover that Employee
has breached his fiduciary obligations to the Company (or any affiliated
corporate entity), engaged in any unethical, dishonest or fraudulent act which
affects, or has affected the Company (or any affiliated corporate entity), or
committed any act previously unknown to the Company which would constitute
grounds for discharge for cause, that Company reserves the right, in its sole
discretion, to terminate or suspend all payments or benefits remaining to be
paid by the Company under this Agreement. In addition, the Company may seek all
other remedies and relief allowed by law.
11. Savings Clause. It is acknowledged and agreed by the
parties that should any provision of this Agreement be declared or be determined
to be illegal or invalid by final determination of any court of competent
jurisdiction, the validity of the remaining parts, terms or provisions of this
Agreement shall not be affected thereby, and the illegal or invalid part, term
or provision shall be deemed not to be a part of this Agreement.
12. Enforcement. The parties expressly agree that this
Agreement constitutes a binding contract. If Employee breaches any term of this
Agreement, or violates any of his obligations under this Agreement or the
Non-Competition Agreement, the Company may, at its option, terminate or suspend
all payments or benefits remaining to be paid by the Company under this
Agreement. In addition, the Company may seek all other remedies and relief
allowed by law.
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13. Addendum. The Addendum attached to this Agreement, and
signed by the parties, is incorporated within and made a part of this Agreement.
14. Effective Date. It is acknowledged and agreed by the
parties that Employee has had twenty-one (21) days to consider this Agreement
before signing it. Further, Employee has the right to revoke this Agreement
within eight (8) days after signing and returning this Agreement to the Company.
This Agreement will not become effective or enforceable, and employee will not
receive any of the severance pay and benefits described in this Agreement, until
the eight (8) day revocation period has run, and Employee notifies the Company,
in writing, that he has elected not to revoke this Agreement (the "Effective
Date").
15. Employee Rights. Employee acknowledges, represents and
agrees to the following:
a. HE HAS BEEN ADVISED, IN WRITING, TO READ THIS
ENTIRE AGREEMENT CAREFULLY, AND TO CONSULT WITH AN ATTORNEY OF HIS CHOICE PRIOR
TO SIGNING THIS AGREEMENT;
b. He was given at least twenty-one (21) days to
consider this Agreement before signing it;
c. He was advised, in writing, that he had a full
eight (8) days after he signed this Agreement to revoke it, and that this
Agreement would not become effective until that eight (8) day revocation period
had run and he had notified Company, in writing, that he has elected not to
revoke this Agreement;
d. He carefully read this Agreement prior to signing
it, and that he fully understands this Agreement;
e. He understands and agrees that he will receive
severance pay and benefits in exchange for signing this Agreement, and that he
would not have received severance pay and benefits if he had not signed this
Agreement;
f. EMPLOYEE UNDERSTANDS THAT, BY SIGNING THIS
AGREEMENT, HE WILL LOSE HIS RIGHT TO XXX XXXXXXXX SOUP COMPANY, OR ANY OF ITS
EMPLOYEES OR AGENTS, FOR ANY VIOLATION OF THE AGE DISCRIMINATION IN EMPLOYMENT
ACT (THE FEDERAL LAW WHICH PROHIBITS DISCRIMINATION ON THE BASIS OF AGE), OR ANY
OTHER STATUTE OR OTHER LAW; and
g. He has signed this Agreement voluntarily.
16. Entirety of Agreement; Modifications. Employee
acknowledges and agrees that this Agreement, and the attached Addendum, contain
the entire agreement and understanding concerning the subject matter between
Employee and the Company, and that they supersede and replace all prior
agreements concerning the subject matter of this Agreement, whether written or
oral, except for the Non-Competition Agreement referred to in paragraph 7 of
this Agreement, which is incorporated by reference. Employee also represents
that he has not executed this instrument in reliance on any promise,
representation or statement not contained herein. This Agreement may not be
modified except by a writing signed by Employee and an authorized representative
of the Company.
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17. Governing Law. The parties agree that this Agreement shall
be governed and construed in accordance with the laws of the State of New Jersey
without giving effect to the conflict of law principles. The parties further
irrevocably agree that any disputes or issues arising from or related to this
Agreement shall be brought only in the federal or state court in Camden, New
Jersey, and both parties irrevocably agree to personal jurisdiction and venue in
such New Jersey courts.
18. Attorney's Fees. Employee agrees that if the Company
prevails in any suit or proceeding under this Agreement, Employee will pay
Company all of the Company's attorney's fees, costs and expenses incurred in
connection with such suit or proceeding or the enforcement of the Company's
rights under this Agreement.
This Agreement was entered into in the State of New Jersey.
Employee Company
/s/ F. Xxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxx
Date: May 16, 2001 By: Xxxxxxx X. Xxxxxx
Title: President and CEO
Date: May 14, 2001
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EMPLOYEE: PLEASE SELECT AND COMPLETE ONE OF THE
PARAGRAPHS BELOW.
I, _______________, have read all of the terms of this Agreement. I
have been informed by the Company that I have the right to consult with an
attorney who is not associated with the Company. I have been given sufficient
time and opportunity to consult with an attorney, and I have voluntarily chosen
not to do so. I understand the terms of this Agreement, including the fact that
my employment relationship with the Company is permanently ended, and that the
Agreement releases the Company forever from any legal action arising from my
employment relationship with or my separation from the Company.
Employee
Date:
Prior to signing this Agreement I, F. Xxxxxx Xxxxxxxx, consulted
Xxxxxxx X. Xxxxxxxxx, Esq., at the law firm of Xxxxx Xxxxxx Xxxxxx & Xxxxxxxxx
located at Two Xxxxx Square, Philadelphia, Pennsylvania, who reviewed the
Severance Agreement and General Release and provided advice to me. I understand
the terms of this Agreement, including the fact that my employment relationship
with the Company is permanently ended, and that the Agreement releases the
Company forever from any legal action arising from my employment relationship
with or my separation from the Company.
Employee /s/ F. Xxxxxx Xxxxxxxx
Date: May 16, 2001
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ADDENDUM
SEVERANCE AGREEMENT AND GENERAL RELEASE
BETWEEN
XXXXXXXX SOUP COMPANY
AND
F. XXXXXX XXXXXXXX
1. Employee will be eligible for WIN Plan participation for fiscal 2001, as
determined in accordance with the terms of Xxxxxxxx Soup Company's Management
Worldwide Incentive Plan. Employee understands and agrees that any award of
compensation which is payable under this Plan will be at the sole discretion of
the Compensation and Organization Committee of the Company's Board of Directors
("Compensation Committee") which is permitted to make performance related
reductions in bonus payments. Decisions regarding bonus awards are normally made
at the end of September.
2. Employee was granted 50,833 Restricted Performance Shares (RPS's) under
Xxxxxxxx Soup Company's 1994 Long-Term Incentive Plan, as amended (1994 LTIP),
for the period of fiscal years 2000 through 2002. At Termination Date, the
Employee's RPS's shall immediately be reduced by proration for that portion of
the three-year restriction period during which Employee will not be a Company
employee. After the Termination Date and for the remainder of the RPS
performance period, the Employee will receive dividends on the amount of the
prorated award of 32,500 RPS's. Employee will be entitled, subsequent to the
July 31, 2002, to the delivery of such number of the remaining RPS's that equal
the greater of (i) the prorated 32,500 RPS's earned pursuant to the applicable
performance criteria; or (ii) 50% of 32,500, as determined in accordance with
provisions of the 1994 LTIP. Employee will not be eligible for any LTPP Plus
award. Any payment Employee may receive under 1994 LTIP will be at the sole
discretion of the Compensation Committee, which is permitted to make further
reductions in RPS's earned based on Employee's contributions during the
restriction period. Applicable federal, state and local taxes will be withheld
from the payment of any RPS award. In the event of any conflict between this
Addendum and the 1994 LTIP, the 1994 LTIP will govern.
3. Pursuant to the Agreement to Irrevocably Exchange Stock Options for
Time-Lapse Restricted Stock dated as of January 12, 2001, after the Employee's
Termination Date (JULY 31, 2001) the Employee shall immediately be entitled to
the elimination of the restrictions on 5,820 time-lapse restricted shares and
the remaining 17,897 time-lapse restricted shares shall be immediately
forfeited.
4. Company will permit Employee to exercise, in accordance with the relevant
plan and related agreements, any previously-granted unexercised stock options on
or before the earlier of the expiration date of the options or three years from
Employee's Termination Date (JULY 31, 2004), provided that such options are, by
their terms, exercisable on Employee's Termination Date. In the event of
Employee's death, the special rules set forth in the relevant plan shall govern.
In the event of any conflict between this Addendum and the relevant plan and
related agreements, the relevant plan and related agreements will govern.
5. On May 25, 2000, Employee was granted 40,000 time-lapse restricted shares
that were to vest on May 25, 2002. In accordance with the term of the Time-Lapse
Restricted Stock Agreement dated as of May 25, 2000, these restricted shares
would be forfeited as of the
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Termination Date (JULY 31, 2001). The Company agrees that 23,320 of the
time-lapse restricted shares shall vest on July 31, 2001 and the restrictions on
such 23,320 restricted shares shall be deemed to have lapsed. This amount of
23,320 is based upon the portion of the restriction period during which Employee
will be a Company employee. After the Termination Date Employee shall
immediately be entitled to the elimination of the restrictions on the 23,320
time-lapse restricted shares, provided Employee does not violate the terms of
this Agreement in any material respect. The remaining 16,680 time-lapse
restricted shares shall be immediately forfeited.
6. Employee will not be eligible for any additional awards under the 1994
Long-Term Incentive Plan.
7. All fully vested investment account balances held for the account of Employee
in Xxxxxxxx Soup Company's Deferred Compensation Program ("Program") will be
distributed in accordance with Employee's applicable Distribution Election form
or, if Employee has not made a valid election, in accordance with the default
distribution provisions in the Program. Applicable federal, state and local
taxes will be withheld from the payment of any installment amounts from
Employee's deferral account.
8. Employee will be entitled to allowable benefits under the Company's Personal
Choice Program through JULY 31, 2001.
9. Employee will be provided with outplacement assistance, at a level and manner
as determined by the Company.
10. Employee will vest in and be eligible for pension benefits pursuant to the
Company's Mid-Career Hire Pension Plan and the Company's Retirement and Pension
Plan for Salaried Employees
Employee Company
/s/ F. Xxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxx
Date: May 16, 2001 By: Xxxxxxx X. Xxxxxx
Title: President and CEO
Date: May 14, 2001
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