Exhibit 10.23
AGREEMENT
THIS AGREEMENT (hereinafter "the Agreement" or "this Agreement"),
dated as of February 19, 1997 by and between INTERNATIONAL MULTIFOODS
CORPORATION, a Delaware corporation ("Multifoods"), and XXXXXXXX
XXXXXX, an employee of Multifoods, residing in the State of Colorado
("Mishra").
WITNESSETH THAT:
WHEREAS, Mishra is an employee of Multifoods; and
WHEREAS, Multifoods and Mishra have agreed that Mishra's
employment with Multifoods shall terminate effective on April 30, 1997.
NOW, THEREFORE, in consideration of the preceding recitals and of
the mutual covenants and agreements hereinafter set forth, Multifoods
and Mishra agree as follows:
1. Termination Date.
Mishra's employment with Multifoods shall terminate effective on
April 30, 1997 (the "Termination Date"). Notwithstanding the
Termination Date, the employment relationship between Multifoods and
Mishra prior to the Termination Date shall be at the will of the
parties.
2. Termination Allowance and Waiver of Restriction on Restricted
Common Stock.
A. Multifoods shall pay Mishra, by check, on the Termination
Date, an amount equal to $137,500, in a lump sum, less all applicable
federal, state and local withholding taxes (the "Termination
Allowance"). The Termination Allowance payable to Mishra under this
Agreement is in lieu of any other amounts which may be payable to
Mishra for severance pay under any prior oral or written agreement
between Multifoods and Mishra. All tax liability, with respect to the
Termination Allowance paid to Mishra under this Agreement (other than
employer withholding and employer payroll taxes) shall be Mishra's sole
responsibility.
X. Xxxxxx was awarded and granted (i) 6,000 shares of
restricted Common Stock, par value $0.10 per share, of Multifoods on
September 15, 1994 ("1994 Restricted Common Stock"), under and pursuant
to that certain Restricted Stock Award Agreement, dated as of September
15, 1994 between Multifoods and Mishra ("1994 Restricted Stock Award
Agreement"); and (ii) 13,260 shares of restricted Common Stock, par
value $0.10 per share, of Multifoods on September 15, 1995 ("1995
Restricted Common Stock"), under and pursuant to that certain
Restricted Stock Award Agreement, dated as of September 15, 1995
between Multifoods and Mishra ("1995 Restricted Stock Award
Agreement"); by the Compensation Committee of the Board of Directors of
Multifoods (the "Compensation Committee"). Under the 1994 Restricted
Stock Award Agreement, the 1994 Restricted Common Stock will vest in
Mishra on September 15, 1997, and under the 1995 Restricted Stock Award
Agreement, the 1995 Restricted Common Stock will vest in Mishra on
September 15, 1997 if Mishra is an employee of Multifoods on such date.
(Pursuant to the 1995 Restricted Stock Award Agreement, Mishra elected,
in writing, to defer the vesting date of the 1995 Restricted Common
Stock for one year from September 15, 1996 to September 15, 1997.) If
Mishra's employment were to terminate prior to September 15, 1997,
Mishra would forfeit the 1994 Restricted Common Stock and the 1995
Restricted Common Stock. As part of the consideration for this
Agreement, the Compensation Committee has, pursuant to special action
of the Compensation Committee, waived the vesting requirements on the
1994 Restricted Common Stock and the 1995 Restricted Common Stock, so
that such shares, 6000 and 13,260 , respectively, will vest on the
earlier to occur of (i) April 30, 1997 or (ii) the last date of
Mishra's employment with Multifoods provided that the rescission period
described in Section 3.D. below has expired (the "Waiver of Restriction
on the Restricted Common Stock"), and further provided that Mishra has
not rescinded or revoked this Agreement, including the Release (as
defined below), in which case all of the 1994 Restricted Common Stock
and all of the 1995 Restricted Common Stock, and all of the rights
relating thereto, including the payment of accrued dividends, will be
forfeited immediately as of the date of such rescission.
RELEASE AGREEMENT
3. Release.
A. In consideration of the Termination Allowance payable by
Multifoods to Mishra set forth and described in Section 2 of this
Agreement, the Waiver of Restriction on the Restricted Common Stock,
the agreements of Multifoods set forth in that certain letter, dated
January 3, 1997, to Mishra from X.X. Xxxxxxxx, Executive Vice President
of Multifoods, attached hereto as Exhibit A (the "Letter Agreement"),
and other good and valuable consideration, Mishra 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 Mishra or his
heirs, executors, administrators, legal representatives, successors or
assigns and beneficiaries have or may have in connection with Mishra's
employment with and termination of employment from Multifoods, for all
time to the date of this Agreement, except for: (i) this Agreement and
the Termination Allowance payable to Mishra under the terms of this
Agreement; (ii) any indemnification right to which Mishra 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 insurance issued to Multifoods
under which Mishra is an insured and entitled to coverage; (iii) any
right that Mishra has as a result of his participation in any health
and welfare and pension benefit plans of Multifoods to which Mishra is
entitled by reason of his employment by Multifoods under the terms and
conditions set forth in such plans as of the date of this Agreement;
and (iv) the 1994 Restricted Stock Award Agreement and the 1995
Restricted Stock Award Agreement, as modified by the Waiver of
Restriction on the Restricted Common Stock, and any Non-Qualified Stock
Option Agreements between Multifoods and Mishra, under the terms and
conditions set forth in such Restricted Stock Award Agreements and Non-
Qualified Stock Option Agreement (the foregoing hereinafter called the
"Release").
B. Except as specifically provided in Paragraph A of this
Section 3, the Release applies to any action, claim, demand, debt,
contract and agreement that Mishra has or may have as of the date of
this Agreement including, without limitation, any and all claims
relating to Mishra's employment with and termination of employment from
Multifoods including, but not limited to, breach of contract claims;
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. Xxxxxx acknowledges and agrees that Multifoods' agreement
to pay the Termination Allowance, Multifoods' agreements set forth in
the Letter Agreement, and the Waiver of Restriction on the Restricted
Common Stock, do not constitute an admission that Multifoods or any of
the other Released Parties has engaged in any wrongful conduct towards
Mishra, has acted in any way to cause injury to Mishra, or is
responsible or legally obligated to Mishra in any way, except as
specifically provided in this Agreement.
X. Xxxxxx acknowledges that he has been advised and that he
understands, that he has fifteen (15) days from the date that he signs
this Agreement 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. Mishra also understands that if he
rescinds this Agreement, he shall forfeit the Termination Allowance,
and the agreements of Multifoods set forth in the Letter Agreement and
the Waiver of Restriction on the Restricted Common Stock shall
terminate and be canceled. Mishra 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 fifteen (15) day 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. Xxxxxx 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. Mishra's manual
signature on this Agreement, set forth below in the signature block,
constitutes Mishra's 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 or any of the Released
Parties or their attorneys.
NOTE
MULTIFOODS HEREBY ADVISES MISHRA TO CONSULT WITH
AN ATTORNEY-AT-LAW OF MISHRA'S CHOICE BEFORE
MISHRA SIGNS AND DELIVERS THIS AGREEMENT.
4. Multifoods' Representation.
Multifoods represents to Mishra that, as of the date of this
Agreement, Multifoods has no knowledge or any information which would
cause Multifoods to assert a claim against Mishra in connection with
Mishra's employment to the date of this Agreement.
5. Confidential Information.
X. Xxxxxx'x Covenant of Confidentiality
Further, in consideration of the Termination Allowance payable by
Multifoods under Section 2 of this Agreement, the agreements of
Multifoods set forth in the Letter Agreement and the Waiver of
Restriction on the Restricted Common Stock, Mishra covenants and agrees
that during and after his employment with Multifoods he will maintain
in strict confidence and not disclose to any person, corporation,
partnership, entity or enterprise, any information, including without
limitation, financial information, strategic and business plans of
Multifoods or any of its subsidiaries, or any confidential or
proprietary information of Multifoods or any of its subsidiaries. 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 Mishra; or (iii) which is disclosed
to Mishra 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 Mishra is compelled by subpoena, civil
investigative demand, court order or other legal process in any
proceeding to disclose any confidential information described in
Paragraph A immediately above, after the Termination Date, Mishra 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 Mishra shall be compelled to disclose any
such confidential information, based upon the advice of Mishra's
counsel, Mishra may disclose such information without liability under
this Agreement, provided that Mishra 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 Mishra is required to disclose such information, and in any event,
such disclosure shall be limited to the specific information that
Mishra is legally required to disclose based upon the advice of
Mishra's counsel.
C. Remedies.
Mishra acknowledges and agrees that money damages would not be a
sufficient remedy for any breach or threatened breach by Mishra of his
covenant of confidentiality set forth in Paragraph A of this Section 5;
and that, in addition to all other remedies that Multifoods shall be
entitled to, Multifoods shall be entitled to injunctive or other
equitable relief as a remedy for any such breach or threatened breach.
6. Mishra's Covenant of Nonsolicitation.
A. Nonsolicitation. Mishra covenants and agrees that he will
not, directly or indirectly: (i) for a period of two (2) years
following the Termination Date, employ or attempt to employ any
director, officer or employee of Multifoods or any of its subsidiaries,
or otherwise interfere with or disrupt any employment relationship
(contractual or otherwise) between Multifoods and any director, officer
or employee of Multifoods or any of its subsidiaries; (ii) for a period
of two (2) years following the Termination Date, solicit, request,
advise, or induce any present or potential customer, supplier, or other
business contact of the Company to cancel, curtail, or otherwise change
its relationship with Multifoods or any of its subsidiaries; or (iii)
at any time after the Termination Date, publicly criticize or disparage
in any manner or by any means Multifoods or any of its subsidiaries,
its and their personnel, or any aspect of its management policies,
operations, products, services, or practices.
B. Remedies. Mishra acknowledges and agrees that money
damages would not be sufficient remedy for any breach or threatened
breach by Mishra of his covenants set forth in this Section 6; and
that, in addition to all other remedies that Multifoods shall be
entitled to, Multifoods shall be entitled to injunctive or other
equitable relief as a remedy for such breach or threatened breach.
7. No Waiver.
The waiver by Multifoods or Mishra of a breach by Multifoods or
Mishra, as applicable, of any term of this Agreement shall not operate
or be construed as a waiver of any subsequent breach by Multifoods or
Mishra, as applicable.
8. Governing Law.
This Agreement shall be interpreted under and governed by the laws
of the State of Minnesota.
9. Entire Agreement.
This Agreement, including the Letter Agreement, contains the
entire agreement between Multifoods and Mishra with respect to Mishra's
termination as an employee of Multifoods, and supersedes any prior oral
or written agreement or understanding between the parties with respect
to severance pay and the other matters described in this Agreement.
IN WITNESS WHEREOF, Multifoods and Mishra have signed and
delivered this Agreement as of the day and year first above written.
WITNESS: INTERNATIONAL MULTIFOODS CORPORATION
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Executive Vice President
WITNESS:
/s/ Xxxx Xxxxxxxx /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
