EXHIBIT 10.45
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is made as of
this 29th day of August, 1997 by and among SPECIALTY FOODS
CORPORATION, a Delaware corporation ("SFC"), H&M FOOD SYSTEMS
COMPANY, INC., a Delaware corporation ("H&M"), and XXXXXXX X. DAY
(the "Executive"). SFC and H&M are each sometimes referred to
herein individually as an "Employer" and are sometimes referred
to together as the "Employers".
1. Certain of the officers of H&M have expressed concern
about a loss of employment that could result in the event of a
sale or change of control of H&M.
2. In order to induce certain officers of H&M, including
the Executive, not to terminate their employment with H&M in
contemplation of a proposed sale or change of control of H&M, the
Employers desire to provide certain severance benefits to such
officers, including the Executive, if the employment of such
officers is terminated following a sale or change of control of
H&M.
NOW THEREFORE, in consideration of the foregoing, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Termination Resulting from Sale. Upon a Sale
Termination (as defined below):
(a) H&M shall pay to the Executive within 30 days
of the date of termination, all unpaid Base Salary (as defined
below) accrued, and provide the Executive with all benefits and
expense reimbursement to which the Executive would otherwise be
entitled, through and including the date of termination.
(b) In exchange for a General Release in form and
substance reasonably satisfactory to the Employers, H&M shall pay
to the Executive the following:
(i) H&M shall continue payments of Base
Salary to the Executive for the 12-
month period following the date of
termination (the "Payment Period")
at such times as are in effect on
the day prior to the Sale; and
(ii) H&M shall continue medical and
dental insurance benefits during
the Payment Period as in effect for
other employees in like positions.
(c) All payments owed to the Executive pursuant
to Section 1(b) shall be offset by any severance payments paid to
the Executive by the Employers or their successors.
Section 2. Definitions.
(a) "Base Salary" means the Executive's annual
base salary in effect (i) on the day prior to a Sale, or (ii) at
the time of execution of this Agreement, whichever is higher.
(b) "Good Reason" means the continuation of any
of the following (without the Executive's express prior written
consent) after written notice provided by the Executive and the
failure by the Employers to remedy such event within thirty (30)
days after receipt of such notice:
(i) a reduction in the Executive's Base
Salary;
(ii) a relocation of the Executive's
principal place of business to any
location which is not within the
greater Dallas/Ft. Worth
metropolitan area;
(iii)a material adverse change in
the Executive's job
responsibilities or level of
authority, it being understood that
the Executive is the Chief
Executive Officer in a subsidiary
of a consolidated group of
companies; and
(iv) any material breach of this
Agreement by the Employers or their
successors.
Section 3. No Mitigation. In the event of a Sale
Termination, the Executive shall not be required to mitigate the
payments or benefits to be received by the Executive hereunder by
securing other employment, or otherwise.
Section 4. Continued Employment. This Agreement is not
a contract of employment. Nothing expressed or implied in this
Agreement shall create any right or duty of Executive's continued
employment by H&M or its successor. The Employers reserve all
rights to cause the Executive's employment to be terminated at
any time with or without cause.
Section 5. Successors Bound. The rights and obligations
of the Employers hereunder shall inure to the benefit of and are
binding upon the successors of the Employers.
Section 6. Notices and Other Documents. All payments,
requests, notices and the like may be made to the Executive by
mailing the same to the Executive at the address set forth below
or at such other address as the Executive may file in writing
with H&M for that purpose. Notices, requests and the like sent
by the Executive to H&M shall be sufficient if mailed to
Specialty Foods Corporation, 00 Xxx-Xxxxx Xxxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention:
Vice President, Human Resources (with a copy to the General
Counsel of SFC), or to such address as SFC may furnish to the
Executive for this purpose from time to time in writing.
Section 7. Employment Taxes. All payments made under
this Agreement shall be subject to withholding tax, other
employment taxes and other withholds and deductions as required
by applicable law or regulation, as in effect from time to time.
Section 8. Term. This Agreement shall have a term
expiring on December 31, 1999. If a sale shall not have occurred
by December 31, 1999, this Agreement shall expire and be of no
further force or effect.
Section 9. General.
(a) This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Illinois applicable to agreements made and to be performed
entirely in Illinois.
(b) The section headings contained herein are for
reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(c) This Agreement sets forth the entire
agreement and understanding of the parties relating to the
subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement
has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any
alleged representation, promise of inducement not so set forth.
(d) This Agreement and the Executive's rights and
obligations hereunder may not be assigned by the Executive. The
Employers may assign their rights, together with their
obligations hereunder (i) to any successor-in-interest to either
of them; or (ii) to third parties in connection with any sale,
transfer or other disposition of all or substantially all of the
business or assets of either of them; in any event the
obligations of the Employers hereunder shall be binding on their
successors or permitted assigns, whether by merger, consolidation
or acquisition of all or substantially all of either of their
businesses or assets.
(e) This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or
covenants hereof may be waived, only by a written instrument
executed by the parties hereto, or in the case of a waiver, by
the party waiving compliance. The failure of a party at any time
or times to require performance of any provision hereof shall in
no manner affect the right at a later time to enforce the same.
No waiver by either party of the breach of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in
this Agreement.
(f) This Agreement, or any amendment hereto, may
be signed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one
agreement (or amendment as the case may be).
IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the date first written above.
EXECUTIVE:
/s/ Xxxxxxx X. Day
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Name: Xxxxxxx X. Day
Address: 0000 X. Xxxxxxxx Xxx.
Xxxxx Xxx, XX 00000
SPECIALTY FOODS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
H&M FOOD SYSTEMS COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
