Exhibit 10.33
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release
(this “ Agreement ”) is entered into as of
January 9, 2008, by and among Andy J. Brewer (the “
Executive ”) and Pregis Holding I Corporation, a
Delaware corporation (“ Pregis I ”), and its
wholly owned subsidiaries Pregis Holding II Corporation, a Delaware
corporation (“ Pregis II ”), and Pregis
Corporation, a Delaware corporation (“ Pregis III
”) (Pregis I, Pregis II and Pregis III, collectively the
“ Companies ”) (each of the Executive and the
Companies, a “ Party ” and, collectively, the
“ Parties ”). The Parties acknowledge that the
terms and conditions of this Agreement have been voluntarily agreed
to and are intended to be final and binding.
RECITALS
WHEREAS, the Parties have previously
entered into an Employment Agreement, dated as of October 12, 2005
(the “ Employment Agreement ”);
WHEREAS, the Executive and the
Companies are parties to a Noncompetition Agreement, dated as of
October 12, 2005 (the “ Noncompetition Agreement
”);
WHEREAS, on October 12, 2005,
April 7, 2006 and February 27, 2007, Pregis I granted to
the Executive options (the “ Options ”) to
purchase an aggregate of 173.33 shares of common stock, par value
$0.01 per share, of Pregis I (the “ Common Stock
”) pursuant to and in accordance with the terms of
Nonqualified Stock Option Agreements between the Executive and
Pregis I entered into on such dates (the “ Option
Agreements ”);
WHEREAS, pursuant to and in
accordance with the terms of the Subscription Agreement between
Pregis I and the Executive, the Executive purchased twenty
(20) shares of Common Stock (the “ Subscription
Agreement ”);
WHEREAS, the Executive separated from
employment in all capacities with the Companies on
November 19, 2007 (the “ Separation Date
”); and
WHEREAS, as a condition precedent and
a material inducement for the Companies to provide to the Executive
the Separation Benefits (as defined in Section 1 hereof) and
for Pregis I to agree to the provisions of Section 3 hereof,
the Executive has agreed to execute this Agreement and be bound by
the provisions herein.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, and for the
monetary and other consideration set forth below, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Separation from
Employment . The Executive and Companies agree that on the
Separation Date, the Executive resigned from any position or office
with or in the Companies or their subsidiaries or affiliates, which
resignations have been accepted as of the Separation Date by the
Companies or their respective subsidiaries or affiliates. The
Executive and Companies understand and agree that from and after
the Separation Date the Executive was no longer authorized to incur
any expenses, obligations or liabilities on behalf of the Companies
or any of
their
subsidiaries or affiliates. In consideration for acceptance of the
terms contained in this Agreement, the Companies shall (a) pay
the Executive his Base Compensation, set at $300,000 as of the
Separation Date, for the period commencing on the Separation Date
through March 19, 2008, at such times and in such amounts as
would have been paid in accordance with the Companies’ normal
payroll procedures had the Executive’s employment continued
after the Separation Date through March 19, 2008; (b) pay the
Executive a prorated amount in respect of the Executive’s
2007 Incentive Bonus (as defined in the Employment Agreement) based
on the actual performance of the Companies through
December 31, 2007 and the number of days in 2007 through the
Separation Date, which the Companies currently expect will be
approximately $116,000 (the “ 2007 Bonus ”),
payable in equal monthly installments over a twelve-month period
beginning with the first payroll period ending after April 1,
2008; and (c) continue to provide the Executive with the same
medical and dental benefits provided immediately prior to the
Separation Date until March 19, 2008 (the payments and
benefits described in clauses (a), (b) and (c) hereof,
the “ Separation Benefits ”); provided ,
however , that the Companies’ obligation to provide
the Separation Benefits shall be conditioned upon (x) the
Executive’s continued compliance with his obligations under
the Noncompetition Agreement (as amended hereby) and (y) the
Executive’s continued compliance with his obligations under
this Agreement, subject to the provisions of Paragraph 1(c) of the
Noncompetition Agreement.
2. Noncompetition
Agreement .
(a) The
Parties hereby agree that Section 1(a) of the Noncompetition
Agreement is amended as follows: the restrictions described in
clause (iii) of Section 1(a) of the Noncompetition Agreement
shall continue until the second anniversary of the Separation Date.
The restrictions set forth in Sections 1(a)(i), (ii) and
(iv) of the Noncompetition Agreement shall continue until
November 19, 2008.
(b) The
Noncompetition Agreement shall otherwise remain unchanged and in
full force and effect.
3. Repurchase of Common
Stock .
(a) Pregis
I and the Executive agree that Pregis I is hereby purchasing from
the Executive for cash twenty (20) shares of Common Stock for
an aggregate purchase price of $400,000, representing full and
adequate consideration for such shares (the “ Repurchase
Payment ”), payable as follows:
(i) 50%
of the Repurchase Payment shall be paid within thirty
(30) days from the date that the Executive submits the share
certificate(s) representing the twenty (20) shares of Common
Stock to the Company; and
(ii) 50%
of the Repurchase Payment shall be paid within thirty
(30) days following the second anniversary of the Separation
Date; provided , however , that the payment described
in this clause (ii) is conditioned on (x) the
Executive’s continued compliance with his obligations under
the Noncompetition Agreement (as amended hereby) and (y) the
Executive’s continued compliance with his obligations under
this Agreement, subject to the provisions of Paragraph 1(c) of the
Noncompetition Agreement.
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(b) In
the event of any conflict between or among the provisions of this
Agreement and the Subscription Agreement, such conflict shall be
resolved in each and every instance in favor of the provisions of
this Agreement.
4. Options . Pregis I
and the Executive agree that all of the Options granted to the
Executive pursuant to the Option Agreements are hereby canceled in
their entirety. In the event of any conflict between or among the
provisions of this Agreement and the Option Agreements, such
conflict shall be resolved in each and every instance in favor of
the provisions of this Agreement.
5. Release of Claims by the
Executive .
(a) In
consideration of the Companies entering into this Agreement, the
sufficiency of which the Executive acknowledges, the Executive,
with the intention of binding himself and his heirs, executors,
administrators and assigns, does hereby release, remise, acquit and
forever discharge the Companies and their subsidiaries and
affiliates (the “ Company Affiliated Group ”),
their present and former officers, directors, executives,
shareholders, agents, attorneys, employees and employee benefit
plans (and the fiduciaries thereof) and the successors,
predecessors and assigns of each of the foregoing (collectively,
the “ Company Released Parties ”) of and from
any and all claims, actions, causes of action, complaints, charges,
demands, rights, damages, debts, sums of money, accounts, financial
obligations, suits, expenses, attorneys’ fees and liabilities
of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and
whether now known or unknown, suspected or unsuspected, which the
Executive, individually or as a member of a class, now has, owns or
holds, or has at any time heretofore had, owned or held, arising on
or prior to the date hereof, against any Company Released Party in
any capacity, including, without limitation, any and all cla
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