Exhibit 10.32
EXECUTION VERSION
SEPARATION
AGREEMENT
This Separation Agreement (“
Agreement ”), dated as of July 31, 2009, is
entered into by and among Jeffrey P. Ansell (“ Ansell
”), Crunch Holding Corp. (the “ Company ”)
and Peak Holdings LLC (“ Holdings ”). For the
purposes of this Agreement, (x) the Company, Holdings and each
of their respective subsidiaries and affiliates shall collectively
mean the “Company Group” and (y) each member of
the Company Group, together with its successors, subsidiaries,
officers, directors and each holder, directly or indirectly (as of
the date of this Agreement), of at least ten percent (10%) of
the outstanding common stock of the Company or membership interests
of Holdings are collectively referred to as the “
Beneficiaries .”
WHEREAS, the Company and Ansell
entered into an Employment Agreement, dated as of April 2,
2007 (as amended, modified or supplemented from time to time, the
“ Employment Agreement ”) and Holdings and
Ansell entered into a Management Unit Subscription Agreement, dated
as of April 2, 2007 and amended on March 10, 2009 (as
amended, modified or supplemented from time to time, the “
Unit Agreement ”);
WHEREAS, Ansell’s employment
as Chief Executive Officer of the Company and Holdings (and his
employment with each member of the Company Group) terminated on
July 10, 2009 (the “ Termination Date ”);
and
WHEREAS, Ansell, the Company and
Holdings have agreed to resolve and settle all matters with respect
to events, including, but in no way limited to, Ansell’s
employment with the Company and/or services to Holdings,
Ansell’s rights as an equityholder of any member of the
Company Group, and the termination of Ansell’s employment
and/or services, in each case through the date of this Agreement;
and
NOW, THEREFORE, in consideration of
the recitals, promises, and other good and valuable consideration
specified herein, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1.1 Termination of Employment;
Resignations . Ansell’s employment as an officer and
employee of each of the Company, Holdings and each other member of
the Company Group, terminated effective as of Termination Date in
accordance with Section 7(c) of the Employment Agreement. In
addition, Ansell hereby resigns from the Boards of Directors or
other governing body (and any committee thereof) of each of the
Company, Holdings and each other member of the Company Group,
effective as of date hereof. In furtherance of the foregoing
provisions, the Company, Holdings and Ansell shall execute or cause
to be executed any documentation reasonably necessary to effect
such resignations.
1.2 Accrued Benefits . The
Company will pay to Ansell the amounts and/or provide the benefits
set forth below:
(1) any unpaid Base Salary and the
15 days of unused vacation accrued for the 2009 calendar year
through the Termination Date, payable within fifteen days following
the Termination Date;
(2) reimbursement, within 60 days
(following submission by Ansell to the Company of appropriate
supporting documentation) for any unreimbursed business expenses
properly incurred by Ansell in accordance with Company policy prior
to the Termination Date; provided, that claims for such
reimbursement (accompanied by appropriate supporting documentation)
are submitted to the Company within 90 days following the
Termination Date; and
(3) such vested employee benefits,
if any, as to which Ansell may be entitled under the tax-qualified
employee benefit plans of the Company (the amounts described in
clauses (1) through (3) hereof being referred to as the
“ Accrued Benefits ”).
1.3 Payments and Benefits .
Subject in each case to the expiration of the Revocation Period (as
defined in Section 2.2 below), the Company will pay to Ansell
the amounts and provide the benefits specified in this
Section 1.3 in consideration for Ansell entering into this
Agreement, specifically including the General Release (as described
in Section 2 below) and other restrictive covenants identified
herein or in the Employment Agreement:
(1) Pro-Rated Target Bonus :
$411,525 (i.e. 53.1% of the Target Annual Bonus), payable within 30
days after the Revocation Date;
(2) Severance: $2,325,000,
which shall be payable to Ansell in equal installments in
accordance with the Company’s normal payroll practices, as in
effect on the Termination Date, over eighteen months after such
date; provided , that the aggregate amount described in this
clause (2) shall be reduced by the present value of any other
cash severance benefits payable to Ansell under any other severance
plans, programs or arrangements of the Company or its
affiliates;
(3) Continued Medical
Coverage: Continued coverage under the Company’s group
health, life and disability plans until the earlier of
(i) eighteen months from the Termination Date and
(ii) the date Ansell is or becomes eligible for comparable
coverage (determined, to the extent practicable, on a
coverage-by-coverage and benefit-by-benefit basis) under health,
life and disability plans of another employer; and
(4) 2009 Bonus Opportunity:
Subject to the Company’s achievement of the 2009 annual
EBITDA performance objectives above target as established by the
Board, 53.1% of the incremental amount (if any) above the Target
Annual Bonus (i.e. $775,000) up to the maximum Annual Bonus
potential as set forth in the Employment Agreement, which amount
(if any) shall be payable at the time that bonuses are paid to
other executives of the Company.
(5) Outplacement. The Company
shall reimburse Ansell for services of an executive outplacement
agency, provided that such amount shall not exceed
$25,000.
(6) Professional Expenses.
The Company shall reimburse Ansell’s reasonable professional
fees incurred to negotiate and prepare this Agreement and any
related agreements, provided that such amount shall not
exceed $10,000.
2
1.4 Equity . Subject to the
expiration of the Revocation Period and to Ansell’s
compliance with the restrictive covenants identified herein or in
the Employment Agreement:
(a) Class B-1 Units. In
addition to the 225 Class B-1 Units that are Vested Units,
notwithstanding anything to the contrary in the Unit Agreement,
84.1 Class B-1 Units shall become Vested Units (the “ 2009
Time B-1 Units ”) on the Termination Date (in lieu of the
30.5 Class B-1 Units that otherwise would have become Vested Units
on the Termination Date pursuant to Part 2 of Schedule I of the
Unit Agreement), for a total of 309.1 Class B-1 Vested
Units.
(b) Class B-2 Units. In
addition to the 225 Class B-2 Units that are Vested Units,
notwithstanding anything to the contrary in the Unit Agreement,
subject to Ansell’s compliance with Section 4.2 hereof,
225 Class B-2 Units that would have (but for Ansell’s
termination of employment) become eligible to vest based on
achievement of the EBITDA performance objectives for the 2009
fiscal year (the “ Continuing 2009 Performance B-2
Units ”) shall remain outstanding following the
Termination Date and shall either (i) become Vested Units
subject to the achievement of the EBITDA performance objectives for
the 2009 fiscal year, or (ii) be forfeited without
consideration if such EBITDA performance objectives are not
achieved.
(c) Forfeiture of All Unvested
Units . Except as otherwise set forth above with respect to the
Class B-1 Units and Class B-2 Units that previously vested, the
2009 Time B-1 Units that vest pursuant to Section 1.4(a) and
the Continuing 2009 Performance B-2 Units that may vest
pursuant to Section 1.4(b), all Unvested Units as of the
Termination Date shall be forfeited without consideration on such
date.
(d) Repurchase of Class B
Units .
(1) Holdings or one of the
Beneficiaries identified by Holdings shall purchase, and Ansell (or
his Permitted Transferees, if any) will sell, 154.55 Class B-1
Units and 112.5 Class B-2 Units, 267.05 Class B Units in total and
constituting one-half of the 534.1 Class B Units held by Ansell (or
his Permitted Transferees, if any) that are Vested Units (giving
effect to Section 1.4(a) above). If the Continuing 2009
Performance B-2 Units become Vested Units pursuant to
Section 1.4(b), then Holdings or one of the Beneficiaries
identified by Holdings or one of the Beneficiaries identified by
Holdings shall also purchase, and Ansell (or his Permitted
Transferees, if any) will sell, 112.5 of those Continuing 2009
Performance B-2 Units, which together with the Vested Units in the
immediately preceding sentence would be a total of 379.55
repurchased Class B Units (collectively, the “ Repurchased
Units ”).
(2) The purchase price of the
Repurchased Units (per Unit) shall be determined in good faith by
the Board (without regard to discounts for marketability of such
equity or minority status) taking into consideration
Holdings’ annual independent appraiser’s report for the
2009 fiscal year that is normally obtained after fiscal year-end by
Holdings for independent purposes, which Holdings and Ansell agree
shall be deemed the “Fair Market Value” under
Section 4.2(d) of the Unit Agreement. The closing of
Holdings’ (or Beneficiary’s) purchase of the
Repurchased Units shall occur within 30 days following the date
that the independent appraiser’s
3
report is completed and delivered to
Holdings, a copy of which shall be delivered to Ansell (or his
Permitted Transferee). The purchase price of the Repurchased Units
shall be paid in a single sum in cash to Ansell (or his Permitted
Transferee). Ansell (or his Permitted Transferee) shall execute
such agreements and instruments as may be required to implement the
repurchase of his Vested Units.
(e) Waiver of Call Rights and Put
Rights . Notwithstanding anything to the contrary in the Unit
Agreement, the Company and Ansell (including on behalf of their
respective Affiliates) each hereby waive and relinquish any rights
to require the purchase or sale of any Class B Units (except as
described in Section 1.4(d) above and the following proviso),
including in respect of the Continuing 2009 Performance B-2 Units
that may become Vested Units pursuant to Section 1.4(b) above
after the date of this Agreement (it being understood that such
Continuing 2009 Performance B-2 Units shall be forfeited if they do
not become Vested Units pursuant to Section 1.4(b)); provided
that if during the 18-month Restricted Period under
Section 8(a) of the Employment Agreement Ansell engages in
Competitive Business, then the Company shall have the right and
option to purchase for a period of 210 days following the discovery
by the Company’s Board of such engagement in a Competitive
Business, and Ansell and each member of his Family Group shall be
required to sell to the Company, any or all of such Units then held
by such member of Ansell’s Family Group at a price equal to
then-Fair Market Value determined in accordance with
Section 4.2(d) of the Unit Agreement.
(f) Repurchase of Class A
Units . Notwithstanding anything to the contrary in the Unit
Agreement, Ansell shall notify Holdings in writing within 14 days
of the date hereof of his election to require Holdings or one of
the Beneficiaries identified by Holdings to purchase, and Ansell
(or his Permitted Transferees, if any) to sell, all 1,350,000
Class A Units held by Ansell (or his Permitted Transferees, if
any), within 30 days following the date hereof for a single sum
cash payment, in exchange for $1,444,500 which the parties agree
shall be the Fair Market Value of such Units. If Ansell does not
elect to have his Class A Units purchased as set forth above,
Holdings hereby agrees not to exercise its call right with respect
to such Units.
(g) Any Class A Units or Class
B Units retained by Ansell or Ansell’s Family Group remain
subject to the terms and conditions of the LLC Agreement and the
Securityholders Agreement.
1.5 Tax Withholding; Payments
. The Company and/or Holdings may withhold from any amounts payable
in cash under this Agreement or otherwise such Federal, state and
local income, employment and other taxes as may be required to be
withheld in respect of any payment and/or any benefit provided for
under this Agreement pursuant to any applicable law or
regulation.
1.6 Full Satisfaction of
Potential Claims . Ansell hereby acknowledges and agrees that
his receipt and satisfaction of all payments and benefits provided
in this Section 1 of this Agreement will constitute full and
final payment, accord and satisfaction of any and all potential
claims described in the General Release (as defined in
Section 2 of this Agreement and subject to the terms and
limitations in the General Release) against the Company Releasees
(as defined in General Release and subject to the terms and
limitations in the General Release).
4
1.7 No Mitigation . Ansell
shall not be required to mitigate any amount of any payment
provided pursuant this Agreement by seeking other employment, and,
except as otherwise provided under Sections 1.3(3) or 4.2 of this
Agreement, such payments shall not be reduced by any compensation
or benefits received from any subsequent employer or other
endeavor.
|
|
2.
|
RELEASES;
ANSELL REPRESENTATIONS
|
2.1 General Release . For and
in consideration of the payment of the amounts and the provision of
the benefits described in Section 1 of this Agreement, Ansell
hereby agrees to execute and deliver a release of all claims
against each member of the Company Group as described in the form
attached as Exhibit I hereto (the “ General Release
”).
2.2 Ansell’s
Representations and Warranties . Ansell represents that he has
read carefully and fully understands the terms of this Agreement,
and that Ansell has been advised to consult with an attorney and
has availed himself of the opportunity to consult with an attorney
prior to signing this Agreement. Ansell acknowledges and agrees
that he is executing this Agreement willingly, voluntarily and
knowingly, of his own free will, in exchange for the payments and
benefits described in Section 1 of this Agreement, and that he
has not relied on any representations, promises or agreements of
any kind made to him in connection with his decision to accept the
terms of this Agreement, other than those set forth in this
Agreement. Ansell further acknowledges, understands, and agrees
that as of the Termination Date his employment and/or service with
the Company and each other member of the Company Group terminated,
that the provisions of Section 1 of this Agreement are in lieu
of any and all payments and benefits to which Ansell may otherwise
be entitled to receive pursuant to the Employment Agreement and the
Unit Agreement. Ansell represents and warrants that there is no
agreement, arrangement or understanding (whether or not legally
binding) between any member of the Company Group, on the one hand,
and him or any person or legal entity with whom he is affiliated or
related (including, without limitation, as an officer, director,
principal, shareholder, limited or general partner, member or
family member), on the other hand (it being understood that the
parties intend that any such agreement, arrangement or
understanding shall be terminated under the General Release, unless
expressly provided for therein or in this Agreement, and the
parties further agree from time to time to cause their related
parties to enter into any documentation necessary to give effect to
such intention). Ansell acknowledges that he has been advised
that he is entitled to take at least twenty-one (21) days to
consider whether he wants to sign the General Release. Ansell
understands that, except as otherwise expressly provided for under
this Agreement, he will not receive any payments or benefits under
this Agreement (other than the Accrued Benefits) until the seven
(7) day revocation period provided for under the General
Release has passed, and then, only if he has not revoked the
General Release (such period during which no such revocation has
occurred, the “ Revocation Period ”); provided,
however, that if such revocation occurs, the Company, Holdings and
Ansell acknowledge that the parties will retain or be restored to
all rights under the Employment Agreement and the Unit Agreement or
otherwise that applied absent signing of this Agreement and the
General Release.
5
|
|
3.
|
EFFECTS OF
SETTLEMENT; WAIVER OF JURY TRIAL
|
3.1 No Admission . Ansell and
the Company, on behalf of the Beneficiaries, agree that the
payments and benefits by any member of the Company Group, and the
acceptance by Ansell of the same, all as provided in Section 1
of this Agreement, and the execution of this Agre