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SEPARATION AGREEMENT

Termination Severance Agreement

SEPARATION AGREEMENT | Document Parties: PINNACLE FOODS FINANCE LLC | Blackstone Group | Crunch Holding Corp | Peak Holdings LLC | Vedder Price PC You are currently viewing:
This Termination Severance Agreement involves

PINNACLE FOODS FINANCE LLC | Blackstone Group | Crunch Holding Corp | Peak Holdings LLC | Vedder Price PC

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Title: SEPARATION AGREEMENT
Date: 8/12/2009
Law Firm: Simpson Thacher;Vedder Price    

SEPARATION AGREEMENT, Parties: pinnacle foods finance llc , blackstone group , crunch holding corp , peak holdings llc , vedder price pc
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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.

PAYMENTS AND BENEFITS

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.

 

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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

 

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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).

 

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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.

 

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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


 
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