Exhibit 10.23
SEPARATION
AGREEMENT
Sara Lee Corporation (the
“Corporation” or the “Company”) and
Lambertus M. (Theo) de Kool (the “Executive”) enter
into this Separation Agreement (this “Agreement”),
which was received by the Executive on May 18, 2009, signed by
the Executive on May 18, 2009, and is effective on
May 26, 2009 (the “Effective Date”). The Effective
Date shall be no less than 7 days after the date signed by the
Executive. In addition, as described in paragraph 19 below, the
Executive shall re-execute a Release on the Termination
Date.
W I T N E S S E T
H:
WHEREAS, the Executive has been
employed by the Corporation as a Corporate Officer.
WHEREAS, the Executive’s
employment with the Corporation will terminate as of June 30,
2009 (the “Termination Date”); and
WHEREAS, the Executive and the
Corporation have negotiated and reached an agreement with respect
to all rights, duties and obligations arising between them,
including, but in no way limited to, any rights, duties and
obligations that have arisen or might arise out of or are in any
way related to the Executive’s employment with the
Corporation and the conclusion of that employment.
NOW, THEREFORE, in consideration of
the covenants and mutual promises herein contained, it is agreed as
follows:
1. Date of Termination . As
of the Termination Date, the Executive shall cease to be a
Corporate Officer of the Corporation. Until the Termination Date
and subject to the terms and conditions of this Agreement, the
Corporation will continue to employ the Executive and the Executive
shall receive the same compensation and benefits the Executive
presently receives. The Executive agrees, at the direction of the
Corporation, to resign the Executive’s employment and all
appointments the Executive holds with the Corporation, its
operating divisions, subsidiaries and affiliates on the Termination
Date. The Executive understands and agrees that the
Executive’s employment with the Corporation will conclude on
the close of business on the Termination Date. It is further
understood and agreed that the Executive will not be required to
work out of the Corporation’s offices beginning on the
earlier of two weeks after the date Executive’s successor
begins employment with the Corporation or May 31, 2009;
however, the Executive is expected to provide transition services
and make himself available to the Corporation for advice and
counsel through and including the Termination Date.
2. Salary Continuation
Payments . Provided this Agreement is signed and not revoked by
the Executive (as set forth in Paragraph 19 below) prior to the
Effective Date, and subject to the terms of the Sara Lee
Corporation Severance Plans for Corporate Officers effective as of
June 30, 2006 and as most recently amended and restated
effective January 1, 2009 (the “Severance Plan”),
a copy of which the Executive acknowledges receiving, the
Corporation agrees to pay the Executive, during the 24 month-period
commencing on the day following the Termination Date (the
“Severance Period”), the gross amount of $3,568,300
payable in equal monthly installments of $148,679.17 in accordance
with the Corporation’s normal payroll practices, less
(i) all applicable withholding taxes and (ii) other
customary payroll deductions authorized by the Executive
(collectively, the “Salary Continuation Payments”). The
Salary Continuation Payments will commence on the first payroll
date following the Termination Date or following the eighth day
after the Executive has signed this Agreement without revoking it
pursuant to Paragraph 19 below, whichever is later. Notwithstanding
anything in this Agreement to the contrary, certain Salary
Continuation Payments (or a portion thereof) may be
temporarily withheld as set forth in
Section 2.6 of the Severance Plan in order to comply with
Section 409A of the Internal Revenue Code (the
“Code”) and the regulations and guidance promulgated
thereunder (collectively, “Section 409A”). Salary
Continuation Payments are not eligible to be deferred under any of
the Corporation’s deferred compensation plans. The Salary
Continuation Payments shall cease if the Executive is reemployed by
the Corporation.
3. Annual Bonus . Provided
this Agreement is signed and not revoked by the Executive as set
forth in Paragraph 19 below, the Corporation agrees to pay the
Executive his 2009 fiscal year annual bonus, reflecting the
Executive’s service for the entire 2009 fiscal year to the
extent earned under the Annual Incentive Plan of the Corporation.
For purposes of calculating the amount of any bonus payment, the
Corporation will use the Corporation’s actual financial
performance results for the 2009 fiscal year. The bonus payment
shall be reduced by (i) all applicable withholding taxes and
(ii) other customary payroll deductions authorized by the
Executive and shall be paid to the Executive on the same date on
which active participants under the plan are paid bonuses. The
Executive shall not participate in any annual bonus plan of the
Corporation for any fiscal year ending after the 2009 fiscal
year.
4. Stock Options and Long-Term
Incentive Awards .
(a) During the Severance Period, the
Executive’s stock options shall continue to vest and be
eligible for exercise in accordance with the terms and conditions
of the stock option agreements in force between the Executive and
the Corporation. During the Severance Period, the Executive’s
stock options shall continue to be governed by all of the terms and
conditions of the stock option agreements in force between the
Executive and the Corporation. Following the end of the Severance
Period, the Executive shall be treated as a retired participant
under the Corporation’s stock option program. As a retired
participant, each of the Executive’s then outstanding stock
options will continue to vest and may be exercised until the
expiration date of the option.
(b) The Executive shall receive the
following distributions (collectively, the “Long Term
Incentive Awards”) of restricted share units and performance
share unit awards under the Corporation’s long-term incentive
plans:
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2/9/05 grant of retention
restricted share units (RSUs) - grant of 91,165 restricted share units -
distribute 91,165 shares after the 1/27/10 vesting date.
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2/9/05 grant of retention
performance share units (PSUs) - grant of 91,164 restricted share units -
91,164 shares eligible for distribution based upon actual
performance under the program, shares earned will be distributed
after the 1/27/10 vesting date.
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8/31/06 grant of 46,450
restricted performance share units (PSUs) under the EMLTIP FY07 - FY09 – 46,450
shares eligible for distribution based upon actual performance
under the program, shares earned will be distributed after the
8/31/09 vesting date.
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8/30/07 grant of 59,510
restricted performance share units (PSUs) under the EMLTIP FY08 – FY10 –
59,510 shares eligible for distribution based upon actual
performance under the program, shares earned will be distributed
after the 8/31/10 vesting date.
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8/28/08 grant of 86,768
restricted performance share units (PSUs) under the EMLTIP FY09 – FY11 –
86,768 shares eligible for distribution based upon actual
performance under the program, shares earned will be distributed
after the 8/31/11 vesting date.
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The awards shall be reduced by
(i) all applicable withholding taxes and (ii) other
customary payroll deductions authorized by the Executive, and the
net shares shall be distributed to the Executive at the same time
as other participants in these plans receive their awards for the
applicable grant or, if there are no other participants, within
thirty (30) days following the vesting date. The Executive
shall not be entitled to any other Long-Term Incentive Award under
the Corporation’s long-term incentive plans.
5. Health and Life Insurance
Continuation .
(a) The Executive’s current
XHI health insurance coverage, which is provided through the
Zilveren Kruis insurance company, will continue on a
non-contributory basis during the Severance Period while the
Executive is domiciled in the United States. If the Executive
returns to the Netherlands during the Severance Period, the
Executive’s health care insurance coverage will transfer to
the regular Zilveren Kruis program with comparable coverage on a
non-contributory basis. After the Severance Period, the Executive
may continue his insurance based upon the standard terms and
conditions applicable to a retiree of the Company in the
Netherlands with all costs borne by the Executive.
(b) The Executive’s
participation in the welfare benefit plans generally available to
other Corporate Officers of the Corporation shall cease as of the
Termination Date; however, the Executive shall have the right, at
the Executive’s expense, to exercise such conversion
privileges as may be available under such plans. The Corporation
will continue to fund the individual universal life insurance
policy (in an amount equal to three times the Executive’s
base salary in effect immediately prior to the Termination Date,
during the Severance Period, and one times the Executive’s
base salary in effect immediately prior to the Termination Date,
after the Severance Period) provided to the Executive under the
Corporation’s Executive Life Insurance Plan in accordance
with the terms and conditions of such plan, as such plan is in
effect from time to time.
6. Non-Qualified Supplemental
Executive Retirement Plan (SERP) Benefits . For purposes of
determining the amount of the Executive’s supplemental
pension benefit under the Sara Lee Corporation Supplemental
Executive Retirement Plan (“Supplemental Plan”) and the
Executive’s eligibility for such supplemental pension, the
Severance Period shall be considered as vesting and benefit service
and the Executive’s Salary Continuation Payments plus 75% of
the Executive’s 150% annual bonus target opportunity, or
112.5%, shall be considered eligible pay. In addition, for purposes
of determining the amount of the Executive’s supplemental
401(k) annual company contribution benefit under the Supplemental
Plan, the Severance Period shall be considered as vesting service
and the Executive’s Salary Continuation Payments plus 75% of
the Executive’s 150% annual bonus target opportunity, or
112.5%, shall be considered eligible pay. During the Severance
Period, Executive will receive, through the SERP, the 401(k) annual
company contribution as if the Severance Period were deemed a
period of employment with the Corporation.
Furthermore as provided in the
Executive’s Letters of Understanding dated April 26,
2002 and January 22, 2008 (the “Letters of
Understanding), the Corporation will prepare a calculation of the
pension benefits the Executive would have accrued under the
Corporation’s Dutch pension plan (the “Dutch Pension
Benefits”) had the Executive continued to participate in that
plan and earned the same compensation he actually earned during the
period of time between January 1, 2002 and June 30, 2009
(the “Assignment Period”). To the extent that the sum
of the Executive’s accrued Dutch pension benefit prior to the
Assignment Period plus the
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benefits accrued by the Executive under both the
Corporation’s U.S. pension plan and 401(k) Plan during the
Assignment Period are less than the Dutch Pension Benefits, the
Corporation will make up that difference by providing an additional
benefit equal to such amount under the Supplemental
Plan.
7. Relocation/Repatriation .
Provided this Agreement is signed and not revoked by the Executive
as set forth in Paragraph 19 below, the Corporation will pay the
costs associated with relocating the Executive and his family to De
Ronde Venen, The Netherlands within twelve months of the
Termination Date, subject to the Corporation’s normal
relocation policies and provided that another company is not also
paying for Executive’s relocation in connection with new
employment. Any such amounts shall be paid by the Corporation
directly to the vendor or vendors that provided the covered
relocation service to or on behalf of the Executive. The
Corporation shall pay any amounts due to such vendors hereunder in
a timely manner, and in all events no later than the last day of
the calendar year following the calendar year in which the expenses
were incurred. If the Executive chooses to relocate to a country
other than The Netherlands, the Corporation will pay costs up to a
maximum amount equivalent to a relocation to De Ronde Venen, The
Netherlands. The Corporation will surface ship two cars that have
been owned by the executive for at least six months, as of the
Termination Date, from Chicago, Illinois to De Ronde Venen, The
Netherlands. The Corporation will pay the costs associated with
surface transportation, insurance, duties and taxes but excluding
any conversion costs necessary to bring the cars to European
standards. The Corporation will not provide any financial
assistance to the Executive for the disposition of his residence in
Chicago, Illinois.
8. Responsibility for Taxes
Arising on Income. Provided this Agreement is signed and not
revoked by the Executive as set forth in Paragraph 19 below, the
Corporation will continue to provide tax equalization services as
described below:
(a) The Executive will be provided
tax equalization benefits, as specified in the Letters of
Understanding, for compensation and benefits received from the
Corporation up to the Termination Date. The Letters of
Understanding outline a fixed 38% “hypothetical” tax
rate applicable to Corporation source income. Tax equalization
benefits outlined in the Letters of Understanding are governed by
the Corporation’s international assignment policy. After the
Termination Date, the Executive will not be eligible for tax
equalization on payments made to him, unless covered by the
exceptions noted in paragraph (b) below. The Corporation will
not tax equalize income derived from sources outside the
Corporation, including future employers of the Executive or
companies for which Executive serves on the board of directors. Any
tax equalization payments described in this paragraph shall be made
no later than the later of (i) the end of the
Executive’s second tax year beginning after the
Executive’s tax year in which his U.S. Federal income tax
return is required to be filed (including any extensions) for the
year to which the compensation subject to the tax equalization
payment relates or (ii) the Executive’s second tax year
beginning after the latest such tax year in which his foreign tax
return or payment is required to be filed or made for the year to
which the compensation subject to the tax equalization payment
relates.
(b) If
the Salary Continuation Payments, annual
bonus, Stock Options, Long-Term Incentive Awards and pension
payments which are paid after the Termination Date give rise to tax
in multiple jurisdictions due to the Executive’s duties
required by the Company during the Assignment Period and
through the Termination Date, the Company will tax equalize
these payments. If these payments give rise to tax in multiple
jurisdictions due to the Executive’s duties prior to the
Assignment Period, the company will not provide tax equalization
support for the non-assignment period. Other compensation earned up
to and including the Termination Date but paid after that date,
will be tax equalized in accordance with the Letters of
Understanding. Any tax equalization payments described in this
paragraph shall be made no later than the later of (i) the end
of the Executive’s second tax year beginning after the
Executive’s tax year in which his U.S. Federal income tax
return is required
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to be filed (including any
extensions) for the year to which the compensation subject to the
tax equalization payment relates or (ii) the Executive’s
second tax year beginning after the latest such tax year in which
his foreign tax return or payment is required to be filed or made
for the year to which the compensation subject to the tax
equalization payment relates.
(c) The 38% hypothetical tax rate
was developed based on the highest marginal U.S. federal and
Illinois tax rates in place at the time the Letter of Understanding
was finalized. To the extent that the highest marginal federal tax
rate increases from 35% and/or the Illinois state highest marginal
tax rate increases from 3% through December 31, 2011, the
hypothetical tax rate will be adjusted and increased
accordingly.
(d) The Corporation will provide tax
preparation support for the U.S. tax years 2009, 2010, and 2011.
U.S. tax preparation support for years thereafter will be provided
at the discretion of the Corporation. The Corporation will also
provide Dutch tax preparation support for tax years during the
Severance Period to the extent that income arising under paragraph
(b) above results in a requirement for a return to be filed.
The Corporation will not provide tax preparation support resulting
from income arising from other sources, including future employers
of the Executive or companies for which Executive serves on the
board of directors. Tax preparation support will be provided by the
Corporation’s preferred expatriate tax provider.
Notwithstanding the foregoing, to the extent this tax preparation
support is subject to Section 409A ( i.e. because it is
provided more than 2 1 / 2
months after the end of the
Corporation’s or the Executive’s taxable year
containing the Termination Date), then (i) such tax
preparation support shall be provided or paid on or before the last
day of the Executive’s taxable year following the applicable
taxable year; (ii) the expenses paid by the Corporation during
any taxable year of the Executive will not affect the expenses paid
by the Corporation in another taxable year; and (iii) the
right to such tax preparation services shall not be subject to
liquidation or exchange for another benefit.
(e) The Executive agrees that he
will timely file any tax returns required by law in the U.S. and
The Netherlands with respect to his compensation from the
Corporation, and will settle any tax payment obligations in a
timely manner.
9. Participation In Other
Plans . Except as otherwise provided herein or in the
applicable plan, the Executive’s participation in all other
plans available to Corporate Officers of the Corporation or
previously available to Executive (including but not limited to the
housing allowance and education assistance) shall cease on the
Termination Date.
10. Executive Benefits
.
(a) For 30 days following the
Termination Date, the Executive may continue to use the automobile
provided to the Executive by the Corporation, in accordance with
the terms of the Corporation’s Executive Car
Program. However, during that 30–day period:
(i) the Corporation will be responsible only for the
vehicle’s lease payments and the cost of automobile liability
insurance coverage; (ii) if the vehicle is damaged in an
accident or the Executive does not otherwise have access to the
vehicle during that 30-day period (e.g., due to theft), the
Corporation will neither provide a replacement car nor reimburse
the cost of a rental car; and (iii) the Executive shall be
responsible for all other operating expenses, including all fuel
and maintenance expenses, related to the automobile. The Executive
shall have the option to pu