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SEPARATION AGREEMENT

Termination Severance Agreement

SEPARATION AGREEMENT | Document Parties: SARA LEE CORP | Sara Lee Corporation You are currently viewing:
This Termination Severance Agreement involves

SARA LEE CORP | Sara Lee Corporation

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Title: SEPARATION AGREEMENT
Governing Law: Illinois     Date: 8/26/2009
Industry: Food Processing     Sector: Consumer/Non-Cyclical

SEPARATION AGREEMENT, Parties: sara lee corp , sara lee corporation
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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:

 

 

 

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.

 

 

 

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.

 

 

 

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.

 

 

 

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.

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


 
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