EXHIBIT 10.1
SEPARATION AGREEMENT
This
Separation Agreement (“ Agreement ”) is made and
entered into this 14th day of December, 2005 ( the “
Execution Date ”), by and between JOHN R. ALM
(the “ Executive ”) and COCA-COLA ENTERPRISES
INC. (with its affiliates, the “ Company
”).
WITNESSETH:
WHEREAS, the Executive has been employed as the President
and Chief Executive Officer of the Company and has served as a
member of the Company’s Board of Directors; and
WHEREAS, the Company and the Executive have mutually agreed
to terminate the employment relationship and desire to enter into
this Agreement to specify the terms and conditions of the
termination of the Executive’s employment.
NOW, THEREFORE, in consideration of the above premises and
mutual covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as
follows:
1.
DATE OF SEPARATION .
The Executive will cease to be an
employee of the Company effective on December 28, 2005 (the “
Effective Date ”).
2.
RESIGNATION FROM COMPANY POSITIONS .
As of the Effective Date, the
Executive shall tender his resignation as President and Chief
Executive Officer of the Company, as a member of the Board of
Directors of the Company, and as an officer and director of each of
the Company’s subsidiaries for which he serves. Also, as of
the Effective Date, the Executive shall resign as a trustee, plan
administrator and fiduciary for any Company sponsored plan, trust
or other arrangement in which he held such a position, as well as
from any and all Company positions to which the Executive was
elected or appointed, including any and all positions in which the
Executive was charged with fiduciary responsibility.
3.
SEVERANCE BENEFITS .
In addition to the compensation
and benefits to which the Executive is entitled and has earned
based upon his employment with the Company through the Effective
Date, the Executive shall receive the following as additional
consideration, which the Executive acknowledges is significant and
substantial:
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(a)
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DEFERRED COMPENSATION
ARRANGEMENT. Upon the
Effective Date, the Company shall credit $6,476,625 to the
Executive’s account under the Coca-Cola Enterprises
Supplemental Matched Employee Savings and Investment Plan (“
Supplemental MESIP ”). This amount shall be subject to
the terms and conditions of the Supplemental MESIP, including the
Executive’s elections with respect to the time and form of
distribution and investment measures, except that such amount may
become forfeitable under Section 9 of this Agreement.
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(b)
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WELFARE AND OTHER
BENEFITS. Unless
otherwise specified in this Section 3(b), upon the Effective Date,
the Executive shall cease to participate in the Company’s
employee benefit plans and programs.
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(i)
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Coca-Cola Enterprises Inc.
Retiree Medical Plan. Upon the Effective Date, the Executive shall be
eligible to participate in the Coca-Cola Enterprises Retiree
Medical Plan pursuant to and in accordance with the terms of such
plan.
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(ii)
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Pension Plans
. The Executive shall be eligible
for benefits under the retirement plan or plans in which the
Executive participated in accordance with the terms of such plans;
provided that the Executive shall receive two years credit to his
age at the time of commencement of his benefits. Further, the
Company shall accept the covenant not to compete in Section 5 below
in satisfaction of the noncompetition agreement requirement of the
Executive Pension Plan. The Executive acknowledges that breach of
such covenant not to compete would result in the forfeiture of his
accrued benefits under such plan pursuant to Section 9
hereof.
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(iii)
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Stock Options.
The Executive agrees to relinquish
any and all of his rights under the outstanding stock options
exercisable for 70,000 shares of the Company’s common stock
granted to him on January 4, 1999. The Executive’s stock
options granted on February 3, 2003 and February 26, 2004 shall, in
accordance with their terms, become fully vested and shall remain
exercisable until the earlier of their expiration dates or five (5)
years from the Effective Date. The Executive shall have no right to
receive additional stock options after the Effective
Date.
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(iv)
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Restricted Stock
. The Executive’s 209,000
shares of restricted stock, which were awarded on February 3, 2003
and February 26, 2004, shall become fully vested on the seventh day
following the Execution Date. The Executive shall have no right to
receive additional restricted stock after the Effective
Date.
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(v)
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Directors and Officers
Insurance . The Company
shall take all commercially reasonable steps to provide that the
Executive is covered under the Company’s directors and
officers liability insurance policy. Such coverage shall extend
until December 31, 2008 for all the Executive’s actions or
inactions occurring prior to the Effective Date.
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(vi)
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Reservation of
Rights . Notwithstanding
any other provision in this Agreement, the Company reserves the
unilateral right at any time to modify or terminate any benefit
plan or program under which the Executive participates or may
participate (so long as such modification or termination affects
the plans’ or programs’ participants or potential
participants generally and not just the Executive), and, in the
event of such action, the amount of the Executive’s benefits
thereunder shall be determined according to the terms of such plans
or programs as modified or terminated and not the terms of this
Agreement.
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(c)
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Each of the Executive and the
Company acknowledges and agrees that, pursuant to Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”), Notice 2005-1, and the proposed regulations
issued under Section 409A, no payment to be made to or in respect
of the Executive pursuant to this Section 3 is intended to be
subject to the additional tax and interest provided for in Section
409A(a)(1)(B) of the Code, and, therefore, no amounts shall be
withheld by the Company for any such payments for purposes of such
Section 409A.
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Furthermore,
the Executive acknowledges and agrees that he shall be fully
responsible for, and the Company shall not be responsible for, any
tax, additional tax, or interest under Section 409A(a)(1) of the
Code or any state and local taxes imposed or attempted to be
imposed on such amounts by any taxing authority.
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4.
TRANSITION SERVICES AND COOPERATION .
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(a)
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TRANSITION SERVICES
. The Executive agrees that, during
the six (6) month period immediately following the Effective Date,
he shall, upon the Company Chairman’s reasonable request,
provide advice and counsel to the Company on transition matters and
such other matters as the Company’s Chairman may determine to
be beneficial to the Company.
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(b)
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COOPERATION. The Executive agrees
to cooperate fully with the Company for a period of three (3) years
following the Effective Date, which includes assisting the Company
as requested by the Company’s Chairman on any matters
relating to the Company’s customers and suppliers with which
the Executive has had prior dealings or for which the
Company’s Chairman reasonably believes his involvement would
be of material assistance, and on any litigation, claim or suit
involving the Company as a party or witness and as to which the
Executive possesses knowledge or information which is relevant to
the litigation or in which the Chairman deems that the
Executive’s cooperation is needed to resolve or seek to
resolve the matter for which the Executive’s cooperation is
sought.
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(c)
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EXPENSE REIMBURSEMENT AND
SECRETARIAL SUPPORT . The
Company agrees to reimburse the Executive for all reasonable
“out-of-pocket” expenses related to provision of the
services referenced in Section 4(a) and Section 4(b) above,
provided the Executive receives approval of such expenses by the
Company’s Chairman and provides the Company with receipts and
invoices for all such expenses in accordance with the
Company’s general expense reimbursement policy. In addition,
the Company shall provide the Executive with such secretarial and
related administrative support as the Executive may reasonably deem
to be required to discharge his duties under this Section
4.
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5.
RESTRICTIVE COVENANTS .
For and in consideration of the
payment and benefits provided to the Executive under this
Agreement, the Executive agrees to the terms of the
following:
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(a)
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COVENANT NOT TO
COMPETE . The Executive
covenants and agrees that, during the period beginning on the
Effective Date and ending three (3) years thereafter, he will not
directly or indirectly, on his own behalf or on behalf of any
person or entity, compete with the Company by performing activities
or duties substantially similar or related to the functions,
activities or duties performed by the Executive for the Company as
of the Effective Date for any business entity engaged in direct
competition with the Company. A business entity shall be considered
to be “in direct competition” with the Company if it is
engaged in producing, manufacturing, distributing, marketing,
selling, servicing or repairing products similar to products
produced, manufactured, distributed, marketed, sold, serviced or
repaired by the Company, including (but not limited to) any type of
production and distribution of any beverages or beverage dispensing
equipment. This restriction shall apply only to a restricted
territory within a fifty mile radius of any locations, sites or
facilities in which the Company (including its affiliates)
maintains offices, operations or service contracts or has provided
services during the 12-month period immediately preceding the
Effective Date.
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(b)
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NONDISCLOSURE AND
CONFIDENTIALITY . The
Executive acknowledges and agrees that during the term of his
employment, he has had access to trade secrets and confidential
inf
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