Exhibit 10.21
SEPARATION AGREEMENT
This Agreement is made and entered into as of this 31st day of
December, 1996 by and between International Multifoods Corporation, a
Delaware corporation (the "Company"), and Duncan H. Cocroft ("Cocroft").
WHEREAS, Cocroft has resigned his position as Vice President -
Finance and Chief Financial Officer of the Company effective December
31, 1996;
WHEREAS, Cocroft has requested that the Company retain him as
an inactive employee until he reaches early retirement age on June 27,
1998; and
WHEREAS, the Company is willing to retain Cocroft as an
inactive employee under certain conditions and in exchange for certain
agreements, as provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein, the parties hereto
agree as follows:
1. Employment Status and Term. Cocroft will continue as
Vice President - Finance and Chief Financial Officer until December 31,
1996. Prior to such date he will confirm his resignation as Vice
President - Finance and Chief Financial Officer of the Company and as an
officer and director of all subsidiaries and affiliates of the Company
effective as of December 31, 1996 by submitting to the Company a written
resignation, in the form attached hereto as Exhibit A. Thereafter,
subject to the provisions of Section 13 of this Agreement, Cocroft will
continue as an inactive employee on a paid leave of absence until June
30, 1998, at which time Cocroft's employment with the Company will
terminate. For the period from January 1, 1997 through June 30, 1998,
Cocroft agrees to make himself available to advise and assist the
Company with respect to the business of the International Sales and
Marketing division of the Company and other matters related to the
business of the Company during regular business hours for reasonable
amounts of time pursuant to a schedule mutually agreed to by the Company
and Cocroft.
2. Salary and Vacation Pay. Until December 31, 1996,
Cocroft will receive his current base salary, less all applicable
withholding amounts. For the period from January 1, 1997 through June
30, 1998, the Company will pay Cocroft a salary in 36 semi-monthly
installments of $2,777.78 each, less all applicable withholding amounts,
for providing advice and assistance to the Company pursuant to Section 1
above. The Company will pay Cocroft in a lump sum, less all applicable
withholding amounts, the amount of any accrued and earned vacation days
not yet taken as of December 31, 1996. Such lump sum payment will be
made on or before January31, 1997. No additional vacation pay for
Cocroft will accrue after December 31, 1996.
3. Severance Payment. The Company will pay Cocroft a
severance payment in the amount of $255,000 in a lump sum, less all
applicable withholding amounts, on January 16, 1997, provided that
Cocroft has not rescinded the release agreement contained in Section 9
of this Agreement within the applicable rescission period and Cocroft
has not breached any of his obligations under this Agreement.
4. Expenses. The Company will reimburse Cocroft for his
reasonable travel expenses and other reasonable out-of-pocket expenses
he incurs during the period from January 1, 1997 through June 30, 1998
in providing advice and assistance to the Company pursuant to Section 1
above, provided that Cocroft shall obtain prior written approval of an
officer of the Company at the Vice President or higher officer level if
Cocroft's expenses on any single assignment are reasonably estimated to
exceed $1,000. Cocroft shall provide the Company with receipts and
other evidence reasonably requested by the Company to substantiate any
costs and expenses incurred by Cocroft in providing advice and
assistance to the Company pursuant to Section 1 above.
5. Employee Benefits for the Period from January 1, 1997
Through June30, 1998; Termination of Certain Arrangements and
Agreements. Except as otherwise provided herein, during the period from
January 1, 1997 through June 30, 1998, Cocroft will be eligible to
participate in and receive benefits under, in accordance with the
respective terms and conditions of, the Company's employee benefit plans
in which Cocroft is enrolled as of December 31, 1996 (other than, inter
alia, the Company's long-term disability plan, the Company's Management
Incentive Plan and any long-term incentive plan or program), which plans
are listed in Exhibit B hereto, unless Cocroft elects to discontinue
coverage or ceases to make the required contributions. The Company will
deduct contributions for such employee benefit plans from the periodic
salary payments described in Section 2 above. The Company has the right
to amend or terminate any such plans at any time and for any reason, and
the contribution amounts are subject to change by the Company.
Cocroft's coverage under the Company's long-term disability plan will
discontinue on December31, 1996. Cocroft's participation in the
Company's Management Incentive Plan and any long-term incentive plan or
program, or successor plan or program, will terminate on December 31,
1996 and no payments will be made thereunder. The Revised and Restated
Severance Agreement by and between the Company and Cocroft, dated as of
September17, 1993, shall terminate on December 31, 1996.
6. Employee Benefits After June30, 1998. After June 30,
1998, Cocroft will be eligible to participate in and receive benefits
under the Company's employee benefit plans available to similarly-
situated retirees of the Company in accordance with the provisions of
such plans and other applicable requirements. Such plans, and certain
estimates and assumptions relating thereto, are listed in Exhibit C
hereto. The Company has the right to amend or terminate any such plans
at any time and for any reason, and the contribution amounts are subject
to change by the Company.
7. Stock Options and Restricted Stock. In consideration
of the Company's agreements contained herein, including, without
limitation, the Company's agreement to pay salary and provide benefits
to Cocroft through June 30, 1998, Cocroft agrees that all options to
purchase shares of the Company's Common Stock, par value $.10 per share
("Common Stock"), and all shares of restricted Common Stock held by
Cocroft shall terminate, expire or be forfeited in accordance with the
terms of the respective plans and agreements relating to such stock
options and restricted stock (the "Stock Plans and Agreements") as if
Cocroft's employment had terminated on December31, 1996, which terms are
set forth in Exhibit D hereto.
8. Outplacement. The Company will pay directly to the
outplacement firm of Market Share Inc. or Personnel Decisions, Inc., or
a nationally-recognized outplacement firm located in Minneapolis,
Minnesota selected by Cocroft, an aggregate amount not to exceed $10,000
for outplacement services to be provided to Cocroft. Such amount will
be paid to such outplacement firm by January 15, 1997.
9. Release.
(a) In consideration of the severance payment to Cocroft
pursuant to Section 3 of this Agreement and the Company's agreements
contained herein, and for other good and valuable consideration, Cocroft
hereby releases and discharges the Company and its subsidiaries and
affiliates, and the directors, officers, employees, agents and insurers
of each (collectively, the "Released Parties"), from all causes of
action, claims, demands, debts, contracts and agreements to which
Cocroft or his heirs, executors, administrators, legal representatives,
successors or assigns and beneficiaries have or may have in connection
with Cocroft's employment with and termination of employment from the
Company, except for claims under: (i) this Agreement; (ii) the employee
benefit plans as provided in Sections 5 and 6 of this Agreement; (iii)
any stock option, as modified by this Agreement; and (iv) any
indemnification right to which Cocroft is entitled by reason of his
employment by the Company under (A) the Restated Certificate of
Incorporation, as amended, of the Company, (B) the Bylaws of the
Company, and/or (C) any policy of insurance issued to the Company under
which Cocroft is an insured and entitled to coverage (the foregoing
hereinafter called the "Release").
(b) Except as specifically provided in paragraph (a) of
this Section 9, the Release applies to any cause of action, claim,
demand, debt, contract and agreement that Cocroft has or may have as of
the date of this Agreement, including, without limitation, any and all
claims relating to Cocroft's employment with and termination of
employment from the Company, including, but not limited to, breach of
contract claims; claims alleging violation of the Fair Labor Standards
Act; the Age Discrimination In Employment Act, as amended; Title VII of
the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1866;
the National Labor Relations Act; the Americans With Disabilities Act;
the Employee Retirement Income Security Act; and/or any other federal,
state or local statute, law, ordinance, regulation, order or principle
of common law.
(c) Cocroft acknowledges and agrees that the Company's
agreement to make the severance payment pursuant to Section 3 hereof and
the Company's other agreements contained herein do not constitute an
admission that the Company or any of the other Released Parties has
engaged in any wrongful conduct towards Cocroft, has acted in any way to
cause injury to Cocroft, or is responsible or legally obligated to
Cocroft in any way, except as specifically provided in this Agreement.
(d) Cocroft acknowledges that he has been advised, and he
understands, that he has 15 days from the date that he signs this
Agreement to rescind this Agreement in its entirety, if he notifies the
Company, in writing, at Multifoods Tower, 33 South 6th Street, P.O. Box
2942, Minneapolis, Minnesota 55402, Attention: Frank W. Bonvino, Vice
President, General Counsel and Secretary of the Company, of his decision
to rescind this Agreement. Cocroft also understands that, if he
rescinds this Agreement, he shall forfeit the salary payments to be made
pursuant to Section 2 hereof and the severance payment payable pursuant
to Section 3 hereof and his employment shall terminate as of the date of
such rescission, at which time this Agreement shall become null and
void. Cocroft further acknowledges and understands that, to be
effective, his notice of rescission must be in writing and must be
delivered to the address stated above either by hand or by mail within
the 15-day period. If delivered by mail, the rescission must be:
(i)postmarked within the 15-day period; (ii)properly addressed to the
Company; and (iii)sent by certified mail, return receipt requested.
(e) Cocroft represents that he has read this Agreement and
understands all of the terms and conditions contained in this Agreement,
and that he has been encouraged by the Company to discuss this Agreement
with an attorney-at-law of his choice. Cocroft's manual signature on
this Agreement, set forth below on the signature line, constitutes
Cocroft's acknowledgment that he understands the effect of this
Agreement, and that he has signed this Agreement KNOWINGLY AND
VOLUNTARILY, and that he has not relied on any representations,
statements or explanations made by the Company or any of the Released
Parties or their attorneys.
NOTE
THE COMPANY HEREBY ADVISES COCROFT TO CONSULT WITH
AN ATTORNEY-AT-LAW OF COCROFT'S CHOICE BEFORE
COCROFT SIGNS AND DELIVERS THIS AGREEMENT.
10. The Company's Representation. The Company represents
to Cocroft that, as of the date of this Agreement, the Company has no
knowledge or any information which would cause the Company to assert a
claim against Cocroft in connection with Cocroft's employment to the
date of this Agreement.
11. Confidential Information.
(a) Cocroft covenants and agrees that during and after his
employment with the Company he will maintain in strict confidence and
not, directly or indirectly, use or disclose to any person, corporation,
partnership, entity or enterprise, any information, including, without
limitation, financial information, strategic and business plans,
customer lists or trade secrets of the Company or any of its
subsidiaries, or any other confidential or proprietary information of
the Company or any of its subsidiaries. For purposes of this Agreement,
confidential information shall not include any information: (i) which
was known to the public on the date of this Agreement; (ii) which
becomes known to the public following the date of this Agreement through
no fault of Cocroft; or (iii) which is disclosed to Cocroft by a third
party who has the right to disclose such information without violating
any agreement of confidentiality with the Company.
(b) In the event that Cocroft is compelled by subpoena,
civil investigative demand, court order or other legal process in any
proceeding to disclose any confidential information described in
paragraph (a) immediately above, Cocroft shall give the Company prompt
written notice so that the Company may seek an appropriate protective
order or other confidential treatment of such confidential information.
If the Company shall fail for any reason to obtain a protective order
and Cocroft shall be compelled to disclose any such confidential
information, based upon the advice of Cocroft's counsel, Cocroft may
disclose such information without liability under this Agreement,
provided that Cocroft shall give the Company written notice of the
information to be disclosed as far in advance of its disclosure as is
reasonably practicable and the name of the party to whom Cocroft is
required to disclose such information and, in any event, such disclosure
shall be limited to the specific information that Cocroft is legally
required to disclose based upon the advice of Cocroft's counsel.
(c) Cocroft acknowledges and agrees that money damages
would not be a sufficient remedy for any breach or threatened breach by
Cocroft of his covenant of confidentiality set forth in this Section 11
and that, in addition to all other remedies that the Company shall be
entitled to, the Company shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach or
threatened breach. Cocroft acknowledges and agrees that no failure or
delay by the Company in exercising any right under this Section 11 shall
operate as a waiver thereof, nor shall a single or partial exercise of
any such right preclude further or other exercise thereof.
12. Cocroft's Covenants of Non-Competition, Non-
Solicitation and Non-Disparagement.
(a) Cocroft covenants and agrees that he will not,
directly or indirectly: (i) during the period commencing on the date of
this Agreement and ending on June 30, 1998 (the "Restricted Period"),
become an owner of more than one percent of the stock of, take
employment with, become a director, officer or partner of, or become a
consultant or advisor to, any competitor of the Company in any line of
business (except Divested Businesses) in which the Company is engaged as
described in the Company's Annual Report on Form 10-K for the fiscal
year of the Company ended on February 29, 1996 filed with the Securities
and Exchange Commission; (ii) during the Restricted Period, employ or
attempt to employ any director, officer or employee of the Company or
any of its subsidiaries, or otherwise interfere with or disrupt any
employment relationship (contractual or otherwise) between the Company
and any director, officer or employee of the Company or any of its
subsidiaries; (iii) during the Restricted Period, solicit, request,
advise or induce any present or potential customer, supplier or other
business contact of the Company to cancel, curtail or otherwise change
its relationship with the Company or any of its subsidiaries; or (iv)
during the Restricted Period and at any time thereafter, publicly
criticize or disparage in any manner or by any means the Company or any
of its subsidiaries, its and their personnel, or any aspect of its and
their management policies, operations, products, services or practices.
(b) Cocroft acknowledges and agrees that money damages
would not be a sufficient remedy for any breach or threatened breach by
Cocroft of his covenants set forth in this Section 12 and that, in
addition to all other remedies that the Company shall be entitled to,
the Company shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach or threatened
breach. Cocroft acknowledges and agrees that no failure or delay by the
Company in exercising any right under this Section 12 shall operate as a
waiver thereof, nor shall a single or partial exercise of any such right
preclude further or other exercise thereof.
13. Termination of Employment and Agreement. The Company
may terminate Cocroft's employment, upon written notice to Cocroft, in
the event that Cocroft breaches any of his obligations under this
Agreement, at which time this Agreement shall become null and void.
14. No Waiver. The waiver by the Company or Cocroft of a
breach by the Company or Cocroft, as applicable, of any term of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach by the Company or Cocroft, as applicable.
15. Successors and Assigns. The rights and obligations of
Cocroft under this Agreement may not be assigned, transferred or
delegated, in whole or in part, by Cocroft. This Agreement is binding
upon the successors and assigns of the Company.
16. Entire Agreement. This Agreement, including the
Exhibits hereto, the employee benefit plans as provided in Sections 5
and 6 of this Agreement, and the Stock Plans and Agreements (to the
extent not modified by this Agreement) constitute the entire agreement
and understanding of the parties and supersedes all previous
communications, representations, understandings and agreements between
the parties, oral or written, with respect to the subject matter hereof.
17. Headings. The descriptive headings of the sections of
this Agreement are inserted for convenience only and do not constitute a
part of this Agreement.
18. Governing Law. This Agreement shall be governed by
and interpreted and construed in accordance with the laws of the State
of Minnesota, without giving effect to the conflicts of laws principles
thereof.
19. Severability. The provisions of this Agreement are
severable and if any provision of this Agreement is invalid or
unenforceable under any statute, regulation, order or other rule of law,
that provision shall be deemed to be modified or deleted, but only to
the extent necessary to comply with the statute, regulation, order or
rule and the remaining provisions of this Agreement shall remain in full
force and effect.
20. Counterparts. This Agreement may be executed in two
counterparts, each of which will be deemed an original, but which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date stated above.
INTERNATIONAL MULTIFOODS CORPORATION
By /s/ Robert F. Maddocks
Its Executive Vice President
/s/ Duncan H. Cocroft
Duncan H. Cocroft
Exhibit A
RESIGNATION
I, Duncan H. Cocroft, hereby resign, effective as of December
31, 1996, the office of Vice President - Finance and Chief Financial
Officer of International Multifoods Corporation, a Delaware corporation
("Multifoods"), and all offices and directorships that I hold in any
subsidiaries or affiliates of Multifoods.
Dated as of the 31st day of December, 1996.
/s/ Duncan H. Cocroft
Duncan H. Cocroft
Exhibit B
EMPLOYEE BENEFITS FOR THE PERIOD
JANUARY 1, 1997 THROUGH JUNE 30, 1998
I. Group Benefits
Subject to the terms and conditions of the Agreement, of which this
Exhibit B is a part, the group benefit plans listed below will remain in
effect unless you choose to discontinue coverage or cease to make the
required contributions. Contributions for group benefits will be
deducted from semi-monthly salary payments. The semi-monthly
contributions effective January 1, 1997 are as follows:
Semi-Monthly
Contribution
Indemnity medical, family coverage $33.50
Dental plan with orthodontia, family coverage $ 5.50
Vision care, family coverage $10.21
Life insurance coverage equal to $268,000* $12.73
Dependent life insurance $ 5.70
Health Care Flexible Spending Account $100.00
(based on 1996 election)
Note: Contribution amounts are subject to change by the Company.
*Based on salary equal to $2,777.78 per semi-monthly pay period.
II. Retirement Plans
Subject to the terms and conditions of the Agreement, of which this
Exhibit B is a part, you will continue as an active participant in the
Employees' Voluntary Investment and Savings Plan of International
Multifoods Corporation, the Multifoods Pension Equity Plan and the
Management Benefit Plan of International Multifoods Corporation until
June 30, 1998.
Exhibit C
EMPLOYEE BENEFITS AFTER JUNE 30, 1998
I. Group Benefits
Subject to the terms and conditions of the Agreement, of which this
Exhibit C is a part, effective July 1, 1998, you will be eligible to
enroll in retiree group insurance plans available to similarly-situated
employees under the plans that exist on that date. The plans currently
available are:
A. Life insurance
Under Minnesota Statute 61A.092, you could continue your then active
coverage amount for up to 18 months following your termination of
employment date. You could also continue dependent life insurance for
up to 18 months.
At the time your life insurance continuation period ceases (at the end
of the 18-month period or on the date you move from Minnesota, if
earlier), you could convert all or any portion of your group term life
insurance to an individual policy (except term insurance or a policy
which contains disability benefits).
B. Medical Insurance
Your participation in the Multifoods medical plan available to employees
would cease on June 30, 1998. However, you would have the option to
continue company-sponsored medical coverage under Multifoods Retiree
Medical Program. You and your eligible dependents could continue
coverage under an indemnity plan option and receive increased benefits
when services are received within a network of preferred providers. An
HMO option may also be available depending on where you reside at that
time.
C. Dental and Vision Plans
Your participation in the dental and vision plans would cease on June
30, 1998. However, under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"), you and your eligible dependents could continue
these plans for up to 18 months.
II. VISA Plan
Distribution may be made promptly following your termination of
employment date or deferred until not later than the April 1 following
the year in which you reach age 70-1/2. At your election, distribution
may be made in one lump sum or in a series of approximately-equal annual
installments over a period not exceeding 10 years.
III. Multifoods Pension Equity Plan and Management Benefit Plan
You will be eligible to receive monthly pension benefits commencing July
1, 1998 under one of the payment options shown below in the approximate
amounts noted:
Pension Equity Bonus Base Total
Payment Option Formula* Formula Pension
Life only $1,619 $3,911 $5,530
Life with 10 years certain $1,586 $3,832 $5,418
100% joint and survivor, $1,311 $3,168 $4,479
with benefits equal to the
amounts shown continuing to
your surviving spouse following
your death
50% joint and survivor, $1,434 $5,023 $6,457
with benefits equal to 50% of
the amounts shown to your surviving
spouse following your death
* Amounts which could not be paid from the Pension Equity Plan because
of Internal Revenue Code limits would be paid from the Management
Benefit Plan.
The above estimates were calculated assuming that salary equal to
$2,777.78 per semi-monthly pay period continues through 1997 and that
there are no future changes in plan design or increases in the Social
Security covered wage base.
Exhibit D
DUNCAN H. COCROFT
EXPIRATION DATES OF STOCK OPTIONS
Date of Number Exercise Expiration
Grant of Shares Price Plan Date
5/4/90 11,250 $18.875 1986 12/31/96
11/16/90 11,250 $22.75 1989 3/31/97
11/16/90 95,454 $22.75 1989 11/15/00
12/20/91 6,000 $25.6875 1989 12/31/96
12/11/92 6,500 $28.0625 1989 12/31/96
3/17/95 10,000 $18.6875 1986 12/31/96
The option to purchase 7,500 shares which was granted on March 15, 1996
will be forfeited as the vesting requirements will not be satisfied by
December 31, 1996.
FORFEITURE OF SHARES OF RESTRICTED STOCK
The shares of restricted stock listed below will be forfeited since the
shares will not be vested by December 31, 1996.
Date of Number Date of
Grant of Shares Forfeiture
3/18/93 10,000 12/31/96
3/18/94 675 12/31/96
3/17/95 675 12/31/96
3/15/96 525 12/31/96