PERSONAL LEAVE AGREEMENT
------------------------
THIS AGREEMENT is dated as of December 28, 2002, between TASTY BAKING
COMPANY, a Pennsylvania corporation (the "Company"), and XXXX X. XXXXX
("Executive").
W I T N E S S E T H
-------------------
WHEREAS, Executive has served as the Chairman of the Board of the Company
and, as such, has made a significant contribution to the Company's business; and
WHEREAS, Executive and the Company are currently obligated under a certain
Amended and Restated Employment Agreement dated as of August 19, 2002; and
WHEREAS, Executive and the Company are willing to enter into a personal
leave agreement upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and of the mutual benefits herein provided, and intending to be legally bound
hereby, the Company and Executive hereby agree as follows:
Section 1. Resignation from Current Duties. Executive hereby resigns as
Chairman of the Board and from the Board of Directors effective December 28,
2002, and Company accepts such resignations in each case, on the terms and
conditions herein contained. Executive will vacate his office promptly after
December 28, 2002.
Section 2. Term of Leave. Executive will be on personal leave from the
Company from December 29, 2002 until April 30, 2004 (the "Leave Period"). During
the Leave Period, Executive shall have no duties, responsibility or authority
with respect to the Company and shall perform no services for the Company;
provided, however, that Executive will: 1) review the Company's Form 10-K for
2002 and provide a cerification in accordance with the disclosure policies and
procedures implemented by the Company for the third quarter of 2002; and 2) make
himself reasonably available for up to 40 hours per annum, to the Company, its
attorneys and anyone else at the request of the Company, taking into account any
other business commitments Executive may have, without fee, compensation or
payment of expenses (except as provided in the immediately following sentence)
from the Company, in connection with any legal, regulatory, governmental or
investigatory matter, including litigation, pertaining to the Company, its
affiliates, directors, officers, employees or agents, at times and locations
determined by the Company. To the extent that the location is outside the
greater Philadelphia metropolitan area, the Company will reimburse Executive for
reasonable travel expenses. Executive will cooperate with the Company in such
matters consistent with his duty of loyalty to the Company. To the extent
Executive is asked to provide information in connection with such matters,
Executive shall provide complete, honest and accurate information to the best of
his ability.
Section 3. Compensation.
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(a) During the Leave Period, the Company shall pay Executive a base
salary at the annual rate of $700,000.00, less federal, state, and local taxes
and all other withholdings
required by law as well as deductions for Executive's co-pay for medical
benefits in the amounts required of senior executives generally. Except as
otherwise provided herein, such payments shall include and be deemed to satisfy
the Company's obligations for any and all accrued but unpaid vacation pay and
any other amount claimed by Executive to be owed him from the Company as of
December 28, 2002. Payments shall be made in accordance with the Company's
regular pay practice for senior executive employees as in effect from time to
time; provided, however, that the Company shall be relieved from making any
payment to Executive for any period during which he receives any unemployment
compensation benefits.
(b) Effective December 29, 2002, Executive shall not be entitled to any
compensation, bonus, vacation, leave time, benefits or anything else of value
from the Company except as expressly provided in this Agreement.
Section 4. Retirement. Except as expressly provided in Section 7(b) to the
contrary, Executive intends to retire and shall be deemed to have retired, for
all purposes on April 30, 2004 (the "Retirement Date"). Upon retirement,
Executive will be entitled to receive retiree medical and life insurance
benefits in accordance with then existing Company policy for senior executives,
if any.
Section 5. Additional Terms.
-----------------
(a) Executive will be entitled to retain the use of his current Company
car through the end of the term of the current lease for the vehicle (October
12, 2004), provided that Executive executes any and all documents necessary to
assume the lease for such vehicle and to relieve the Company from any
obligations under such lease. The Company agrees to reimburse Executive monthly
for the lease rental payments paid by Executive to the leasing company, namely
$836.45 per month, through the end of the term of the current lease. The Company
will help facilitate his negotiations with the leasing company. Otherwise,
Executive will return the car to the leasing company by no later than January
28, 2003. Executive will bear all costs of fuel, maintenance, repairs and
insurance (naming the Company as an additional insured) on the vehicle and will
be responsible for all costs associated with the operation of the vehicle.
(b) During the Leave Period, Executive will continue to participate, in
accordance with the terms thereof, in any present or future medical and life
insurance plan adopted by the Company for senior executives generally. For
purposes of this subsection (b), the Company agrees to treat Executive as an
employee through the Retirement Date.
(c) Executive will not receive any new or additional stock options or
stock based incentives after December 28, 2002. Existing stock options will
remain in place and expire in the normal course in accordance with their terms.
Unexercised options at the Retirement Date will expire if not exercised in
accordance with their terms, which is currently ninety (90) days thereafter. The
award of 50,000 shares of restricted stock made to Executive under the Company's
Restricted Stock Incentive Plan will be surrendered and is cancelled as of
December 28, 2002.
(d) The Company will reimburse Executive for all reasonable expenses
properly incurred by Executive through December 28, 2002 in the performance of
Executive's
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duties under the Amended and Restated Employment Agreement dated as of August
19, 2002, in accordance with the current policies established for senior
executives of the Company.
(e) The Company shall provide to Executive supplemental retirement
income benefits in accordance with the terms of the Amendment to Supplemental
Executive Retirement Plan Agreement attached hereto as Exhibit A effective on
the Retirement Date, provided Executive or his heirs or personal representatives
execute and deliver to the Company a release in the form attached hereto as
Exhibit B within 30 days of the Retirement Date. Nothing contained herein shall
be construed to infer that the Executive shall be entitled to receive under the
Company's Pension Plan credited service after December 28, 2002, nor that
"average monthly compensation" under such plan includes any compensation paid
under this Agreement. After the Retirement Date, Executive shall be entitled to
request any vested benefits under the Company's 401k (Thrift) plan and to
receive those benefits in the ordinary course, all in accordance with the
provisions of said plan.
(f) Notwithstanding anything in this Agreement that is or may be to the
contrary, nothing in this Agreement prevents or is intended to prevent the
Company from terminating, modifying, or changing any of its employee or
retirement benefit plans or policies for employees or retirees (including, but
not limited to, any medical insurance plan, life insurance policy or pension
plan), or any part of any of them at any time, or changing the amount of
employee or retiree contributions (or co-pay) for coverage under any such
policies or plans, at any time, including, but not limited to, Executive's
benefits or co-pay when changed for senior executives generally. Each of such
plans will be governed by its terms and to the extent there is any inconsistency
or ambiguity between any of said plans and this Agreement, the terms of the plan
shall control.
(g) Commencing May 1, 2004, and thereafter during the life of the
Executive, the Company shall pay Executive the sum of $2,083.33 per month for
personal secretarial services; provided, however, the Company's obligation
hereunder shall be limited to a maximum period of ten (10) years.
(h) The Company agrees to reimburse Executive for his reasonable legal
fees incurred in order to assist the Company in assuring that the Executive
understands the releases and the restrictive covenants contained herein and in
connection with the negotiation of this Agreement, including the restrictive
covenants, up to an amount not to exceed $5,000.00.
Section 6. Prior Agreements. All prior agreements between the parties,
including the Amended and Restated Employment Agreement dated as of August 19,
2002 are hereby terminated and declared null and void.
Section 7. Termination of this Agreement.
(a) This Agreement shall cease and terminate upon the earliest to occur
of the events specified below:
(i) April 30, 2004;
(ii) The death of Executive;
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(iii) Executive's election of early retirement prior to April 30,
2004; and
(iv) Termination of Executive's association with the Company for
Cause. For these purposes "Cause" for termination of Executive shall be limited
to actions by Executive involving a material breach of this Agreement by
Executive which, if capable of being cured, continues uncorrected for a period
of 20 business days after written notice of the acts constituting such alleged
breach is given to Executive.
(b) If Executive dies prior to April 30, 2004, notwithstanding
termination of this Agreement, the Company shall be obligated to continue to pay
Executive's salary to his Estate through April 30, 2004, and for purposes of
retirement benefits (i.e., Pension Plan, SERP and retiree medical insurance),
Executive shall be deemed to have elected to retire effective on (and the
Retirement Date shall be) the date immediately preceding his death.
(c) In the event that Executive becomes "disabled" within the meaning
of any disability insurance plan covering Executive, and Executive is awarded
payments thereunder, the payment of such benefits shall have no effect on the
Company's obligations to make the payments under Section 3(a) hereof.
(d) Notwithstanding anything in Section 7(a) to the contrary but
subject to the provisions of Section 15 hereof, except (i) for retirement
benefits under the Company's pension plan and any 401k (Thrift) plan, (ii) for
the SERP benefits to which Executive may be entitled under Section 5(e) of this
Agreement, (iii) for retiree medical and life insurance benefits to which
Executive may then be entitled, (iv) for the stipend for secretarial services
provided under Section 5(g) of this Agreement, (v) for the reimbursement of car
lease payments, if any, under Section 5(a) of this Agreement, (vi) for any
indemnification obligations to which Executive may become entitled from the
Company whether by contract or pursuant to the Company's articles of
incorporation or bylaws, (vii) for any rights under then outstanding stock
options, and (viii) as otherwise expressly provided herein, this Agreement and
all of the liabilities and obligations of the parties hereunder shall cease and
terminate effective upon the termination of this Agreement. The Company
covenants and agrees that its obligations under that certain Indemnification
Agreement dated as of August 24, 1992 between the Company and Executive shall
survive termination of this Agreement.
Section 8. Agreement is Voluntary. Executive acknowledges that he fully
understands the terms of this Agreement and that he enters into it voluntarily
without any coercion on the part of any person; that he was given adequate time
to consider all of its implications and freely and fully to consult with and
seek the advice of whomever he deemed appropriate; and that he has relied upon
no representation of any representative of Company in signing this Agreement.
Section 9. Release. In consideration of the promises in this Agreement,
Executive, for himself, and his agents, representatives, heirs, executors,
administrators, insurers, successors and assigns, and all persons, corporations
or other entities connected therewith which might claim by, through or under
them or any of them (all of whom are hereby individually and collectively
referred to in this paragraph as "Releasors"), do hereby release, remise and
forever
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discharge the Company, its respective direct and indirect subsidiaries,
affiliates, investors, insurers, successors, assigns, and each of their agents,
servants, shareholders, employees, officers, directors, trustees,
representatives and attorneys, and each of their heirs, successors, executors
and administrators (all of whom are hereinafter individually and collectively
referred to in this paragraph as "Releasees"), of and from any and all claims,
demands, causes of action, actions, rights, damages, judgments, costs,
compensation, suits, debts, dues, accounts, bonds, covenants, agreements,
expenses, attorneys' fees, damages, penalties, punitive damages and liability of
any nature whatsoever, in law or in equity or otherwise, which Releasors have
had, now have, shall or may have in the future, whether known or unknown,
foreseen or unforeseen, suspected or unsuspected, by reason of any cause, matter
or thing whatsoever, including those relating to Executive's employment with the
Company and the termination of that employment, except as expressly provided in
the immediately following sentence, to the date of this Agreement.
Notwithstanding anything contained in this Release to the contrary, Executive
does not release, remise or discharge the Company of or from any claims which he
may have under (i) the Company's qualified retirement plans or 401k plans; (ii)
that certain Supplemental Executive Retirement Program Agreement originally
dated June 10, 1987 between the Company and executive, as amended as provided in
Exhibit A hereto, and the rabbi trust with respect to such program; (iii) any
plans which the Company may have in effect from time-to-time, as they may be
modified from time-to-time, to provide medical and/or life insurance benefits to
retirees, all of said plans being governed by their plan documents and any
amendments thereto; (iv) the indemnification provisions contained in the
Company's Articles of Incorporation and/or Bylaws, and/or any indemnification
agreement in favor of Execuitve, relating to indemnification of officers and/or
directors; and (v) his rights under this Agreement.
By the execution of this Agreement, Executive acknowledges that he is
giving up all claims related to his employment with Company and the termination
of that employment, including but not limited to, claims for breach of contract
or implied contract, wrongful, retaliatory or constructive discharge,
negligence, misrepresentation, fraud, detrimental reliance, promissory estoppel,
defamation, invasion of privacy, impairment of economic opportunity, intentional
or negligent infliction of emotional distress, any and all other torts, and
claims for attorney's fees, as well as the statutory claims described below.
Executive further acknowledges that various state and federal laws
prohibit discrimination based on age, gender, race, color, and national origin,
religion, handicap or veterans status. These include Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ss. 2000e et seq. and the Civil Rights Act of 1991
(relating to gender, national origin, and certain other kinds of job
discrimination); the Age Discrimination in Employment Act, 29 U.S.C. 626 et
seq., (relating to age discrimination in employment), the Older Worker's Benefit
Protection Act, 29 U.S.C. ss. 626, the Rehabilitation Act of 1973, the Civil
Rights Act of 1866 and 1871, the Americans with Disabilities Act and the
Pennsylvania Human Relations Act. He also understands and acknowledges that
there are various federal and state laws governing wage and hour issues,
including but not limited to the Fair Labor Standards Act, Pennsylvania wage and
hour laws, and the Equal Pay Act of 1963 (relating to all the above forms of job
discrimination). He acknowledges that he is giving up any claims he may have
under any of these statutes and under any other federal, state or municipal
statute, ordinance, executive order or regulation relating to discrimination in
employment, wage and hour issues, or in any way pertaining to his employment
relationship with the Company. He understands and acknowledges that this release
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applies to all such employment-related claims that he now has or may have to the
date of this Agreement.
Releasor agrees that he will not, at any time hereafter, nor will he
permit, at any time hereafter, any person acting under his direction or control
to, initiate, maintain, or prosecute, or in any way knowingly aid, directly or
indirectly, in the initiation, maintenance, or prosecution of, any claim, demand
suit, accounting, or cause of action against the Releasees, or any of them,
arising out of, or in any way connected with any matter, thing, transaction,
occurrence, act or omission with respect to which a release is provided
hereunder.
Nothing herein is intended to foreclose Executive from filing a charge
with the Equal Employment Opportunity Commission. In the event such a charge is
filed, Executive shall be precluded from recovering any monetary relief or
obtaining any other personal recovery.
If Executive, his heirs or personal representatives, or any person or
entity acting on their behalf, takes, pursues or supports any action to
determine that this Release, or any part hereof, or any other release contained
in this Agreement is invalid and if this Release, or any part hereof, or any
other release contained in this Agreement is determined to be invalid for any
reason, then all obligations of the Company under this Agreement shall cease.
Executive may not sign this Agreement before 5:00 P.M. on December 28,
2002, and his signing of it prior to that time will be without any legal effect.
Section 10. Age Discrimination Release. Executive fully and
unconditionally releases Releasees from any and all claims which he has or may
have against Releasees or any of them up to and including the date of this
Agreement under the Age Discrimination in Employment Act of 1967, as amended
("ADEA"), or any other statute prohibiting discrimination based upon age.
Section 11. Compliance with Older Worker's Benefit Protection Act. This
Agreement is intended to comply with Section 201 of the Older Worker's Benefit
Protection Act of 1990. Accordingly, Executive acknowledges and represents that
he: (a) waives his claims under the ADEA knowingly and voluntarily in exchange
for consideration of value to which he would not otherwise have been entitled;
(b) has been advised by the Company to consult an attorney before signing this
Agreement; (c) has been given a period of at least 21 days within which to
consider this Agreement; and (d) has been informed by the Company and
understands that he may revoke this Agreement for a period of 7 days after
signing it (the "Revocation Period"), and that this Agreement shall not become
effective or enforceable until the Revocation Period has expired. He understands
that any revocation he makes shall be in writing, sent by facsimile, hand
delivery or overnight mail, to Company in accordance with Section 17 of this
Agreement. In the event that his acceptance of this Release is revoked, then
Executive shall immediately return to the Company any payments made to him under
this Agreement.
Section 12. Loyalty/Non-Competition. Executive shall remain loyal to the
Company and during the term of this Agreement and for a period of one year after
termination of this Agreement, Executive will not: (a) without the prior written
permission of the Company, engage, directly or indirectly, in any business
relationship, whether as an employee, partner, consultant, advisor, independent
contractor or otherwise, in competition with the Company within 100 miles
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of any geographical location in which the Company does business; or (b) solicit
any business in competition with the Company from any customer, prospective
customer or supplier of the Company on behalf of himself or others; or (c)
communicate in any way with competitors or potential suitors of the Company
other than on a social basis. During the term of this Agreement, Executive
agrees to refer to the Company all inquiries he receives regarding the Company
or this Agreement. Should Executive violate this Section 12, the Company shall
be entitled to an immediate injunction restraining Executive from violating the
provisions hereof and he further agrees that an action for damages does not
provide an adequate remedy for his violation of this Section 12, in addition to
any other remedies available under this Agreement, under the law or in equity.
For purposes of this Agreement and the second clause of ARTICLE II(a) of that
certain Supplemental Executive Retirement Plan Agreement between the Company and
Executive dated as of July 6, 1987, as amended ("SERP"), "competition" means a
business involved in the manufacture or marketing of snack cake or other
bakery-type sweet products. If any part of this Section 12 or the application
thereof, is construed to be invalid or uneforceable, then the other parts of
this Section 12 or the application thereof shall not be affected and shall be
given full force and effect without regard to the invalid or uneforceable
portions. If any covenant or agreement in this Section 12 is held to be
unenforceable because of the area covered, the duration thereof, or the scope
thereof, then the court making such determination shall have the power to reduce
the area and/or duration and/or limit the scope thereof, and the covenant or
agreement shall then be enforceable in its reduced form.
Section 13. Return of All Company Property. Executive shall deliver to
Company all keys, credit cards, computers, correspondence, software, drawings,
cell phones, blueprints, manuals, letters, notes, notebooks, reports,
flowcharts, programs, software, proposals, and any documents concerning
Company's customers, or concerning products or processes used by Company and any
other property of Company, by December 28, 2002.
Section 14. Confidential Information. Executive agrees to hold in a
fiduciary capacity for the benefit of the Company all of the Company's business
secrets and confidential information, knowledge and data relating to the Company
or any of its affiliated companies and their respective businesses, which have
been obtained by the Executive during his employment by the Company or any of
its affiliated companies, including without limitation, information relating to
such matters as finances, operations, processes, product recipes, new products
in development, sales methods, equipment, techniques, plans, formulae, products,
methods and know-how, customer requirements and names of suppliers. The
obligations under this Section 14 shall survive the termination of this
Agreement and any termination of Executive's association with the Company or any
of its affiliates. Executive's obligations under this Section 14 and under the
first clause of ARTICLE II(a) of the SERP, shall not be deemed violated in the
event that (i) Executive discloses any such information pursuant to an order of
a court of competent jurisdiction or any administrative, quasi-judicial or other
body having subpoena power, provided Executive has notified the Company of such
potential legal order and provided the Company with the opportunity to challenge
or limit the scope of the disclosure, or (ii) such information becomes generally
available from a source other than the Company, any of its affiliates, or any of
their employees when such source is legally entitled, to the best of Executive's
knowledge, to make such information available. Executive agrees that in the
event of breach of any of his obligations under this Section 14, Company shall
be entitled to an injunction restraining Executive from violating the provisions
hereof and he further agrees that
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an action for damages does not provide an adequate remedy for his violation of
this Section 14, in addition to any other remedies available under this
Agreement, under the law or in equity.
Section 15. If Executive Breaches this Agreement. In the event Executive
breaches in any material fashion any term of this Agreement such that the
Company is entitled to terminate this Agreement for "Cause" under Section
7(a)(iv) hereof after the notice and cure period provided therein, Executive
shall lose entitlement to any payments due under this Agreement, and Executive
shall immediately owe Company the full amount of all amounts paid to him or on
his behalf under this Agreement in addition to any other damages and remedies,
in law or in equity, that may be available to Company; provided however, in no
event shall Executive be obligated to repay, or shall the Company be entitled to
receive, any amounts which Executive has received or may thereafter receive for
the benefits described in clauses (i), (vi) and (vii) of Section 7(d) hereof.
Executive's promises under this Agreement, however, shall remain in effect.
Section 16. Mediation/Arbitration. Except as provided in Sections 12 and
14 above, the parties shall attempt to resolve any dispute through mediation
conducted in Philadelphia, Pennsylvania. If the parties do not promptly agree on
a neutral mediator, then any of the parties may notify J.A.M.S./Endispute, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, to initiate selection of a mediator from the
J.A.M.S/Endispute Panel of Neutrals. The Company shall pay the fees and expenses
of the mediator. If the mediator is unable to facilitate a settlement of the
dispute within a reasonable period of time, as determined by the mediator, the
mediator shall issue a written statement to the parties to that effect and the
aggrieved party(ies) may then seek relief through arbitration, which shall be
binding, before a single arbitrator pursuant to the Commercial Arbitration Rules
("Rules") of the American Arbitration Association (the "Association"). The place
of arbitration shall be Philadelphia, Pennsylvania. Arbitration may be commenced
at any time by any party seeking arbitration by written notice to the other
party(ies) by first class mail, postage prepaid. The arbitrator shall be
selected by the joint agreement of the parties, but if the parties do not so
agree within thirty (30) business days after the date of the notice referred to
above, the selection shall be made pursuant to the Rules from the panels of
arbitrators maintained by such Association, and such arbitrator shall be
neutral, impartial, independent of the parties and others having any known
interest in the outcome, shall abide by the ABA and AAA Code of Ethics for
neutral arbitrators and shall have no ex parte communications about the dispute
with either party. The arbitrator shall be required to follow applicable law and
render a written decision within one hundred eighty (180) days of appointment.
Any award rendered by the arbitrator shall be final, conclusive and binding upon
the parties hereto and there shall be no right of appeal therefrom. Any court
having jurisdiction thereof may enter judgment upon the award rendered by the
arbitrator. The parties shall pay the costs and expenses of arbitration as the
arbitrator may assess. Each party shall pay his or its own legal fees and costs.
The arbitrator shall not be permitted to award punitive or similar type damages
under any circumstances. The procedures set forth in this Section 16 shall
constitute the sole and exclusive procedures for the resolution of any dispute
under this Agreement, except for any dispute related to an alleged violation of
Sections 12 and 14 hereof, in which case Company, without prejudice to or
compliance with the procedures set forth in this Section 16, is expressly
permitted to institute legal proceedings to obtain a temporary restraining
order, a preliminary and permanent injunction or other applicable relief.
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Section 17. Notices. All notices, requests, demands and other
communications hereunder must be in writing and shall be deemed to have been
given if delivered by hand or mailed by first class, registered mail, return
receipt requested, postage and registry fees prepaid, and addressed as follows:
(a) If to the Company, to: Tasty Baking Company
0000 Xxxxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Secretary
(b) If to the Executive, to: Xxxx X. Xxxxx
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Addresses may be changed by notice in writing signed by the addressee.
Section 18. Miscellaneous. This Agreement is the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings, oral or written, relating to the subject matter hereof, and no
change, alteration or modification hereof may be made except in writing signed
by both parties hereto. The headings in this Agreement are for convenience of
reference only and shall not be considered as part of this Agreement nor limit
or otherwise affect the meaning hereof. The parties agree that the principle
that an agreement shall be construed against the drafter shall not apply to this
Agreement. This Agreement shall in all respects be governed by and construed and
enforced in accordance with the substantive laws of the Commonwealth of
Pennsylvania, without regard to conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
ATTEST: TASTY BAKING COMPANY
By:
------------------------------ -----------------------------------
Xxxxxxx X. Xxxxx,
President and CEO
WITNESS:
------------------------------ ------------------------------------------
Xxxx X. Xxxxx
STATE OF :
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COUNTY OF :
On this, the ______ day of _________________, 200__, before me, the
undersigned officer, personally appeared XXXX X. XXXXX known to me
(satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________________
Notary Public
My Commission Expires:
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EXHIBIT A
---------
AMENDMENT TO SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN AGREEMENT
BETWEEN
TASTY BAKING COMPANY
AND
XXXX X. XXXXX
THIS AGREEMENT, entered into as of this 28th day of December, 2002, by
and between Tasty Baking Company (hereinafter referred to as the "Employer") and
Xxxx X. Xxxxx (hereinafter referred to as the "Employee").
W I T N E S S E T H:
-------------------
WHEREAS, the Employer and the Employee entered into a Supplemental
Executive Retirement Plan Agreement ("SERP Agreement") as of July 6, 1987; and
WHEREAS, the SERP Agreement was modified by the Board of Directors on
April 22, 1988; and
WHEREAS, the Employer and the Employee have entered into a agreement
whereby the Employee will be on "personal leave" status from December 28, 2002
through April 30, 2004 ("Personal Leave Agreement); and
WHEREAS, the Employer and the Employee desire to amend the SERP Agreement
(as modified on April 22, 1988) to clarify that for purposes of benefits under
the SERP Agreement, Employee's service will be deemed to have continued with the
Employer through April 30, 2004 or until his death, whichever is earlier, and
that the compensation that the Employee receives from the Employer during his
personal leave under Section 3 of the Personal Leave Agreement shall be counted
as compensation for purposes of benefits under the SERP Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
amend the SERP Agreement, as modified on April 22, 1988, as follows:
1. Notwithstanding anything contained in the SERP Agreement to the
contrary, Employee shall be deemed to be a full-time employee of Employer, for
purposes of Article 1, Section 1 of the SERP Agreement, during the period that
Employee is on "personal leave" status from December 28, 2002 through April 30,
2004 or until his death, whichever is earlier.
2. Paragraph 3 shall be added to Article VIII of the SERP Agreement,
effective as of December 28, 2002 to read as follows:
"3. Personal Leave Status. Notwithstanding anything
in this Agreement to the contrary, during the period
that the Employee is on "personal leave" status from
December 28, 2002 through April 30, 2004 or until his
death, whichever is earlier, (a) the Employee shall
be deemed to have continued service with the Employer
for purposes of benefits under this
Agreement and (b) the base compensation paid by the
Employer to the Employee during such period of time
shall be counted as compensation for purposes of
benefits under this Agreement. For purposes of
entitlement to benefits under the Agreement, the
Employee will be deemed to have retired from the
Employer on April 30, 2004, unless Employee dies
prior to such date. If the Employee dies prior to
April 30, 2004, his surviving spouse shall be
entitled to receive a monthly amount until her death,
commencing on the same day as his surviving spouse
would have begun receiving benefits under the
Employer's Pension Plan had Employee retired on the
day before his death, equal to 100% of the amount
that the Employee would have been eligible to receive
under paragraph 1 of Article I, above, had he retired
on the day before his death and elected an immediate
100% joint and survivor annuity under the Employer's
Pension Plan."
3. This Amendment shall become effective only upon the timely execution
and delivery and effectiveness of the release required under Section 5(e) of the
Personal Leave Agreement.
4. In all other respects, the SERP Agreement, as amended April 22, 1988,
is hereby ratified, approved and confirmed.
The parties hereto have set their hands and seals the day and year first
above written.
ATTEST: TASTY BAKING COMPANY
By:
------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxx,
President and CEO
WITNESS:
------------------------------- -----------------------------------------------
Xxxx X. Xxxxx
-ii-
EXHIBIT B
---------
RELEASE
KNOW ALL MEN BY THESE PRESENTS that XXXX X. XXXXX, for himself, and his
agents, representatives, heirs, executors, administrators, insurers, successors
and assigns, and all persons, corporations or other entities connected therewith
which might claim by, through or under them or any of them (all of whom are
hereby individually and collectively referred to in this paragraph as
"Releasors"), do hereby release, remise and forever discharge TASTY BAKING
COMPANY, its respective direct and indirect subsidiaries, affiliates, investors,
insurers, successors, assigns, and each of their agents, servants, shareholders,
employees, officers, directors, trustees, representatives and attorneys, and
each of their heirs, successors, executors and administrators (all of whom are
hereinafter individually and collectively referred to in this paragraph as
"Releasees"), of and from any and all claims, demands, causes of action,
actions, rights, damages, judgments, costs, compensation, suits, debts, dues,
accounts, bonds, covenants, agreements, expenses, attorneys' fees, damages,
penalties, punitive damages and liability of any nature whatsoever, in law or in
equity or otherwise, which Releasors have had, now have, shall or may have in
the future, whether known or unknown, foreseen or unforeseen, suspected or
unsuspected, by reason of any cause, matter or thing whatsoever, including those
relating to Xx. Xxxxx' employment with Tasty Baking Company ("Company") and the
termination of that employment, except as expressly provided in the immediately
following sentence to the date of this Release. Notwithstanding anything
contained in this Release to the contrary, Xxxx X. Xxxxx does not release,
remise or discharge the Releasees of or from any claims which he may have under
(i) the Company's qualified retirement plans or 401k plans; (ii) that certain
Supplemental Executive Retirement Program Agreement originally dated June 10,
1987 between the Company and Xx. Xxxxx, as amended, and the rabbi trust with
respect to such program; (iii) any plans which the Company may have in effect
from time-to-time, as they may be modified from time-to-time, to provide medical
and/or life insurance benefits to retirees, and all of said plans being governed
by their plan documents and any amendments thereto; and, (iv) the
indemnification provisions contained in the Company's Articles of Incorporation
and/or Bylaws, and/or any indemnification agreement in favor of Xx. Xxxxx,
relating to indemnification of officers and/or directors.
This paragraph and its subparagraphs are intended to comply with Section
201 of the Older Worker's Benefits Act of 1990, as amended.
(i) By the execution of this Release, Xxxx X. Xxxxx acknowledges that he
is giving up all claims related to his employment with Company and the
termination of that employment, including but not limited to, claims for breach
of contract or implied contract, wrongful, retaliatory or constructive
discharge, negligence, misrepresentation, fraud, detrimental reliance,
promissory estoppel, defamation, invasion of privacy, impairment of economic
opportunity, intentional or negligent infliction of emotional distress, any and
all other torts, and claims for attorney's fees, as well as the statutory claims
described below.
(ii) Xxxx X. Xxxxx further acknowledges that various state and federal
laws prohibit discrimination based on age, gender, race, color, and national
origin, religion, handicap or veterans status. These include Title VII of the
Civil Rights Act of 1964, 42 U.S.C. ss. 2000e et seq. and the Civil Rights Act
of 1991 (relating to gender, national origin, and certain other kinds of job
discrimination); the Age Discrimination in Employment Act, 29 U.S.C. 626 et
seq., (relating to age discrimination in employment), the Older Worker's Benefit
Protection Act, 29 U.S.C. ss. 626, the Rehabilitation Act of 1973, the Civil
Rights Act of 1866 and 1871, the Americans with Disabilities Act and the
Pennsylvania Human Relations Act. He also understands and acknowledges that
there are various federal and state laws governing wage and hour issues,
including but not limited to the Fair Labor Standards Act, Pennsylvania wage and
hour laws, and the Equal Pay Act of 1963 (relating to all the above forms of job
discrimination). He acknowledges that he is giving up any claims he may have
under any of these statutes and under any other federal, state or municipal
statute, ordinance, executive order or regulation relating to discrimination in
employment, wage and hour
issues, or in any way pertaining to his employment relationship with Company. He
understands and acknowledges that this release applies to all such
employment-related claims that he now has or may have to the date of this
Agreement.
(iii) Xxxx X. Xxxxx hereby certifies that Company has advised him that he
has at least twenty-one (21) days (a) to consider and review this Release and
its consequences with an attorney of his choosing, and (b) if he accepts the
terms of this Release, to forward an executed copy of this Release to Company in
accordance with Section 17 of that certain Personal Leave Agreement dated as of
December __, 2002.
(iv) Xxxx X. Xxxxx also acknowledges and understands that he has seven (7)
days from the execution of this Release to advise Company that he is revoking
this Release, and understand that if he has not revoked this Release by the end
of the seven-day period, this Release will be effective and in full force. He
understands that any revocation he makes shall be in writing, sent by facsimile,
hand delivery or overnight mail, to Company in accordance with Section 7 of his
Employment Agreement.
Releasor agrees that he will not, at any time hereafter, nor will he
permit, at any time hereafter, any person acting under his direction or control
to, initiate, maintain, or prosecute, or in any way knowingly aid, directly or
indirectly, in the initiation, maintenance, or prosecution of, any claim, demand
suit, accounting, or cause of action against the Releasees, or any of them,
arising out of, or in any way connected with any matter, thing, transaction,
occurrence, act or omission with respect to which a release is being provided
hereunder.
Nothing herein is intended to foreclose Xx. Xxxxx' from filing a charge
with the Equal Employment Opportunity Commission. In the event such a charge is
filed, Xx. Xxxxx shall be precluded from recovering any monetary relief or
obtaining any other personal recovery.
If Xxxx X. Xxxxx, his heirs or personal representatives, or any person or
entity acting on their behalf, takes, pursues or supports any action to
determine that this Release, or any part hereof, or any other release contained
in this Agreement is invalid and if this Release, or any part hereof, or any
other release contained in this Release is determined to be invalid for any
reason, then any obligations the Company may have to Xx. Xxxxx pursuant to the
Amendment to Supplemental Executive Retirement Plan Agreement Between Tasty
Baking Company and Xxxx X. Xxxxx shall cease.
IN WITNESS WHEREOF, and intending to be legally bound, the Releasor hereto
has executed and delivered this Release as of the _____ day of
___________________, 200_.
_______________________________
Xxxx X. Xxxxx
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STATE OF :
COUNTY OF :
On this, the ______ day of _________________, 200__, before me, the
undersigned officer, personally appeared XXXX X. XXXXX known to me
(satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_____________________________________
Notary Public
My Commission Expires:
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