EXHIBIT 10.7
EMPLOYMENT AND CONSULTING AGREEMENT
THIS EMPLOYMENT AND CONSULTING AGREEMENT ("Agreement") is entered into by
and between Xx. Xxxxxx X. Xxxxxxx ("Xxxxxxx"), a resident of Houston, Texas, and
Xxxxxxx'x Food Markets, Inc. ("Xxxxxxx'x"), a Texas corporation, having its
principal place of business in Houston, Texas.
WITNESSETH:
WHEREAS, Xxxxxxx is presently an employee and officer of Xxxxxxx'x and, at
various times, has been an employee, officer, and director of Xxxxxxx'x, certain
of its affiliated and subsidiary companies, and/or their predecessors or
successors in interest (collectively, with Xxxxxxx'x, the "Xxxxxxx'x Entities"
or, individually, a "Xxxxxxx'x Entity"); and
WHEREAS, Xxxxxxx'x anticipates a reorganization and transition among its
executive officers and desires to retain Xxxxxxx in the employ of Xxxxxxx'x for
such time as is necessary to assure that Xxxxxxx'x is prepared for this
reorganization and transition and desires to secure the consulting services of
Xxxxxxx for a period after the transition so that Xxxxxxx'x experience and
knowledge will be available to Xxxxxxx'x; and
WHEREAS, Xxxxxxx'x and Xxxxxxx desire to continue Xxxxxxx'x employment on
a temporary basis and to establish a consulting relationship on such terms and
conditions, and for the consideration, hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Xxxxxxx and
Xxxxxxx'x hereby agree as follows:
ARTICLE 1: EMPLOYMENT, CONSULTING ENGAGEMENT, DUTIES AND COMPENSATION
1.1 Employment Engagement. Xxxxxxx'x agrees to continue to employ Xxxxxxx
and Xxxxxxx agrees to continue to be employed by Xxxxxxx'x in accordance with
and subject to the terms of this Agreement.
1.2 Service and Duties. Xxxxxxx and Xxxxxxx'x agree that during the period
commencing on the Effective Date (as such term is defined in Section 7.1), and
ending on the effective date of Xxxxxxx'x termination of employment pursuant to
Section 3.1, Xxxxxxx'x shall employ Xxxxxxx as the Executive Vice President and
Chief Administrative Officer of Xxxxxxx'x, or in such other executive positions
as the parties mutually may agree. Xxxxxxx agrees to serve in such position(s)
and to perform diligently and to the best of his abilities the duties and
services appertaining to such office, as well as additional duties and services
appropriate to such office which the parties mutually may agree upon from time
to time. Xxxxxxx'x employment shall also be subject to the policies maintained
and established by Xxxxxxx'x, as the same may be amended from time to time.
1.3 Other Interests. Xxxxxxx agrees, during the period of his employment
hereunder, to devote his primary business time, energy, and best efforts to the
business and affairs of the Xxxxxxx'x Entities and not to engage, directly or
indirectly, in any other business, investment, or activity that interferes with
Xxxxxxx'x performance of his duties hereunder, is contrary to the interests of
any Xxxxxxx'x Entity, or requires any significant portion of Xxxxxxx'x business
time.
1.4 Duty of Loyalty. Xxxxxxx acknowledges and agrees that during his
employment with Xxxxxxx'x he owes a fiduciary duty of loyalty, fidelity, and
allegiance to act at all times in the best interests of Xxxxxxx'x and to do no
act which would injure the business, interests, or reputation of any Xxxxxxx'x
Entity. In keeping with those duties, Xxxxxxx shall make full disclosure to
Xxxxxxx'x of all business opportunities pertaining to Xxxxxxx'x business and
shall not appropriate for Xxxxxxx'x own benefit business opportunities
concerning the subject matter of the fiduciary relationship.
1.5 Location and Conditions of Employment. During Xxxxxxx'x employment
pursuant to Section 1.1, Xxxxxxx'x may not, without Xxxxxxx'x consent (which
consent shall not be unreasonably withheld), require Xxxxxxx'x principal place
of business to be anywhere other than within 20 miles of Xxxxxxx'x job location
on the day immediately preceding the Effective Date.
ARTICLE 2: COMPENSATION, PERQUISITES, BENEFITS, INSURANCE AND INDEMNITIES
2.1 Base Salary. During the term of his employment, Xxxxxxx shall receive
a base salary equivalent to $16,667 per month, or such greater amount as the
parties mutually may agree upon from time to time. Xxxxxxx'x base salary shall
be paid in equal installments in accordance with Xxxxxxx'x standard policy
regarding payment of compensation to executives but no less frequently than
monthly.
2.2 Perquisites. Subject to the approval of Xxxxxxx'x Chief Executive
Officer in his sole discretion, while Xxxxxxx is actively employed under this
Agreement, he shall be entitled to participate in those perquisites which are
extended to similarly situated executives of Xxxxxxx'x. In addition, and not by
way of limitation, and subject to the approval of Xxxxxxx'x Chief Executive
Officer in his sole discretion, Xxxxxxx shall be afforded the following
perquisites and benefits as incidences of his employment:
(i) Business and Entertainment Expenses - Xxxxxxx'x shall reimburse
Xxxxxxx for, or pay on behalf of Xxxxxxx, reasonable and appropriate
expenses incurred by Xxxxxxx for business related purposes.
(ii) Other Xxxxxxx'x Benefits - While employed by Randall's,
Barclay, and to the extent applicable, Xxxxxxx'x family, dependents, and
beneficiaries, shall be allowed to participate in all benefits, plans, and
programs, including improvements or modifications of the same, which are
now, or may hereafter be, available to similarly-situated Xxxxxxx'x
executives. Such benefits, plans, and programs may include, without
limitation, any profit sharing plan, employee stock ownership plan, thrift
plan, pension plan, health insurance or health care plan, disability
insurance,
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and the like. Xxxxxxx'x shall not however, by reason of this Section
2.2(ii), be obligated to institute, maintain, or refrain from changing,
amending, or discontinuing, any benefit plan or program, so long as such
changes are similarly applicable to executives generally.
2.3 Increases in Compensation, Perquisites, and Benefits. Nothing in this
Agreement shall limit Xxxxxxx'x, in its sole discretion, from increasing at any
time Xxxxxxx'x compensation, benefits, and perquisites above and beyond the
minimums or levels established herein.
2.4 Liability Insurance. Xxxxxxx'x agrees to maintain on behalf of
Xxxxxxx, on a basis no less favorable to Xxxxxxx than as provided by Xxxxxxx'x
on behalf of Xxxxxxx on the day prior to the Effective Date, all insurance
coverages respecting any liability or potential liability which Xxxxxxx may
incur in the future or may have incurred in the past in the scope of his
employment, in the scope of his consulting engagement, in his status as a
fiduciary, or as an officer or director of any Xxxxxxx'x Entity. Such coverages
shall be maintained during Xxxxxxx'x active employment and during his consulting
engagement hereunder and at least for such "trailing periods" as are provided by
such coverages on the day prior to the Effective Date. Notwithstanding the
foregoing, in no event shall this Section 2.4 be construed to obligate Xxxxxxx'x
to reimburse Xxxxxxx for any insurance premiums paid by Xxxxxxx for his personal
umbrella insurance or any other insurance premiums. Further, notwithstanding any
other provision in this Agreement to the contrary, this Section 2.4 shall
survive the termination of Xxxxxxx'x employment and Xxxxxxx'x death.
2.5 Indemnities. Xxxxxxx'x agrees to maintain on behalf of Xxxxxxx, on a
basis no less favorable to Xxxxxxx than as provided by Xxxxxxx'x on behalf of
Xxxxxxx on the day prior to the Effective Date, all contractual provisions
(whether embodied in articles of incorporation, bylaws, board resolutions,
agreements, or otherwise) which in any way limit the liability of, or provide
advances or protections to, or indemnify Xxxxxxx respecting his past, present,
or future employment, consulting relationship, status as a fiduciary, or
position as an officer, or director of any Xxxxxxx'x Entity. Notwithstanding any
other provision in this Agreement to the contrary, this Section 2.5 shall
survive the termination of Xxxxxxx'x employment and Xxxxxxx'x death.
ARTICLE 3: TERM AND EFFECT OF TERMINATION OF EMPLOYMENT
3.1 Term. The employment relationship created herein is intended to be
temporary and is a calendar month-to-month at-will relationship. Such at-will
relationship may be terminated at any time by either Xxxxxxx'x or Xxxxxxx upon
thirty (30) days' prior written notice to the other party, provided that no
action shall alter or amend any other provisions hereof or rights arising
hereunder. A written notice by Xxxxxxx'x or Xxxxxxx given to the other party
pursuant to this Section 3.1 shall state that it or he has elected to terminate
Xxxxxxx'x employment hereunder and the effective date of such termination (the
"Termination Date"). As of the Termination Date and except as provided in
Article 6, Xxxxxxx shall terminate from employment with, and as an officer and
director of, Xxxxxxx'x and any other Xxxxxxx'x Entity and from any other
positions, posts, offices, or assignments respecting his association with
Xxxxxxx'x or any other Xxxxxxx'x Entity. Except as otherwise provided in Article
6, Xxxxxxx acknowledges and agrees that he shall have no authority to and will
not act as an employee, officer, director, or in any other capacity for any
Xxxxxxx'x Entity from and after the
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Termination Date. Notwithstanding anything in the foregoing to the contrary,
from and after the Termination Date, Xxxxxxx shall be permitted to continue, and
Xxxxxxx'x agrees that it will take no action to remove Xxxxxxx, as a member or
director or officer of the Texas Marketing Education Advisory Board and/or the
Texas A&M University Center for Executive Development.
3.2 Compensation Through Termination. Xxxxxxx'x shall pay to Xxxxxxx his
regular salary and benefits to the Termination Date. Such amounts shall be paid
less customary withholding for taxes and applicable deductions. Payments made
pursuant to this Section 3.2 together with payments made pursuant to Section 3.4
and, if applicable, Section 3.9 and Section 3.10, are in full satisfaction of
all wages, benefits, and other compensation owed by any other Xxxxxxx'x Entities
to Xxxxxxx for employment or service with any of the Xxxxxxx'x Entities through
the Termination Date. All of Xxxxxxx'x executive perquisites and benefits,
except as otherwise provided herein, shall cease as of the Termination Date;
provided, however, that Sections 2.4 and Section 2.5 shall survive Xxxxxxx'x
termination of employment.
3.3 Expenses. Xxxxxxx shall, within thirty (30) days of the Termination
Date, submit all actual, reasonable, and customary expenses incurred by him in
the course of his employment with proper documentation, which, upon
verification, Xxxxxxx'x shall reimburse promptly in accordance with Xxxxxxx'x
reimbursement policy. Xxxxxxx acknowledges and agrees that he will not incur and
has no authority to incur any employment related expenses after the Termination
Date and further agrees that Xxxxxxx'x shall have no obligation to reimburse
expenses not submitted within the time period set forth above except as provided
in Section 6.3.
3.4 Outplacement Services. Beginning upon a date of Xxxxxxx'x choice
subsequent to the Termination Date, Xxxxxxx'x shall provide, through a vendor
mutually agreed to by Xxxxxxx and Xxxxxxx'x, outplacement services for Xxxxxxx
in accordance with its customary policy of providing outplacement services for
officers upon severance of employment; provided, however, that such outplacement
services shall in no event be provided for a period in excess of one (1) year;
and, provided further, that such outplacement services shall in no event be
provided after December 31, 1998. Notwithstanding anything in the foregoing to
the contrary, the total cost to Xxxxxxx'x of such outplacement services shall
not exceed $30,000.
3.5 Continuing Rights in Benefit Plans. Except as otherwise expressly
provided herein, Xxxxxxx shall be entitled to receive the benefits to which he
is entitled under any employee pension benefit plans or employee welfare benefit
plans sponsored or maintained by the Xxxxxxx'x Entities according to their
terms. In the event of any change or modification of any such plans after the
Effective Date, including changes, if any, that may result in a reduction or
termination of benefits, Xxxxxxx and any beneficiaries claiming through him in
such plan or plans will be subject to such changes and modifications on the same
terms and conditions as all other participants or beneficiaries.
3.6 Cooperation. Xxxxxxx shall cooperate with the Xxxxxxx'x Entities to
the extent reasonably required in all matters relating to the winding up of his
pending work on behalf of any of the Xxxxxxx'x Entities and the orderly transfer
of any such pending work as designated by Xxxxxxx'x pending the Termination
Date. Xxxxxxx shall take such further action and execute any such
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further documents as may be reasonably necessary or appropriate in order to
carry out the provisions and purposes of this Agreement.
3.7 Company Assets. Promptly after Xxxxxxx'x termination of employment,
Xxxxxxx shall deliver to Xxxxxxx'x any property of any Xxxxxxx'x Entity or
Entities that is in his possession or control, including, without limitation,
any credit cards furnished by Xxxxxxx'x for his use.
3.8 Severance Agreement. Xxxxxxx shall have thirty (30) days (or, if
longer, the applicable period prescribed for valid waiver of claims under the
Age Discrimination in Employment Act or the Older Workers Benefit Protection
Act) from and after the Termination Date (the "Consideration Period") to
consider whether to execute the Severance Agreement and Release attached hereto
as Exhibit A (the "Severance Agreement"). At any time during the Consideration
Period, Xxxxxxx may elect (at his option and in his sole discretion) to execute
the Severance Agreement. Xxxxxxx shall exercise any such election by executing
and delivering the Severance Agreement to Xxxxxxx'x and upon such action, the
Severance Agreement shall be binding upon Xxxxxxx'x; provided, however, that
such election must be made within the Consideration Period and in accordance
with the foregoing provisions of this Section 3.8.
3.9 Death Benefit - Death Before Termination Date. In the event of
Xxxxxxx'x death while he is employed pursuant to Section 1.1, except as provided
in this Section 3.9 and except as provided in Section 2.2, Section 2.4, Section
2.5, Section 3.3, and Section 3.5, all of Xxxxxxx'x obligations pursuant to this
Agreement shall cease immediately upon such death; provided, however, that
Xxxxxxx'x estate shall be entitled to any unpaid amounts of Xxxxxxx'x base
salary (less applicable payroll tax withholding and deductions) though the end
of the calendar month in which Xxxxxxx'x death occurs; and provided further,
that Xxxxxxx'x shall pay to Xxxxxxx'x estate, within thirty (30) days after
Xxxxxxx'x has received notice of Xxxxxxx'x death, a lump sum cash payment in an
amount equal to $865,857 (less any applicable payroll tax withholding).
Notwithstanding anything to the contrary in the foregoing, in the event of
Xxxxxxx'x death while he is employed pursuant to Section 1.1, any "qualified
beneficiary" (as such term is defined in section 4980B(g)(1) of the Internal
Revenue Code of 1986, as amended (the "Code")) with respect to Xxxxxxx shall be
entitled to continue medical and/or dental insurance for thirty-six (36) months
following the date of Xxxxxxx'x death on the same terms and conditions and for
the same employee premium (reduced, if applicable, to reflect only such
qualified beneficiary's coverage) as set forth in Section 6.3.
3.10 Death Benefit - Death On Or After Termination Date. In the event of
Xxxxxxx'x death on or after the Termination Date but before the expiration of
his consulting engagement pursuant to Section 6.1, except as provided in this
Section 3.10 and except as provided in Section 2.2, Section 2.4, Section 2.5,
Section 3.2, Section 3.3, and Section 3.5, all of Xxxxxxx'x obligations pursuant
to this Agreement shall cease immediately upon such death; provided, however,
that Xxxxxxx'x shall pay to Xxxxxxx'x estate, within thirty (30) days after
Xxxxxxx'x has received notice of Xxxxxxx'x death, a lump sum cash payment in an
amount equal to the difference between (a) $865,857 and (b) the sum of (i) any
amounts paid out to Xxxxxxx by Xxxxxxx'x pursuant to Article 5 and Article 6
(other than as reimbursements for travel or related expenses or medical or
dental expenses) up to the date such death benefit payment is made and (ii) any
amounts forfeited by Xxxxxxx under this Agreement due to any breach of this
Agreement by Xxxxxxx (other than any breach
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due to his death). The foregoing payment shall be net of any applicable payroll
tax withholding. Notwithstanding anything to the contrary in the foregoing, in
the event that Xxxxxxx has executed and delivered the Severance Agreement to
Xxxxxxx'x in accordance with Section 3.8 and Xxxxxxx has not revoked the
Severance Agreement within the seven-day period referred to in paragraph 16
thereof, then the figure "$218,000" shall be substituted in place of the figure
"$865,857" for purposes of determining the amount of the payment due Xxxxxxx'x
estate under the immediately preceding sentence. Notwithstanding anything to the
contrary in the foregoing, in the event of Xxxxxxx'x death on or after the
Termination Date, any "qualified beneficiary" (as such term is defined in
section 4980B(g)(l) of the Code) with respect to Xxxxxxx shall be entitled to
continue medical and/or dental insurance following the date of Xxxxxxx'x death
for the remaining unexpired portion of the term of thirty-six (36) months, on
the same terms and conditions, and for the same employee premium (reduced, if
applicable, to reflect only such qualified beneficiary's coverage) set forth in
Section 6.3.
ARTICLE 4: CONFIDENTIAL INFORMATION
4.1 Proprietary and Confidential Information. In accordance with Xxxxxxx'x
existing and continuing obligations, Xxxxxxx agrees and acknowledges that the
various Xxxxxxx'x Entities have developed and own valuable "Proprietary and
Confidential Information" which constitutes valuable and unique property
including, without limitation, concepts, ideas, plans, strategies, analyses,
surveys, and proprietary information related to the past, present, or
anticipated business of various of the Xxxxxxx'x Entities, including, but not
limited to, costs, prices, uses, applications of products and services, results
of investigations or experiments, and all apparatus, products, processes,
compositions, samples, formulas, computer programs, pricing policy, financial
information, policy and/or procedure manuals, training and recruiting
procedures, accounting procedures, the status and content of Xxxxxxx'x Entities'
contracts with suppliers, employees, and customers, the Xxxxxxx'x Entities'
business philosophy, and servicing, retailing, or marketing methods and
techniques at any time used, developed, or investigated by any Xxxxxxx'x Entity
which are not generally available to the public or which are maintained as
confidential by any Xxxxxxx'x Entity. Moreover, Xxxxxxx agrees and acknowledges
that the term Proprietary and Confidential Information of the Xxxxxxx'x Entities
includes, without limitation, all analyses, correspondence, data or information,
memoranda, notes, records, or other documents, including charts or drawings, and
all copies thereof, made, composed, or received by Xxxxxxx, solely or jointly
with others, and which are in Xxxxxxx'x possession, custody, or control and
which are related in any manner to the past, present, or anticipated business of
any of the Xxxxxxx'x Entities. Except as may be required by law, Xxxxxxx agrees
that he will not at any time, either during or subsequent to the term of this
Agreement, disclose to others, permit to be disclosed, use, permit to be used,
copy, or permit to be copied, except in pursuance of his services on behalf of
any Xxxxxxx'x Entity pursuant to Article 6, any such Proprietary and
Confidential Information (whether or not developed by Xxxxxxx) without Xxxxxxx'x
prior written consent. Except as may be required by law, Xxxxxxx further agrees
to maintain in confidence any proprietary and confidential information of third
parties received or of which Xxxxxxx has knowledge as a result of his
employment, consulting engagement, association, or work with any Xxxxxxx'x
Entity. Xxxxxxx agrees that Xxxxxxx'x shall be entitled to inform all potential
or new employers of this Agreement. The prohibitions of this Section 4.1 shall
not apply, however, to information in the public domain (but only if the same
becomes part of the public domain through a means other than a disclosure
prohibited hereunder).
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4.2 Documents. Xxxxxxx agrees to leave in his office or deliver to
Xxxxxxx'x at the termination of his employment all correspondence, memoranda,
notes, records, drawings, sketches, plans, supplier lists, employee lists,
customer lists, product compositions, data or information, analysis, or other
documents and all copies thereof (all of which are hereafter referred to as the
"Documents") which are in his possession, custody, or control and which are
related in any manner to the past, present, or anticipated business of any of
the Xxxxxxx'x Entities. In this regard, Xxxxxxx hereby grants and conveys to
Xxxxxxx'x all right, title, and interest in and to, including, without
limitation, the right to possess, print, copy, and sell or otherwise dispose of
any reports, records, papers, summaries, photographs, drawings, data,
information, or other documents, and writings, and copies, abstracts or
summaries thereof which may have been prepared by Xxxxxxx or under his direction
or which may have come into Xxxxxxx'x possession in any way during the term of
his employment with any of the Xxxxxxx'x Entities which relate in any manner to
past, present, or anticipated business of any of the Xxxxxxx'x Entities. Xxxxxxx
acknowledges that all work performed, including but not limited to all Documents
and other writings authored in whole or in part by him pursuant to his
employment or his consulting engagement shall be deemed "work made for hire"
under the Copyright Act and further agrees to assign, and does hereby assign, to
Xxxxxxx'x all rights therein, including, without limitation, all copyrights
therein, all rights to prepare derivative works therefrom, and all writer's,
consultant's, architect's, engineer's, or other proprietary or "moral" rights
therein for the full term thereof, throughout the world. Xxxxxxx shall not use,
sell, or reproduce such work or any part thereof, without Xxxxxxx'x prior
written permission. Notwithstanding anything in the foregoing to the contrary,
however, Xxxxxxx'x and Xxxxxxx agree that Xxxxxxx may keep copies of speeches
that Xxxxxxx delivered while employed by Xxxxxxx'x and, after the date which is
two (2) years after the Termination Date, such speeches shall be considered to
be in the public domain and may be used by Xxxxxxx as he sees fit. In the event
of a breach or threatened breach of any of the provisions of Section 4.1 or
Section 4.2, Xxxxxxx'x shall be entitled to an injunction ordering the return of
such Proprietary and Confidential Information and Documents and any and all
copies thereof and restraining Xxxxxxx from using or disclosing, for Xxxxxxx'x
benefit or the benefit of others, in whole or in part, any Proprietary and
Confidential Information, including, but not limited to, the Proprietary and
Confidential Information which such Documents contain, constitute, or embody.
Xxxxxxx further agrees that any breach or threatened breach of any of the
provisions of Section 4.1 or Section 4.2 would cause irreparable injury to
Xxxxxxx'x for which it would have no adequate remedy at law. Nothing herein
shall be construed as prohibiting Xxxxxxx'x from pursuing any other remedies
available to it for any such breach or threatened breach, including the recovery
of damages.
ARTICLE 5: NON-COMPETITION AND COVENANTS REGARDING EMPLOYEES
5.1 Non-Competition. Xxxxxxx and Xxxxxxx'x agree and acknowledge that
Xxxxxxx'x Entities have developed and own valuable Proprietary and Confidential
Information (as defined in Section 4.1) and that Xxxxxxx'x Entities have
developed substantial goodwill. Xxxxxxx and Xxxxxxx'x further agree and
acknowledge that Xxxxxxx'x has a substantial and legitimate interest in
protecting its Proprietary and Confidential Information and goodwill. Xxxxxxx'x
and Xxxxxxx further agree and acknowledge that the provisions of this Section
5.1 are reasonably necessary to protect Xxxxxxx'x legitimate business interests.
During the two (2) year period following the Termination Date, Xxxxxxx shall
not, as a shareholder, director, employee, officer, partner, consultant, or
otherwise, at
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any location in the United States, engage directly or indirectly in any business
or enterprise which is "in competition" with any Xxxxxxx'x Entity. A business or
enterprise "in competition" with any Xxxxxxx'x Entity includes any business or
enterprise that is engaged in any business activity of wholesale or retail
grocery distribution within Texas. However, Xxxxxxx shall be allowed to purchase
and hold for investment less than two percent (2%) of the shares of any
corporation in competition with any Xxxxxxx'x Entity whose shares are regularly
traded on a national securities exchange or in the over-the-counter market.
Xxxxxxx further agrees that the existence of any claim or cause of action of
Xxxxxxx against Xxxxxxx'x, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Xxxxxxx'x of any or all of
this Section 5.1. Xxxxxxx agrees that the scope of the restrictions as to time,
geographic area, and scope of activity in this Section 5.1 are reasonably
necessary for the protection of Xxxxxxx'x legitimate business interests and are
not oppressive or injurious to the public interest. As independent and valuable
consideration for Xxxxxxx'x obligations pursuant to this Section 5.1, Xxxxxxx'x
agrees to pay to Xxxxxxx a total of $200,000 over the two (2) year term of this
Section 5.1 in equal bi-weekly installments (less any applicable withholding for
taxes) with the first installment payable as of the Termination Date. Xxxxxxx
agrees that in the event of a breach or threatened breach of any of the
provisions of this Section 5.1, Xxxxxxx'x shall be entitled to inform all
potential or new employers of Xxxxxxx of this Section 5.1, and Xxxxxxx'x shall
be entitled to injunctive relief against Xxxxxxx'x activities to the extent
allowed by law. Xxxxxxx further agrees that any breach or threatened breach of
any of the provisions of this Section 5.1 would cause irreparable injury to
Xxxxxxx'x for which it would have no adequate remedy at law. Xxxxxxx and
Xxxxxxx'x acknowledge that in the event Xxxxxxx breaches any obligation under
this Section 5.1, the amount of damages caused by such breach is impossible or
difficult to quantify. Therefore, Xxxxxxx and Xxxxxxx'x agree that, in the event
Xxxxxxx materially breaches any of his obligations pursuant to this Section 5.1,
as liquidated damages, all payments pursuant to this Section 5.1 shall cease
immediately and no further payments shall be paid pursuant to this Section 5.1.
Xxxxxxx and Xxxxxxx'x agree that the liquidated damages provided herein are a
reasonable measure of recovery of damages in the event of a breach of Xxxxxxx'x
obligations pursuant to this Section 5.1 and are not provided as a penalty and
further, that such liquidated damages shall serve as the only measure of damages
in the event of such a breach. Nothing herein shall be construed as prohibiting
Xxxxxxx'x from pursuing any other remedies available to it for any such breach
or threatened breach; provided, however, that any recovery of damages shall be
in accordance with the foregoing liquidated damage provisions. Notwithstanding
anything in the foregoing to the contrary, not more than once in any six (6)
month period (or, if the Board of Directors of Xxxxxxx'x (the "Board") so
consents in its sole discretion, on a more frequent basis), Xxxxxxx may consult
with the Board with respect to any proposed activity or a reasonable number of
proposed activities of Xxxxxxx and, if Xxxxxxx obtains written permission from
the Board to engage in such activity or activities, such activity or activities
shall not constitute a breach of Xxxxxxx'x obligations pursuant to this Section
5.1.
5.2 Covenants Regarding Employees and Suppliers. Xxxxxxx agrees that
during the three (3) year period following the Termination Date, he will not, at
any location in the United States, solicit or induce any employee of any
Xxxxxxx'x Entity to terminate employment, accept employment with anyone else, or
to interfere in a similar manner with the business of any Xxxxxxx'x Entity.
Xxxxxxx further agrees that during the three (3) year period following the
Termination Date, he will not, at any location in the United States, in
connection with or for the benefit of any business
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"in competition" (as defined in Section 5.1) with any Xxxxxxx'x Entity, solicit,
contact, canvass, or attempt to solicit, contact, or canvass any of the
suppliers or employees of any Xxxxxxx'x Entity with whom Xxxxxxx had direct or
indirect contact while he was performing services for any Xxxxxxx'x Entity.
Notwithstanding anything in the foregoing to the contrary, Xxxxxxx may contact
suppliers of Xxxxxxx'x so long as that contact does not involve or concern the
business activity of wholesale or retail grocery distribution in Texas.
ARTICLE 6: CONSULTING ENGAGEMENT
6.1 Consulting Services. From and after the Termination Date, Xxxxxxx will
consult and cooperate with Xxxxxxx'x on matters involving pending or future
litigation in which Xxxxxxx'x is or may be involved and such other matters and
at such times and places as Xxxxxxx'x may reasonably request. It is contemplated
that Xxxxxxx'x consulting services will be rendered on an irregular and
part-time basis. Xxxxxxx will not be required to follow any established work
schedule or to report to Xxxxxxx'x at any specified times, either when
performing consulting services or during periods when Xxxxxxx is not performing
services but is holding himself available to so perform; provided, however, that
Xxxxxxx'x presence and cooperation at certain conferences, depositions, and
court appearances which relate to matters involving litigation may be required
from time to time. In the performance of consulting services requested by
Xxxxxxx'x, Xxxxxxx shall coordinate the furnishing of his services with
representatives of Xxxxxxx'x, but the method and manner of performance of such
services shall be within the control of Xxxxxxx; provided, however, that in
matters involving litigation, Xxxxxxx shall cooperate fully with Xxxxxxx'x and
Xxxxxxx'x outside counsel. Xxxxxxx'x shall not exercise supervision of Xxxxxxx
in the performance of his consulting services.
6.2 Consulting Term. Xxxxxxx'x engagement as a consultant by Xxxxxxx'x
pursuant to this Agreement shall continue until the expiration of three (3)
years from the Termination Date.
6.3 Consulting Fee. Recognizing that Xxxxxxx'x consulting services will be
rendered on an irregular and part-time basis, and in consideration for Xxxxxxx'x
covenants and promises in Section 6.1, Xxxxxxx'x shall pay Xxxxxxx a consulting
fee of $6,000 per annum payable as one lump sum amount of $18,000 upon the
Termination Date. As further payment for Xxxxxxx'x consulting services,
Xxxxxxx'x shall furnish to Xxxxxxx medical and dental insurance for thirty-six
(36) months following the Termination Date on the same terms and conditions as
it is offered to officers of Xxxxxxx'x who are currently employed and as set
forth in Xxxxxxx'x medical and dental plan(s), subject to Xxxxxxx'x right to
amend, modify, or terminate such plan(s) providing such medical and/or dental
insurance; and, further provided, that any employee premium due for such medical
and/or dental insurance shall be paid by Xxxxxxx on or before the first day of
each month to which such insurance relates. Notwithstanding the foregoing, in
the event medical and/or dental insurance becomes available to Xxxxxxx through
another employer, (a) Xxxxxxx agrees to notify Xxxxxxx'x of such availability
within thirty (30) days of the time such insurance becomes available and (b)
irrespective of the time Xxxxxxx gives such notice, the medical and/or dental
insurance, as applicable, provided pursuant to this paragraph 18 shall cease
immediately upon such availability. The consideration set forth in this Section
6.3 shall constitute payment in full for Xxxxxxx holding himself available to
provide consulting services and for any and all consulting services actually
performed for Xxxxxxx'x by Xxxxxxx. Xxxxxxx will pay all social security,
federal income taxes, and all other
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liabilities and taxes incurred by, or on behalf of, or for the benefit of,
Xxxxxxx arising out of the performance of consulting services, and Xxxxxxx'x
shall have no liability for any such taxes or other liabilities.
6.4 Consulting Expenses. To the extent that Xxxxxxx incurs travel and/or
other related expenses at the request of Xxxxxxx'x in the performance of
Xxxxxxx'x consulting services, Xxxxxxx'x agrees to reimburse Xxxxxxx for such
actual and reasonable expenses so incurred.
6.5 Confidential Information. Xxxxxxx recognizes and acknowledges that as
a consultant he will have access to Proprietary and Confidential Information (as
defined in Section 4.1) during his engagement as a consultant. Xxxxxxx expressly
agrees that the provisions of Section 4.1 will at all times apply to any
Proprietary and Confidential Information which he has access to as a consultant.
6.6 Consulting Documents. Xxxxxxx further agrees to deliver to Xxxxxxx'x
at the termination of his consulting engagement all Documents in accordance with
the provisions of Section 4.2; and Xxxxxxx further agrees that Section 4.2 shall
apply in its entirety to his consulting engagement with Xxxxxxx'x.
ARTICLE 7: MISCELLANEOUS
7.1 Effective Date. The Effective Date of this Agreement shall be the date
upon which this Agreement is signed by both Xxxxxxx and an authorized officer of
Xxxxxxx'x.
7.2 Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by United States registered or certified
mall, return receipt requested, postage prepaid, addressed as follows:
If to Randall's to: Xxxxxxx'x Food Markets, Inc.
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
and
Kohlberg Kravis Xxxxxxx & Co.
c/o Xx. Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to Xxxxxxx to: Xxxxxx X. Xxxxxxx
00 Xxxx Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
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7.3 Assignability. Xxxxxxx'x rights and obligations hereunder may not be
sold, transferred, assigned, or otherwise alienated as this Agreement is
personal to Xxxxxxx.
7.4 Remedies. Xxxxxxx and Xxxxxxx'x agree that, because damages at law for
any breach or nonperformance of this Agreement by Xxxxxxx, while recoverable,
will be inadequate, this Agreement may be enforced in equity by specific
performance, injunction, accounting, or otherwise. Further, Xxxxxxx and
Xxxxxxx'x agree that, in the event Xxxxxxx breaches any of his obligations under
this Agreement, Xxxxxxx'x right to continued coverage under Xxxxxxx'x medical
and dental plan(s) pursuant to Section 6.3 shall be forfeited; provided,
however, that in the event of such a forfeiture, Xxxxxxx, and any "qualified
beneficiary" (as such term is defined in section 4980B(g)(l) of the Code) with
respect to Xxxxxxx, shall have the right to elect COBRA coverage pursuant to
Section 7.5.
7.5 COBRA Rights. Upon the termination of Xxxxxxx'x medical and/or dental
insurance by reason of (a) the expiration of the thirty-six (36) month period
provided by Section 6.3, Section 3.9, or Section 3.10 together with Section 6.3,
(b) the availability to Xxxxxxx of medical and/or dental insurance through
another employer, or (c) forfeiture pursuant to Section 7.4, such termination
shall be treated as a qualifying event pursuant to section 4980B(f)(3) of the
Code for purposes of determining the COBRA rights of Xxxxxxx and/or any
"qualified beneficiary" (as such term is defined in section 4980B(g)(1) of the
Code) with respect to Xxxxxxx.
7.6 Enforcement of Agreement. No waiver or nonaction with respect to any
breach by the other party of any provision of this Agreement, nor the waiver or
nonaction with respect to any breach of the provisions of similar agreements
with other employees shall be construed to be a waiver of any succeeding breach
of such provision, or as a waiver of the provision itself. Should any provisions
hereof be held to be invalid or wholly or partially unenforceable, such holdings
shall not invalidate or void the remainder of this Agreement. Portions held to
be invalid or unenforceable shall be revised and reduced in scope so as to be
valid and enforceable, or, if such is not possible, then such portion shall be
deemed to have been wholly excluded with the same force and effect as if they
had never been included herein.
7.7 Choice of Law. This Agreement shall be governed by and construed and
enforced, in all respects, in accordance with the laws of the State of Texas.
7.8 Merger. This Agreement supersedes, replaces, and merges all previous
agreements and discussions relating to the same or similar subject matters
between Xxxxxxx and Xxxxxxx'x and constitutes the entire agreement between
Xxxxxxx and Xxxxxxx'x with respect to the subject matter of this Agreement. This
Agreement may not be changed or terminated orally, and no change, termination,
or waiver of this Agreement or any of the provisions herein contained shall be
binding unless made in writing and signed by all parties, and in the case of
Xxxxxxx'x, by an authorized officer.
7.9 Confidentiality. Xxxxxxx agrees that, following execution of this
Agreement, he will not disclose the terms thereof or the consideration for it
received from Xxxxxxx'x, to any other person, except in the case where, and only
to the extent that, there is a bona fide need for such disclosure to a third
party, such as in connection with obtaining advice or furnishing personal
financial information, and, in each such case, only on the condition that such
other person keeps such
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information strictly confidential. The foregoing exception notwithstanding,
Xxxxxxx agrees that such information will in no case be disclosed to any
employee or former employee of any of the Xxxxxxx'x Entities. The foregoing
obligations of confidentiality shall not apply to information that is required
to be disclosed as a result of any applicable law, rule, or regulation of any
governmental authority, any stock exchange, or any court.
7.10 Agreement Voluntary. Xxxxxxx acknowledges and agrees that he has
carefully read this Agreement and that he has entered into this Agreement for
the above stated consideration. Xxxxxxx warrants that he is fully competent to
execute this Agreement which he understands to be contractual. Xxxxxxx further
acknowledges that he executes this Agreement of his own free will, after having
a reasonable period of time to review, study, and deliberate regarding its
meaning and effect, and after being advised to consult an attorney, and without
reliance on any representation of any kind or character not expressly set forth
herein. Finally, fully knowing its effect and for the consideration stated
above, Xxxxxxx voluntarily executes this Agreement.
7.11 Headings. The section headings contained herein are for the purpose
of convenience only and are not intended to define or limit the contents of such
sections.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in multiple counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument, this 1st day
of April, 1997.
XXXXXXX'X FOOD MARKETS, INC.
By: /s/ R. Xxxxxxx Xxxxxxx
--------------------------
Name: R. Xxxxxxx Xxxxxxx
Title: President and CEO
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------
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EXHIBIT A
SEVERANCE AGREEMENT AND RELEASE
THIS SEVERANCE AGREEMENT AND RELEASE ("Agreement and Release") is entered
into by and between Xx. Xxxxxx X. Xxxxxxx ("Xxxxxxx"), a resident of Houston,
Texas, and Xxxxxxx'x Food Markets, Inc. ("Randall's"), a Texas corporation,
having its principal place of business in Houston, Texas.
WITNESSETH:
WHEREAS, Xxxxxxx at various times, has been an employee, officer, and
director of Randall's, certain of its affiliated and subsidiary companies,
and/or their predecessors or successors in interest (collectively, with
Xxxxxxx'x, the "Xxxxxxx'x Entities" or, individually, a "Xxxxxxx'x Entity"); and
WHEREAS, Xxxxxxx has terminated from any and all positions he holds with
Xxxxxxx'x or any other Xxxxxxx'x Entity, in the capacity of an employee,
officer, director, or any other position or capacity held by virtue of his
employment by Xxxxxxx'x or any other Xxxxxxx'x Entity; and
WHEREAS, Xxxxxxx and Xxxxxxx'x have previously entered into a certain
Employment and Consulting Agreement (the "E and C Agreement") pursuant to which,
following Xxxxxxx'x termination of employment with Xxxxxxx'x and at Xxxxxxx'x
election, Xxxxxxx may enter into this Agreement and Release whereby Xxxxxxx
releases any claims or causes of action he may have arising from or relating to
his employment or service or association with Xxxxxxx'x or any of the other
Xxxxxxx'x Entities; and
WHEREAS, Xxxxxxx desires to release any claims or causes of action he may
have arising from or relating to his employment or service or association with
Xxxxxxx'x or any of the other Xxxxxxx'x Entities;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Xxxxxxx and
Xxxxxxx'x hereby agree:
1. Termination. Xxxxxxx hereby acknowledges that the payments made
pursuant to Section 3.2 of the E and C Agreement together with the outplacement
services provided pursuant to Section 3.4 of the E and C Agreement are in full
satisfaction of all wages, benefits, and other compensation owed by any of the
Xxxxxxx'x Entities to Xxxxxxx for employment or service to the effective date of
his termination of employment (the "Termination Date").
2. Severance Payments. Xxxxxxx'x agrees to pay to Xxxxxxx the following
severance payments:
(a) For the period, if any, beginning on the Effective Date (as such
term is defined in paragraph 18) and ending on the Severance Payment
Date (as defined below), Xxxxxxx'x shall pay to Xxxxxxx, on a
bi-weekly basis, an amount equal to (a) his regular salary less (b)
any amount paid during such bi-weekly time period pursuant to
Section 5.1 of the E and C Agreement; provided, however, that any
payment pursuant to this subparagraph 2(a) shall be further reduced
for any customary payroll tax withholding and applicable deductions;
and
(b) On the Severance Payment Date, Xxxxxxx'x shall pay to Xxxxxxx a lump
sum cash payment in an amount equal to $647,857 less the gross
amount (after adding back in any withholding and deductions) paid
pursuant to subparagraph 2(a) above (if any). Any payment pursuant
to this subparagraph 2(b) shall be further reduced for any customary
payroll tax withholding and applicable deductions.
For purposes of this paragraph 2, the term "Severance Payment Date" shall mean
the later of (i) the Effective Date or (ii) the earlier of (A) the date of the
closing of the "transactions" which are the subject of the Subscription
Agreement dated as of April 2, 1997, among a Randall's Entity, an affiliate of
Kohlberg Kravis Xxxxxxx & Co., and Xxxxxx X. Xxxxxxx, or (B) September 1, 1997.
Xxxxxxx acknowledges and agrees that these severance payments exceed and fully
satisfy any claim for severance he may have pursuant to any plan for severance
maintained by any Xxxxxxx'x Entity. In the event that Xxxxxxx is entitled to
severance payments pursuant to any severance plan or program of any Xxxxxxx'x
Entity that cannot be voluntarily released by Xxxxxxx, the severance payment,
set forth in this paragraph 2 shall be offset and reduced by any such payments.
3. Prior Rights and Obligations. Except as otherwise expressly provided
herein or in the E and C Agreement, this Agreement and Release extinguishes all
rights, if any, which Xxxxxxx may have, and obligations, if any, which any of
the Xxxxxxx'x Entities may have, contractual or otherwise, relating to the
employment or resignation or termination of employment of Xxxxxxx with Xxxxxxx'x
or any of the other Xxxxxxx'x Entities. All of Xxxxxxx'x executive perquisites
and benefits, except as otherwise provided herein or in the E and C Agreement,
shall cease as of the Effective Date.
4. Stock Option and Restricted Stock Plan. This Agreement and Release
shall hereby amend the Restricted Period as set forth in the Restricted Stock
Agreement effective September 30, 1996, between Xxxxxxx'x and Xxxxxxx (the
"Restricted Stock Agreement"). The Restricted Period in paragraph 2 of the
Restricted Stock Agreement shall expire as of the Effective Date and the shares
subject to such Restricted Stock Agreement shall be delivered to Xxxxxxx at the
same time the severance payment pursuant to subparagraph 2(b) is made provided
that the conditions precedent set forth in paragraph 7 of the Restricted Stock
Agreement are met.
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5. Company Assets. Xxxxxxx hereby represents and warrants that he has no
claim or right, title, or interest in any property designated on the books of
any Xxxxxxx'x Entities as property or assets of any of the Xxxxxxx'x Entities.
Promptly after execution of this Agreement and Release, Xxxxxxx shall deliver to
Xxxxxxx'x any such property in his possession or control.
6. Xxxxxxx'x Representation. Xxxxxxx represents, warrants, and agrees that
he has not filed any claims, appeals, complaints, charges, or lawsuits against
any of the Xxxxxxx'x Entities or their respective employees, officers,
directors, shareholders, agents, and representatives (collectively, including
the Xxxxxxx'x Entities, the "Xxxxxxx'x Parties") with any governmental agency or
court and that he will not file or permit to be filed or accept benefit from any
such claim, complaint, or petition filed with any court by him or on his behalf
at any time hereafter; provided, however, this shall not limit Xxxxxxx from
benefiting as a class member in Xxxxx X. Xxxx and Xxxxxx X. Xxxxx x. Xxxxxxxx
Food Markets, Inc., et al. and this shall not limit Xxxxxxx from filing an
action for the sole purpose of enforcing his rights under this Agreement and
Release or under the E and C Agreement, and provided further, this paragraph 6
shall not limit Xxxxxxx from filing an action for the sole purpose of enforcing
his rights pursuant to any plan maintained by Xxxxxxx'x which is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Xxxxxxx
represents and warrants that no other person or entity has any interest or
assignment of any claims or causes of action, if any, he may have against any
Xxxxxxx'x Party and which, except as provided herein, he now releases in their
entirety.
7. Release. Xxxxxxx agrees to release, acquit, and discharge and does
hereby release, acquit, and discharge Xxxxxxx'x, all Xxxxxxx'x Entities, and all
Xxxxxxx'x Parties, collectively and individually, from any and all claims and
from any and all causes of action, of any kind or character, whether now known
or not known, he may have against any of them, including, but not limited to,
any claim for salary, benefits, expenses, costs, damages, compensation,
remuneration, or wages; and all claims or causes of action arising from his
employment, termination of employment, or any alleged discriminatory employment
practices, including, but not limited to, any and all claims or causes of action
arising under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Texas Commission
on Human Rights Act, or any and all claims or causes of action arising under any
other federal, state, or local laws pertaining to discrimination in employment
or equal employment opportunity. This release also applies to any claims brought
by any person or agency or class action under which Xxxxxxx may have a right or
benefit; provided, however, this release shall not limit Xxxxxxx from benefiting
as a class member in Xxxxx X. Xxxx and Xxxxxx X. Xxxxx x. Xxxxxxxx Food Markets,
Inc., et al.; and provided further, however, this release shall not discharge
Xxxxxxx'x rights pursuant to any plan maintained by Xxxxxxx'x which is subject
to ERISA. Notwithstanding anything to the contrary in the foregoing, nothing in
this paragraph 7 shall serve to waive or release any rights or claims that may
arise after the date this Agreement is executed and nothing in this paragraph 7
shall affect any future obligation Xxxxxxx'x may have pursuant to Section 2.4
and Section 2.5 of the E and C Agreement.
8. No Admissions. Xxxxxxx expressly understands and agrees that the terms
of this Agreement and Release are contractual and not merely recitals and that
the agreements herein and consideration paid is to compromise doubtful and
disputed claims, if any, avoid litigation, and buy
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peace, and that no statement or consideration given shall be construed as an
admission of liability by any Xxxxxxx'x Party, all such liability being
expressly denied.
9. Assignability. Xxxxxxx'x rights and obligations hereunder may not be
sold, transferred, assigned, or otherwise alienated as this Agreement and
Release is personal to Xxxxxxx.
10. Remedies. Xxxxxxx and Xxxxxxx'x agree that, because damages at law for
any breach or nonperformance of this Agreement and Release by Xxxxxxx, while
recoverable, will be inadequate, this Agreement and Release may be enforced in
equity by specific performance, injunction, accounting, or otherwise.
11. Enforcement of Agreement and Release. No waiver or nonaction with
respect to any breach by the other party of any provision of this Agreement and
Release, nor the waiver or nonaction with respect to any breach of the
provisions of similar agreements with other employees shall be construed to be a
waiver of any succeeding breach of such provision, or as a waiver of the
provision itself. Should any provisions hereof be held to be invalid or wholly
or partially unenforceable, such holdings shall not invalidate or void the
remainder of this Agreement and Release. Portions held to be invalid or
unenforceable shall be revised and reduced in scope so as to be valid and
enforceable, or, if such is not possible, then such portion shall be deemed to
have been wholly excluded with the same force and effect as if they had never
been included herein.
12. Choice of Law. This Agreement and Release shall be governed by and
construed and enforced, in all respects, in accordance with the laws of the
State of Texas.
13. Merger. This Agreement and Release supersedes, replaces, and merges
all previous agreements (other than the E and C Agreement) and discussions
relating to the same or similar subject matters between Xxxxxxx and Xxxxxxx'x
and constitutes the entire agreement between Xxxxxxx and Xxxxxxx'x with respect
to the subject matter of this Agreement and Release. This Agreement and Release
may not be changed or terminated orally, and no change, termination, or waiver
of this Agreement and Release or any of the provisions herein contained shall be
binding unless made in writing and signed by all parties, and in the case of
Xxxxxxx'x, by an authorized officer.
14. No Derogatory Comments. Following the Effective Date, each of the
Xxxxxxx'x Parties and Xxxxxxx shall refrain from making public or private
comments relating to any Xxxxxxx'x Party and Xxxxxxx, respectively, which are
derogatory or which may tend to injure any such party in its business, public or
private affairs.
15. Confidentiality. Xxxxxxx agrees that, following execution of this
Agreement and Release, he will not disclose the terms hereof or the
consideration for it received from Xxxxxxx'x, to any other person, except in the
case where, and only to the extent that, there is a bona fide need for such
disclosure to a third party, such as in connection with obtaining advice or
furnishing personal financial information, and, in each such case, only on the
condition that such other person keeps such information strictly confidential.
The foregoing exception notwithstanding, Xxxxxxx agrees that such information
will in no case be disclosed to any employee or former employee of any of the
Xxxxxxx'x Entities. The foregoing obligations of confidentiality shall not apply
to information that is required
-4-
to be disclosed as a result of any applicable law, rule, or regulation of any
governmental authority, any stock exchange, or any court.
16. ADEA Rights. Xxxxxxx acknowledges and agrees:
(a) that he has at least twenty-one (21) days or, if longer, the
applicable period for valid waiver of claims under the Age Discrimination
in Employment Act or the Older Workers Benefit Protection Act to review
this Agreement and Release before accepting;
(b) that he has been advised in writing by Xxxxxxx'x to consult with
an attorney regarding the terms of this Agreement and Release;
(c) that, if he accepts this Agreement and Release, he has seven (7)
days following the execution of this Agreement and Release to revoke this
Agreement and Release.
17. Agreement and Release Voluntary. Xxxxxxx acknowledges and agrees that
he has carefully read this Agreement and Release and understands that, except as
expressly reserved herein, it is a release of all claims, known and unknown,
past or present, including all claims under the Age Discrimination in Employment
Act. Xxxxxxx further agrees that he has entered into this Agreement and Release
for the above stated consideration. Xxxxxxx warrants that he is fully competent
to execute this Agreement and Release which he understands to be contractual.
Xxxxxxx further acknowledges that he executes this Agreement and Release of his
own free will, after having a reasonable period of time to review, study, and
deliberate regarding its meaning and effect, and after being advised to consult
an attorney, and without reliance on any representation of any kind or character
not expressly set forth herein. Finally, fully knowing its effect and for the
consideration stated above, Xxxxxxx voluntarily executes this Agreement and
Release.
18. Effective Date. The "Effective Date" of this Agreement and Release
shall be the eighth day after Xxxxxxx'x execution and delivery to Xxxxxxx'x of
this Agreement and Release in accordance with the terms and conditions set forth
in Section 3.8 of the E and C Agreement, provided that Xxxxxxx has not revoked
this Agreement and Release pursuant to paragraph 16(c). If Xxxxxxx revokes this
Agreement and Release pursuant to paragraph 16(c), then this Agreement and
Release shall be null and void.
19. Death Benefits. In the event of Xxxxxxx'x death prior to his receipt
of all payments and other benefits provided for herein, Xxxxxxx'x heirs,
administrators, or legatees shall be entitled under this Agreement and Release
to all of such remaining payments and benefits that otherwise would have been
due Xxxxxxx.
20. Headings. The paragraph headings contained herein are for the purpose
of convenience only and are not intended to define or limit the contents of such
paragraphs.
-5-
21. Notices. Any notices required or permitted to be given under this
Agreement and Release shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Randall's to: Xxxxxxx'x Food Markets, Inc.
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
and
Kohlberg Kravis Xxxxxxx & Co.
c/o Xx. Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to Xxxxxxx to: Xxxxxx X. Xxxxxxx
00 Xxxx Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
IN WITNESS WHEREOF, the parties have caused this Agreement and Release to
be executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument, this ______ day of ___________________, __________.
XXXXXXX'X FOOD MARKETS, INC.
By:
--------------------------
Name:
----------------------
Title:
---------------------
Xxxxxx X. Xxxxxxx
-----------------------------
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