Exhibit 10.28
SEPARATION AGREEMENT AND GENERAL RELEASE
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This Separation Agreement and General Release ("Agreement") is entered into
by and between Xxxxxxx X. Xxxxxx ("Xxxxxx") and SUPERVALU INC. ("SUPERVALU").
WHEREAS, Xxxxxx'x employment and his duties with SUPERVALU as Executive
Vice President and President & Chief Operating Officer, Retail Food Companies
will terminate by mutual agreement effective December 2, 2000; and
WHEREAS, Xxxxxx and SUPERVALU desire to fully and finally settle all legal
issues, differences and actual and potential claims between them, including, but
in no way limited to, any claim that might arise out of Xxxxxx'x employment with
SUPERVALU and the termination thereof;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
Xxxxxx and SUPERVALU agree as follows:
1. Xxxxxx hereby resigns from his employment and his position with
SUPERVALU as Executive Vice President and President & Chief Operating Officer,
Retail Food Companies, effective December 2, 2000.
2. For the period December 3, 2000 through June 2, 2001, SUPERVALU agrees
as follows:
a. To continue pay biweekly in an amount equal to Xxxxxx'x biweekly
base compensation, less legally required deductions ("Severance Pay");
b. To reimburse Xxxxxx for the grossed up cost of COBRA coverage
through November 30, 2001. SUPERVALU's obligation hereunder shall terminate
immediately if and when Xxxxxx becomes employed elsewhere and becomes eligible
to receive any such medical and dental benefits from a new employer.
c. If by June 2, 2001, Xxxxxx has not secured a comparable position,
he will be eligible to receive additional Severance Pay until he secures a
position up to a maximum period of twenty-six additional weeks. Xxxxxx agrees
that he will immediately inform SUPERVALU when he becomes employed or engaged in
any manner to provide services for compensation during the period June 2, 2001
through December 2, 2001.
3. It is understood that the gross amount of any payment to be made by
SUPERVALU pursuant to paragraph 2(c) shall be reduced by the gross amount of:
a. Any compensation received by Xxxxxx from any subsequent employer,
principal, or entity during that same period; and
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b. Any income from self-employment in excess of reasonable expenses
related to self-employment incurred by Xxxxxx during that same period; provided
that no deduction shall be made for remuneration received by Xxxxxx in exchange
for public appearances that are not made in connection with ongoing employment
or engagement.
4. Xxxxxx and SUPERVALU agree that the parties have entered into various
agreements granting Xxxxxx certain rights with regard to shares of SUPERVALU
stock, which will be resolved as follows.
x. Xxxxxx will be entitled to exercise any stock options that would
vest on or before October 20, 2001 pursuant to the terms of the option
agreements executed by Xxxxxx. Notwithstanding anything to the contrary herein,
the terms of those agreements will remain in full force and effect.
x. Xxxxxx will be entitled to receive 16,179 shares of restricted
stock from the FY'98 - FY'00 Long-Term Incentive Plan payment, on December 16,
2000 or within five business days of the end of the rescission period described
in paragraph 13 hereof, whichever date occurs later, subject to all the terms
and conditions of said plan.
5. In partial consideration for the promises and covenants contained in
paragraphs 10(a), (b) and (c) hereof, SUPERVALU agrees to make the following
payments to which Xxxxxx agrees that he is not otherwise entitled:
a. SUPERVALU will issue to Xxxxxx 18,555 shares of SUPERVALU stock
on March 1, 2001.
b. SUPERVALU will pay to Xxxxxx a cash amount equal to the Long-Term
Incentive Plan (LTIP) FY1999-FY2001, payout that Xxxxxx would have received had
he remained employed by SUPERVALU through the date on which the LTIP restricted
stock would be approved and issued in the normal course of SUPERVALU's
operation.
6. SUPERVALU shall provide Xxxxxx with the following additional benefits:
a. Executive-level outplacement services through a service to be
agreed upon by the parties, in an amount not to exceed $20,000;
b. Reimbursement in an amount up to $8,000 for fees incurred by
Xxxxxx for financial planning services during the period when he is receiving
payments under this Agreement; and
c. Payment for Xxxxxx'x physical examination at the Mayo Clinic
scheduled to occur on March 14 and 15, 2001.
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7. Except as otherwise expressly provided within this Agreement, Xxxxxx'x
rights to benefits under all SUPERVALU benefit plans shall be governed by the
terms of those plans.
8. All other items of compensation not mentioned in paragraphs 2 through
6 above have been resolved, and Xxxxxx shall have no further claim to any other
items of compensation or benefits.
9. Xxxxxx agrees that he is not entitled to all of the payments and
benefits described in paragraphs 2 through 6 as a result of his employment with
SUPERVALU, and that the payments and benefits are being provided as
consideration for his acceptance and execution of this Agreement.
10. As an essential inducement to SUPERVALU to enter into this Agreement,
and as consideration for the foregoing promises of SUPERVALU, Xxxxxx agrees as
follows:
x. Xxxxxx acknowledges that during the course of and by virtue of
his employment with SUPERVALU, he has had access to and gained knowledge of
highly confidential and proprietary information and trade secrets as defined by
SUPERVALU and UTSA. Xxxxxx further acknowledges that the misuse,
misappropriation or disclosure of this information could cause irreparable harm
to SUPERVALU, both during and after the term of Xxxxxx'x employment. Therefore,
Xxxxxx agrees that during his employment and at all times thereafter, he will
not disclose to, or use for the benefit of anyone outside of SUPERVALU, any
confidential or proprietary information or trade secret, except upon SUPERVALU's
written consent or as required by Xxxxxx'x duties with SUPERVALU.
x. Xxxxxx confirms and agrees that SUPERVALU will be substantially
harmed if Xxxxxx were to become affiliated with any business concern that
competes with SUPERVALU subsequent to his separation from employment. Therefore,
Xxxxxx agrees that for the period commencing upon his execution of this
Agreement and ending 12 months after his last receipt of any compensation
hereunder, Xxxxxx will not, within the continental United States, directly or
indirectly, (1) own, manage, operate, join, control be employed by or
participate in ownership, management, operation or control of, or be connected
in any manner with any business that (a) competes within a major market where
(i) SUPERVALU, as of the date of this Agreement owns retail supermarkets (Cub
Foods, Shop 'n Save, bigg's, Xxxxx'x, Shoppers Food Warehouse, Farm Fresh Foods,
Laneco, Hornbacher's, Randall's, Metro, Save-A-Lot), or (ii) where SUPERVALU, to
Xxxxxx'x knowledge as of the date of this Agreement, is engaged in plans to open
or purchase retail supermarket(s); (b) is a wholesale grocery company that
competes with SUPERVALU's wholesale distribution operations; or (2) become
involved in any manner with any current customer of SUPERVALU for the purpose of
acquiring, leasing, selling, or otherwise disposing of that customer's stores,
or supplying such customers with products supplied by SUPERVALU. Xxxxxx shall
retain the right to seek the written approval of SUPERVALU's Chief Executive
Officer waiving the
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requirements of this paragraph 10(b) with respect to any particular activity in
which Xxxxxx seeks to engage; which approval shall not be unreasonably withheld.
x. Xxxxxx agrees that for the period commencing upon his execution
of this Agreement and ending 24 months after his last receipt of any
compensation hereunder, he will not either directly, or in concert with others,
recruit, solicit or induce, or attempt to induce, any employee or employees of
SUPERVALU or any of its affiliates to terminate their employment and/or become
associated with another employer.
d. In the event that Xxxxxx should materially violate any of the
provisions of paragraphs 10 (a), (b), and/or (c), Xxxxxx agrees that SUPERVALU's
obligation to provide any further payments and/or benefits under paragraphs 2,
through 6 above shall terminate immediately upon any such violation, without
limiting the other remedies available to SUPERVALU. Xxxxxx further acknowledges
and agrees that any breach of the provisions of paragraphs 10(a), (b) and/or (c)
would cause SUPERVALU irreparable harm, the value of which is difficult or
impossible to determine, and that therefore, SUPERVALU may seek any additional
other remedy available to it under law or equity including but not limited to
seeking injunctive relief from any court of competent jurisdiction.
e. By this Agreement, Xxxxxx and SUPERVALU intend to settle any and
all claims that Xxxxxx has or may have against SUPERVALU arising from or related
to Xxxxxx'x employment with SUPERVALU and/or the cessation of Xxxxxx'x
employment with SUPERVALU. For the consideration expressed herein, Xxxxxx
hereby releases and discharges SUPERVALU, its subsidiary corporations and all of
their officers, employees, agents, assigns, insurers, representatives, counsel,
administrators, successors, shareholders, and/or directors from all liability
for damages and/or from legal claims of any kind, including but not limited to
any statutory, contract, quasi contract, or tort claims, whether known or
unknown, developed or undeveloped, and agrees not to institute any claim for
damages or otherwise, by charge or otherwise, nor authorize any other party,
governmental or otherwise, to institute any claim via administrative or legal
proceedings against SUPERVALU for any such claims including, but not limited to,
claims arising out of his employment or the termination of that employment
including but not limited to claims for wages, commissions, penalties, vacation
pay or other benefit, defamation or improper discharge (based on contract, at
common law or under any federal, state or local statute or ordinance prohibiting
discrimination in employment particularly discrimination based on race, sex,
national origin, age, color, religion, marital status, disability or sexual
orientation including the Age Discrimination in Employment Act) or attorney's
fees or other costs or expenses. Xxxxxx and SUPERVALU agree that, by signing
this Agreement, Xxxxxx does not waive any claims arising after the execution of
this Agreement.
11. Xxxxxx agrees to provide limited transition services to SUPERVALU as
reasonably requested so long as he continues to receive any payments of
compensation hereunder.
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12. Xxxxxx further agrees that he will be available upon reasonable notice
and will voluntarily participate in the defense or prosecution of any claims or
litigation that may be brought against or on behalf of SUPERVALU about which he
has information or knowledge. SUPERVALU agrees that it will indemnify Xxxxxx
with respect to such claims or litigation to the same extent that it is
permitted to indemnify its current officers.
13. Xxxxxx is hereby informed of his right to rescind and revoke this
Agreement by written notice to SUPERVALU within 15 calendar days following his
execution of this Agreement. To be effective, such written notice must either
be delivered by hand or sent by certified mail, return receipt requested,
addressed to Xx. Xxxxxx X. Xxxxxxxx, SUPERVALU INC., 00000 Xxxxxx Xxxx Xxxx,
Xxxx Xxxxxxx, Xxxxxxxxx 00000, delivered or post-marked within such 15-day
period. Xxxxxx understands that SUPERVALU will have no obligations under this
Agreement in the event such notice is timely delivered and any payments made as
of that date by SUPERVALU pursuant to paragraphs 2 through 6, herein, shall be
immediately repaid by Xxxxxx to SUPERVALU.
14. Xxxxxx acknowledges that he has been advised to consult with an
attorney prior to signing this Agreement and further acknowledges that he has
been advised that he has at least 21 days to consider whether to agree to waive
and release his rights under the Age Discrimination in Employment Act. In the
event that Xxxxxx executes this Agreement prior to the end of that 21-day
period, that act shall constitute his voluntary waiver of the rights described
within this Paragraph 14.
15. The parties further agree that the terms of this Agreement shall
remain confidential provided that SUPERVALU may disclose such terms as is
necessary to effectuate the terms of the Agreement and/or for the operation or
its business and that Xxxxxx may disclose such terms to his spouse, tax and
financial advisers, and attorney. The disclosing party shall advise the person
or entity to whom information is disclosed of the confidential nature of such
information.
16. Xxxxxx understands and agrees that effective December 2, 2000, he is
no longer authorized to incur any expenses or obligations or liabilities on
behalf of SUPERVALU, unless authorized in advance by SUPERVALU's Chief Executive
Officer or President and Chief Operating Officer.
17. Xxxxxx agrees that on or before December 2, 2000, he will return to
SUPERVALU any property of SUPERVALU in his possession or control.
18. Xxxxxx agrees that he will refrain from making any statements, whether
written or oral, which are materially disparaging of SUPERVALU, its directors,
officers, employees, agents, or representatives. Xxxxxx agrees that SUPERVALU's
obligation to provide any further payments and/or benefits under paragraphs 2
through 6 above shall terminate immediately upon any violation of this paragraph
18. SUPERVALU agrees that its officers and directors will refrain from making
any statements, whether written or oral, that are materially disparaging of
Xxxxxx.
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20. Xxxxxx agrees this Agreement shall not in any way be construed as an
admission by SUPERVALU that it has acted wrongfully with respect to Xxxxxx or
any other person, or that Xxxxxx has any legal claims whatsoever against
SUPERVALU. SUPERVALU specifically disclaims any liability to, or wrongful acts
against, Xxxxxx or any other person, on the part of itself, its directors, its
officers, its employees, its representatives or its agents.
21. SUPERVALU represents and warrants that to the knowledge of its
officers and directors, as of the date hereof, SUPERVALU has no claim against
Xxxxxx for any breach of his duties or responsibilities committed while employed
by SUPERVALU.
22. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof. Xxxxxx hereby affirms that his rights to
payments or benefits from SUPERVALU are specified exclusively and completely in
this Agreement. Any modification of, or addition to, this Agreement must be in
writing, signed by SUPERVALU and Xxxxxx.
23. This Agreement is personal to Xxxxxx and may not be assigned by Xxxxxx
without the written agreement of SUPERVALU. All payments provided herein to or
for the benefit of Xxxxxx and the maintenance of coverages as herein provided,
shall be made to his estate and for the benefit of his dependents, heirs and
beneficiaries in the event of his death prior to the receipt thereof.
24. This Agreement constitutes a contract enforceable against either party
and shall be construed and enforced in accordance with the laws of the State of
Minnesota. Nothing contained in this Agreement is intended to violate any
applicable law. If any part of this Agreement is construed to be in violation
of a state and/or federal law, then that part shall be null and void, but the
balance of the provisions of this Agreement shall remain in full force and
effect.
25. Xxxxxx hereby affirms and acknowledges that he has read the foregoing
Agreement and that he has hereby been advised to consult with an attorney prior
to signing this Agreement. Xxxxxx agrees that the provisions set forth in this
Agreement are written in language understandable to him and further affirms that
he understands the meaning of the terms of this Agreement and their effect.
Xxxxxx represents that he enters into this Agreement freely and voluntarily.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
signatures below.
- SIGNATURES ON THE FOLLOWING PAGE -
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Dated: 11/29/00 /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Dated: 11/17/00 SUPERVALU INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: Senior Vice President,
Human Resources
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