EMPLOYMENT TERMINATION AGREEMENT
AGREEMENT, dated as of June 17, 1996, between BIG V SUPERMARKETS,
INC., a New York corporation (the "Company"), BIG V HOLDING CORP., a Delaware
corporation ("Holding"), and Xxxxxxxxx X. X. Xxxxxx, Xx. ("Xxxxxx").
PRELIMINARY STATEMENT
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Madera served as Senior Vice President/Corporate Development, General
Counsel and Secretary and a Director of Holding and the Company through December
1995 pursuant to an Employment Agreement dated December 28, 1990 (the
"Employment Agreement") and, thereafter, was employed by Holding and the Company
on an "at-will" basis. Madera was terminated without Cause as an employee of the
Company and Holding effective April 3, 1996.
Madera owns 32,593.20 shares of Holding's Common Stock (the "Madera
Shares"). Madera also has vested options to acquire 380 shares of the Company's
Common Stock (the "Vested Options"), and unvested options to acquire 7,229
shares of Common Stock (the "Unvested Options"), all of which were granted to
him pursuant to the Big V Holding Corp. 1990 Time Accelerated Restricted Stock
Option Plan.
In order to settle any and all claims between Madera, the Company,
Holding, and their directors, officers and employees for all matters relating to
or arising out of such employment and such termination, and to provide for the
Madera Shares and the Vested options and the Unvested Options, the parties
mutually agree to the terms and conditions expressly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. Resignations. Madera resigns as Senior Vice President/Corporate
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Development, General Counsel and Secretary, as a Director of Holding and the
Company, and as a director or officer of any subsidiary of Holding or the
Company, effective April 3, 1996.
2. Monthly Severance Payments. The Company shall pay Madera six (6)
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consecutive monthly payments through October 31, 1996" in the amount of
$14,333.33 each. The amount of these severance payments to Madera shall not be
reduced by any compensation earned by Madera from any entity or person. The
monthly payments for May and June 1996 shall be made to Madera eight days after
the execution and delivery by him of this Agreement and the Release. The monthly
payments for July 1996 through October 1996 shall be made in semi-monthly
installments in arrears and subject to withholding and other applicable taxes.
Madera waives any rights to receive any bonus from Holding or the Company for
the fiscal year ended December 31, 1995 or any other periods.
3. Weeks of Accrued Vacation. The Company has paid Madera for four
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weeks of accrued vacation time, less the number of vacation days Madera took
during 1996.
4. Health and Life Insurance. The Company shall continue to provide
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Madera group health, dental and vision insurance coverage through the earlier of
October 31, 1996 and the date on which Madera is eligible for such insurance
benefits by reason of being employed by another employer. The Company shall
maintain the life insurance policy currently held by the Company on Madera's
life (the "Policy") through the earlier of October 31, 1996 and the date Madera
is eligible for such insurance by reason of being employed by another employer.
On and after November 1, 1996, Madera, at his expense, shall be entitled to
elect to continue his coverage under the Company's group medical plans in
accordance with his rights under the
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Consolidated Omnibus Budget Reconciliation Act of 1985. At Madera's request made
prior to November 1, 1996 and to the extent permitted, the Company shall
transfer to Madera the Policy and upon such transfer Madera shall be responsible
for the payment of all premiums and other charges.
5. Automobile. The Company shall pay to Madera $5,000 in
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consideration of the assumption by him of the lease of the automobile which the
Company currently provides him for his use. Madera shall be responsible for all
amounts due under the lease and all other payments with respect to the
automobile. Such payment shall be made to Madera upon the Company's receipt of
documentation reasonably satisfactory to it evidencing Madera's assumption of
the lease. In the event Madera does not elect to assume the lease, he shall
promptly return the automobile to the Company.
6. Additional Payment. In lieu of the Company providing Madera with
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the services of an executive outplacement firm, the Company shall pay to Madera
$22,000, subject to withholding and other applicable taxes, eight days after the
execution of this Agreement and Release.
7. Continued Ownership of Holding Stock; Outstanding Loan. The
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parties acknowledge that the Madera Shares shall continue to be subject to the
Amended and Restated Shareholders' Agreement, dated as of December 17, 1993,
among Holding, Madera and other shareholders of Holding (the "Shareholders'
Agreement"), except that Madera waives any rights he may have to exercise the
"Put Option" (other than with respect to the 6,000 shares referred to in the
next sentence) with respect to the Madera Shares and Holding waives any rights
it may have to exercise the "Call Option" with respect to the Madera Shares. The
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Company acknowledges that Madera has exercised the Put Option with respect to
6,000 shares and shall pay to Madera $210,000 in respect thereto eight days
after the execution of this Agreement and Release. The $100,000 promissory note
issued to the Company by Madera and interest due thereon, if any (the "Madera
Note"), will remain outstanding and will not be required to be paid at this
time.
8. Vested Options and Unvested Options. (a) The Company waives its
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right to exercise its "Call Option" pursuant to Section 2.5 of the Shareholders'
Agreement to purchase from Madera the Vested Options and thus such Vested
Options shall remain outstanding, subject to the terms thereof. Madera waives
any rights he might otherwise have to exercise the "Put Option" with respect to
the Vested Options.
(b) The Unvested Options and all of Madera's rights with respect
thereto shall be deemed terminated upon the execution of this Agreement.
9. Non-compete Provision; Confidential Information. Madera agrees to
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comply with the provisions contained in Sections 4, 5 and 6 of the Employment
and Non-Competition Agreement, dated as of December 28, 1990, by and among
Madera, Holding and the Company (the "Employment Agreement") through December
31, 1996.
10. Mutual Release. In partial consideration for the Company's and
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Holding's obligations to Madera hereunder, and Madera's obligations to the
Company hereunder, the parties hereto shall execute and deliver the release set
forth in Exhibit A to this Agreement.
11. Mutual Non-Disparagement; References. Madera agrees that he will
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not disparage in any manner Holding, the Company or their respective directors,
officers,
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stockholders, employees, representatives and attorneys, successors,
subsidiaries, related corporations, and any person or entity acting for or on
behalf of Holding or the Company. Each of Holding, the Company and their
respective officers and directors agrees that it or he will not, and the Company
will use best efforts to cause its employees to not, disparage in any manner
Madera or any person or entity acting for or on behalf of Madera. Concurrently
with the execution of this Agreement, the Company will deliver to Madera a
signed letter of reference in the form of Exhibit B hereto.
12. Miscellaneous.
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(a) Payments in cash made to Madera pursuant to Sections 2, 3 and 6
of this Agreement shall be subject to withholding and other applicable taxes and
all other payments shall not be subject to withholding and other applicable
taxes.
(b) This Agreement may not be amended, modified, terminated or
discharged except by a writing signed by the party against whom enforcement of
such amendment, modification, termination or discharge is sought.
(c) Any failure to exercise or delay in exercising, on the part of
Madera, the Company or Holding, any right, power or privilege under this
Agreement shall not operate as a waiver thereof; and any exercise or partial
exercise of any right, power or privilege hereunder shall not preclude any other
right, power or privilege.
(d) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, administrators,
executors, successors and assigns.
(e) This Agreement is made under, and shall be governed by and
construed in accordance with, the laws of the State of New York.
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(f) This Agreement, the Shareholders' Agreement and the release
provided for in Section 10 herein, constitute the entire agreement of the
parties hereto regarding the subject matters contained herein and therein and
shall supersede in all respects any provision of the Employment Agreement and
the letter dated March 21, 1995 from Xxxxx X. Xxxxxxxxx to Xxxxxx which
otherwise would have governed the rights and obligations of the Company, Holding
and Madera upon the termination of Madera's employment, except that Sections 4,
5 and 6 of the Employment Agreement shall continue in effect as proYided in
Section 9 hereof.
(g) No provision of this Agreement that is deemed unenforceable shall
in any way invalidate any other provision hereof, each of which shall remain in
full force and effect.
(h) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
(i) The captions used herein are inserted for reference purposes only
and shall not affect the interpretation or meaning of the Agreement.
(j) Madera acknowledges that he may have up to twenty-one days to
review and sign this Agreement and the attached Release and that he has seven
(7) days following his execution and delivery of this Agreement and the Release
to revoke them and neither this Agreement nor the Release shall become effective
and enforceable until the revocation period has expired. If Madera determines to
revoke this Agreement and the Release, he must notify the Company in writing by
5:00 p.m. on the 7th calendar day after he signs this Agreement
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and the Release. If Madera revokes this Agreement or the Release, he shall
forfeit all the rights and benefits provided to him hereunder.
(k) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
***
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
BIG V SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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BIG V HOLDING CORP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxxxxxx X.X. Xxxxxx, Xx.
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Xxxxxxxxx X.X. Xxxxxx, Xx.
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EXHIBIT A
RELEASE
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Pursuant to the terms of the Agreement (the "Agreement"), dated as of
June 17, 1996, between Big V Supermarkets, Inc. (the "Company"), Big V Holding
Corp. ("Holding") and the undersigned, and in consideration of the payments made
to me and other benefits to be received by me pursuant thereto, I, Xxxxxxxxx
X.X. Xxxxxx, Xx., being of lawful age, do hereby release and forever discharge
the Company and Holding, and their respective officers, shareholders,
subsidiaries, agents, and employees, from any and all actions, causes of action,
claims, or demands for general, special or punitive damages or for any other
legal or equitable relief, attorneys' fees, expenses, or other payments, which
in any way relate to or arise out of my employment with the Company and Holding,
the termination of such employment and the termination of my unvested options to
acquire shares of Holding Common Stock, which I may now or hereafter have under
any federal, state or local law, regulation or order, including without
limitation, under the Age Discrimination in Employment Act, as amended. Nothing
herein shall act as a waiver or act as a bar to any action to enforce the terms
of the Agreement and the Shareholders' Agreement (as defined therein).
I acknowledge that I have consulted an attorney before signing the
Agreement or this release.
I further state that they have carefully read the Agreement and this
release, that I know the contents of such documents, and that they have executed
the same as my own free act.
WITNESS my hand as of the 17th day of June, 1996.
/s/ Xxxxxxxxx X.X. Xxxxxx Xx.
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Xxxxxxxxx X.X. Xxxxxx Xx.
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RELEASE
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Pursuant to the terms of the Agreement (the "Agreement"), dated as of
June 17, 1996, between Big V Supermarkets, Inc. (the "Company"), Big V Holding
Corp. ("Holding") and Xxxxxxxxx X.X. Xxxxxx, Xx. ("Madera"), and in
consideration of the covenants made by Madera pursuant to the Agreement, each of
the Company and Holding do hereby release and forever discharge Madera from any
and all actions, causes of action, claims, or demands for general, special or
punitive damages or for any other legal or equitable relief, attorneys' fees,
expenses, or other payments, which in any way relate to or arise out of his
employment with the Company and Holding and the termination of such employment
which either the Company or Holding may now or hereafter have under any federal,
state or local law, regulation or order. Nothing herein shall act as a waiver or
act as a bar to any action to enforce the terms of the Agreement, the
Shareholders' Agreement or the Madera Note (each as defined therein) or any
action arising from the willful or intentional misconduct of Madera while
employed by either the Company or Holding.
The undersigned acknowledge that they have consulted all attorney
before signing the Agreement and this release.
The undersigned further state that they have carefully read the Agreement and
this release, that I know the contents of such documents, and that they have
executed the same as my own free act.
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WITNESS my hand as of the 17th day of June, 1996.
BIG V SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title:
BIG V HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title:
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EXHIBIT B
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June 12, 1996
Dear Sir or Ms.
This letter is to recommend [ full name ] for a position with your
firm and to acknowledge his contribution as a Senior Executive with the company.
For a decade, [ 1st name ] reported directly to me and was a valued
advisor as both a Senior Vice President and Director of the Corporation. In this
capacity, he played an important role in the success of Big V.
[ 1st name ] resigned in good standing when his position was
restructured and consolidated. We wish him well in his future career endeavors.
Very Truly Yours,
Xxxxx Xxxxxxxxx
Chairman of the Board
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