1
EXHIBIT (10.14)
RETIREMENT AGREEMENT AND GENERAL RELEASE
----------------------------------------
This Retirement Agreement and General Release (the "Agreement") dated
March 19, 1999, between Uni-Marts, Inc. (the "Company") and J. Xxxx Xxxxxxxx
(the "Executive").
WHEREAS, the Executive has been employed as an officer of the Company
and is currently serving as Executive Vice President and Chief Financial
Officer.
WHEREAS, the Company and the Executive mutually desire to provide for
an orderly transfer of the Executive's duties and responsibilities, and for his
ultimate retirement from the Company.
WHEREAS, the parties wish to settle all their mutual rights and
obligations arising from, or related to, the Executive's employment with the
Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive,
intending to be legally bound, agree as follows:
Section 1. Retirement and Retirement Payment.
(a) The Executive agrees that he will terminate his employment
with and retire from the Company on February 29, 2000 (the "Retirement Date").
Subject to the last sentence of this Section 1 and Section 6 below, the Company
agrees to pay the Executive his regular salary through February 29, 2000.
Executive will resign as Executive Vice President and Chief Financial Officer
and as a member of the Board of Directors as of June 30, 1999. From June 30,
1999, until the "Retirement Date," the Executive shall have such duties as
assigned to him by the CEO, including but not limited to providing assistance on
financial issues, investor issues, orientation of a new CFO and performance of
special projects. Except as provided below,
2
such payment shall be in lieu, and in complete discharge, of all obligations
owed by the Company to Executive, except (i) for any claim to which the
Executive is entitled to indemnification from the Company for any acts or
omissions in his capacity as an officer of the Company (except for criminal
wrongdoing or acts outside the scope of his employment) and (ii) as set forth
herein. Nothing herein shall affect Executive's rights with respect to his
interests in any and all retirement and welfare benefit plans maintained by the
Company, including the Company's 401(k) Plan and deferred compensation plan. The
Company may withhold from the foregoing payment and pay over to the applicable
tax authorities all amounts required to be withheld in accordance with
applicable federal, state and local tax withholding laws.
Section 2. Other Payments and Benefits.
(a) The Company agrees to continue to allow Executive to
retain and utilize the automobile provided to him by the Company until the
Retirement Date at which time Executive shall deliver such automobile to the
Company or to such other location as directed by the Company. In accordance with
existing policy and practice, the Company shall reimburse Executive for any and
all reasonable costs and expenses associated with the operation of the
automobile, including, but not limited to, fuel, repairs and insurance.
(b) As of June 30, 1999, Executive will cease to be eligible
to participate in Uni-Marts' group long-term disability insurance plan, 401(k)
plan or group life insurance plan. Regarding long-term disability insurance, the
Company will purchase an individual contract to provide the Executive with
similar long term disability benefits for the period July 1, 1999 through the
Retirement Date.
(c) Executive will be permitted to continue to participate in
the Company's
-2-
3
deferred compensation plan through December 31, 1999. The Company will continue
to match the Executive's contribution on a 50% basis up to the maximum of
$10,000 of his salary deferral. Upon the Retirement Date, the Executive will be
entitled to receive all monies due him from the plan in accordance with its
terms.
(d) The Company agrees to keep in effect the "split dollar
life insurance" agreement between the Company and the Executive. The Executive
is authorized to cause the cash surrender value to be used to convert the policy
into a paid-up life insurance policy. Upon the Executive's death, the Company
shall receive the full amount of all premiums it paid to carry the policy during
the Executive's employment by the Company from the proceeds of the death benefit
from the insurance necessary or appropriate to effect this agreement.
(e) The Executive shall be allowed to exercise stock options
which have vested until the Retirement Date of February 29, 2000, but only to
the extent that those stock options have vested on or prior to the Retirement
Date.
(f) The parties agree that the Change of Control Agreement
between the Company and the Executive will remain in effect until January 31,
2000, after which such Agreement will terminate and the Executive shall not be
entitled to any compensation and benefits pursuant to such Agreement unless
already due pursuant to the terms of the Agreement.
Section 3. No Further Obligations of the Company; Releases. Except as
provided in Sections 1 and 2 hereof, the Company shall have no further
obligations whatsoever to the Executive and the Executive hereby releases the
Company as set forth in Exhibit A hereto and the Company hereby releases the
Executive as set forth in Exhibit B hereto.
Section 4. Conditions of Benefits. The Company shall provide to the
Executive the
-3-
4
rights, payments and benefits set forth in Sections 1 and 2 hereof as
consideration for and contingent upon (i) the Executive's execution,
non-revocation and honoring of a release of claims and covenant not to xxx in
favor of the Company in the form attached hereto as Exhibit "A" and (ii) the
Executive's continued compliance with the provisions of Sections 5, 6 and 7 and
8 hereof. If the Executive is in breach of any of such Sections, the Company may
terminate its obligations under Sections 1 and 2 above. Moreover, the Executive
agrees to execute, not revoke and honor a General Release Agreement, similar to
Exhibit A, on his Retirement Date.
Section 5. Non-Disclosure. The Executive hereby agrees that he shall
not, during or after his employment, disclose or use for any purpose
confidential information or proprietary data of the Company (or any of its
subsidiaries), except as required by applicable law or legal process; provided,
however, that confidential information shall not include any information known
generally to the public or ascertainable from public or published sources (other
than as a result of unauthorized disclosure by the Executive) or any information
of a type not otherwise considered confidential by persons engaged in the same
business or a business similar to that conducted by the Company. The Executive
acknowledges and agrees that the Company will suffer irreparable injury in the
event of any material breach of this Section 5, that damages resulting from such
injury will be incapable of being precisely measured, and that the Company will
not have an adequate remedy at law to redress the harm which such violation
shall cause. Therefore, the Executive agrees that the Company shall have the
rights and remedies of specific performance and injunctive relief, in addition
to any other rights or remedies that may be available at law or in equity or
under this Agreement, in respect of any failure, or threatened failure, on the
part of the Executive to comply with the provisions of this Section 5,
including,
-4-
5
but not limited to, temporary restraining orders and temporary injunctions to
restrain any violation or threatened violation of this Section 5 by the
Executive.
Section 6. Return of Company Property. The Executive acknowledges that
all records, files, documents and equipment, all information relating to
employees, Company members and suppliers, and any other materials that in any
way relate to the business of the Company which the Executive has accumulated
during his employment by the Company, other than information and documents
publicly known or disseminated, are the property of the Company, including all
duplicates and copies of any of the foregoing, and that all such property shall
be returned to the sole possession of the Company on or before the Retirement
Date.
Section 7. Business Goodwill. At all times following date hereof, the
Executive shall make no comments or take any other actions, direct or indirect,
that will reflect adversely on the Company or its officers and directors in such
capacity or adversely affect their business reputation or goodwill. At all times
following the date hereof, the Board of Directors will take reasonable efforts
to instruct its members and each officer of the Company not to make comments or
take any other actions, direct or indirect, that will reflect adversely on the
Executive or adversely affect his business reputation or goodwill. The Executive
hereby agrees that he shall cooperate with the Company and its agents and
representatives with respect to reasonable requests for information with respect
to the Company and its financial statements that the Company and its agents and
representatives request and in taking such other reasonable action with respect
to the Company and its financial statements as the Company and its agents and
representatives may request. The Executive further agrees to assist the Company
at any time in the future, with respect to all reasonable requests to testify in
connection with any legal
-5-
6
proceeding or matter relating to the Company, including but not limited to any
federal, state or local audit, proceeding or investigation, other than
proceedings relating to the enforcement of this Retirement Agreement or other
proceedings in which the Executive is a named party whose interests are adverse
to those of the Company.
Section 8. Miscellaneous.
(a) Complete Agreement. This Retirement Agreement constitutes
the entire agreement between the parties and cancels and supersedes, with the
exception of the Indemnification Agreement dated February 18, 1988, all other
agreements and understandings, whether written or oral, between the parties
which may have related to the subject matter contained in this Retirement
Agreement.
(b) Modification; Agreement; Waiver. No modification,
amendment or waiver of any provisions of this Retirement Agreement shall be
effective unless approved in writing by both parties. The failure at any time to
enforce any of the provisions of this Retirement Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of
either party thereafter to enforce each and every provision hereof in accordance
with its terms.
(c) Governing Law; Jurisdiction.
This Retirement Agreement and performance under it, and
all proceedings that may ensue from its breach, shall be construed in accordance
with and under the laws of the Commonwealth of Pennsylvania.
(d) Severability. Whenever possible, each provision of this
Retirement Agreement shall be interpreted in such manner as to be effective and
valid under applicable law,
-6-
7
but if any provision of this Retirement Agreement shall be held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Retirement Agreement;
provided, however, that the invalidity of the release contained in Exhibit A,
either executed on the date hereof or on the Retirement Date, shall nullify the
Company's obligation to provide, and the Company shall be entitled to a return
of, any and all payments made pursuant to this Retirement Agreement.
(e) Assignment. The rights and obligations of the parties
under this Retirement Agreement shall be binding upon and inure to the benefit
of their respective successors, assigns, executors, administrators and heirs,
provided, however, that neither the Company nor the Executive may assign any
duties under this Retirement Agreement without the prior written consent of the
other.
(f) Notices. All notices and other communications under this
Retirement Agreement shall be in writing and shall be given in person or by
telegraph, telefax or first class mail, certified or registered with return
receipt requested, and shall be deemed to have been duly given when delivered
personally or three days after mailing or one day after transmission of a
telegram or telefax, as the case may be, to the respective persons named below:
If to the Company: Uni-Marts, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
Attn: Chief Executive Officer
-7-
8
If to the Executive: J. Xxxx Xxxxxxxx
000 Xxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
(g) Advice of Counsel. The Executive acknowledges that he has
been advised by the Company to consult with his own legal counsel with respect
to the subject matter and the terms of this Agreement, that he has had the
opportunity to do so and that this Agreement is the product of negotiations
between the Company and the Executive.
(h) Confidentiality. The Executive and the Company agree to
keep confidential the existence of this Agreement and the terms unless otherwise
required by law, rule or regulation, Executive hereby recognizes that this
Agreement may be required to be filed as an exhibit to a periodic report filed
by the Company under federal securities laws.
IN WITNESS WHEREOF, the parties have executed this Retirement Agreement
as of the day and year first above written.
UNI-MARTS, INC.
/s/ Xxxxx X. Xxxxxxxx
---------------------------
By: Xxxxx X. Xxxxxxxx
Chief Executive Officer
/s/ J. Xxxx Xxxxxxxx
---------------------------
By: J. Xxxx Xxxxxxxx
Executive
-8-
9
EXHIBIT "A"
-----------
GENERAL RELEASE AGREEMENT
-------------------------
I, J. Xxxx Xxxxxxxx, for myself, my heirs, executors, administrators
and assigns, if any, for and in consideration of the rights, payments and
benefits under the Retirement Agreement and General Release Agreement between
the undersigned and Uni-Marts, Inc. ("Uni-Marts") dated March 19, 1999 (the
"Agreement") hereby agrees as follows:
1. I waive, release and forever discharge Uni-Marts, and its
subsidiaries and affiliates, and each of their directors, officers and employees
and each of their successors and assigns (hereinafter the "Released Parties"),
of and from any and all past or present causes of action, suits, agreements or
other claims which I have against the Released Parties upon or by reason of any
matter, cause or thing whatsoever, including, without limitation, claims for any
alleged violation of the Civil Rights Act of 1964 and 1991, the Equal Pay Act of
1963, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act
of 1973, the Older Workers Benefit Protection Act of 1990, the Americans with
Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the
Pennsylvania Human Relations Act and any other federal or state law, regulation
or ordinance, or public policy, contract or tort law having any bearing
whatsoever on the terms and conditions of employment or Retirement of
employment, and I promise not to file a lawsuit to assert any such claims;
provided, however, that this release shall not apply to A) the payments and
benefits set forth in the Agreement, B) any benefit payable under the terms of
any employment benefit plan maintained by the Released Parties, except that it
will apply to any Retirement benefits that otherwise might be payable outside of
the Agreement, or C) any claim to which I am entitled to indemnification from
Uni-Marts for any
10
acts or omissions in my capacity as an officer of Uni-Marts, except for criminal
wrongdoing and acts outside the scope of my employment.
2. I acknowledge that I have carefully read and fully understand the
provisions of this General Release Agreement, that I have had twenty-one (21)
days from the date I received a copy of this General Release Agreement in which
to consider entering into this General Release Agreement that if I sign and
return this General Release Agreement before the end of that twenty-one (21) day
period then I will have voluntarily waived my right to consider the Agreement
for the full twenty-one (21) days and that I have executed this General Release
Agreement voluntarily and with full knowledge of its significance, meaning and
binding effect. I also acknowledge that Uni-Marts has advised me in writing to
consult with an attorney of my own choosing with regard to entering into this
General Release Agreement and that I have had an opportunity to do so.
3. I acknowledge that I may revoke this General Release Agreement
within seven (7) days of my execution of this document by submitting a written
notice of my revocation to the Secretary of Uni-Marts' offices in State College,
Pennsylvania. I also understand that this General Release Agreement shall not
become effective or enforceable until the expiration of that seven (7) day
period.
4. I acknowledge that in my decision to enter into this General
Release Agreement, I have not relied on any representations, promises or
agreements of any kind, including oral statements by representatives of
Uni-Marts, except as set forth in this General Release
11
Agreement, the General Release Agreement executed by Uni-Marts or in the
Agreement.
IN WITNESS WHEREOF, and with the intention of being legally bound
hereby, I have executed this General Release Agreement on March 19, 1999.
/s/ J. Xxxx Xxxxxxxx
-------------------------
J. Xxxx Xxxxxxxx
12
EXHIBIT B
---------
GENERAL RELEASE AGREEMENT
-------------------------
UNI-MARTS, INC., for itself, and its subsidiaries and affiliates, and
each of their directors, and officers and each of their successors and assigns,
if any, ("Uni-Marts"), for and in consideration of the rights under the
Agreement between the undersigned and J. Xxxx Xxxxxxxx dated March 19, 1999 (the
"Agreement") hereby agrees as follows:
1. Uni-Marts waives, releases and forever discharges Xxxxxxxx and
his heirs, executors, administrators and assigns (hereinafter the "Released
Parties"), of and from any and all past or present causes of action, suits,
agreements or other claims which it has, ever had or hereinafter may arise
against the Released Parties upon or by reason of any matter, cause or thing
whatsoever, including, without limitation, any federal or state law, regulation
or ordinance, or public policy, contract or tort law whether having any bearing
whatsoever on Xxxxxxxx'x employment and it promises not to file a lawsuit to
assert any such claims; provided, however, that this release shall not apply to
the obligations set forth in the Agreement or for any act involving criminal
wrongdoing or outside the scope of his employment.
2. Uni-Marts acknowledges that it has carefully read and fully
understands the provisions of this General Release Agreement, that it has had
sufficient time in which to consider entering into this General Release
Agreement and that it has executed this General Release Agreement voluntarily
and with full knowledge of its significance, meaning and binding effect.
Uni-Marts also acknowledges that it has consulted with an attorney of its own
choosing with regard to entering into this General Release Agreement.
3. Uni-Marts acknowledges that in its decision to enter into this
General Release Agreement, it has not relied on any representations, promises or
agreements of any kind,
13
including oral statements by Xxxxxxxx or his representatives, except as set
forth in this General Release Agreement, in the Agreement or in the General
Release Agreement executed by Xxxxxxxx.
IN WITNESS WHEREOF, and with the intention of being legally bound
hereby, an authorized representative of Uni-Marts has executed this General
Release Agreement on March 19, 1999.
UNI-MARTS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx,
Chief Executive Officer
