SEPARATION, WAIVER AND RELEASE AGREEMENT
This Separation, Waiver and Release Agreement is entered
into on the 31st day of January, 1996, by and between Xxxxxxx X.
Xxxxxxxx, hereinafter "Employee," and Kash n' Xxxxx Food Stores,
Inc., hereinafter "Employer."
WHEREAS, currently Employee is employed by Employer as
Senior Vice President, Administration, and Chief Financial
Officer;
WHEREAS, effective January 27, 1996, Employee's employment
ceased; and,
WHEREAS, the parties have discussed all matters pertaining
to the employment relationship between Employer and Employee
including, but not limited to, all rights, duties and obligations
arising out of that certain Senior Management Severance Pay
Agreement executed on February 9, 1994, and have reached the
agreement set forth herein.
NOW, therefore, for the mutual promises, covenants and
agreements contained herein as well as other good and valuable
consideration, the parties agree:
1. Employee's employment terminated effective January 27,
1996.
2. Employee, on behalf of himself, his heirs and assigns,
hereby releases and forever discharges the Employer,
its officers, employees, agents and assigns, from any
and all rights Employee may have arising out of the
employment relationship, including all rights, actions
or causes of actions, be they known or unknown, that
Employee now has or may have against Employer,
including, but not limited to, any claims arising under
federal, state or local law prohibiting employment
discrimination. By virtue of this release, Employee
hereby agrees not to file any administrative claim,
grievance, arbitration, complaint, or suit against
Employer for any reason, whatsoever, other than the
Employer's failure to abide by the terms and conditions
of this agreement.
3. Employer and Employee agree that the terms and
conditions of this agreement are privileged and
confidential and shall not be divulged to anyone who
does not have both a legitimate business interest in
its contents as well as a legitimate business-related
need to know of the information contained herein.
4. Employer agrees to pay the amounts set forth below:
(a) Beginning January 28, 1996, the Employee's current
base compensation ($3,461.54/wk) and his current
insurance benefits will continue until he obtains
full-time employment with another company, or for
52 weeks, whichever first occurs.
(b) The Employee will be eligible to participate in
the Employer's current bonus program (Incentive
Compensation Plan) for Senior Management for the
fiscal year ending in July of 1996; however, for
purposes of determining the Employee's bonus under
the Plan, his base compensation will be $90,000,
which is one-half of his current annual salary. In
other words, the salary paid pursuant to 3(a)
above will not be included in the Employee's base
compensation for bonus purposes. This provision
will not entitle the Employee to a bonus; he will
participate along with other senior management of
the Employer only if and when the Board of
Directors determines that bonuses are otherwise
payable in September of 1996.
5. Notwithstanding the provisions of Section 3.1 of the
Non-Qualified Stock Option Agreement dated as of March
8, 1995 between the Employee and the Employer, and
Section 6.7 of the 1995 Key Employee Stock Option Plan
(collectively, the "Option Agreements"), effective
immediately forty percent (40%) of the Employee's
outstanding options to purchase 45,696 shares of common
stock of the Employer pursuant to the Option Agreements
are exercisable. Pursuant to Section 6.6 of the Option
Agreement, Employer agrees (a) to permit Employee to
simultaneously exercise his exercisable stock options
and sell the shares of common stock thereby acquired
pursuant to a "cashless exercise" arrangement or
program with an investment firm that makes a market in
the Employer's common stock and (b) to cooperate with
the investment firm in establishing the "cashless
exercise" arrangement or program. Also, pursuant to
Sections 7.2 and 7.3 of the Option Agreement, Employer
agrees that Employee's stock options, to the extent
exercisable, will remain so for a ninety (90) day
period beginning on January 28, 1996.
6. In consideration of the above, Employer and Employee
agree to terminate that certain Senior Management
Severance Pay Agreement executed on February 9, 1994,
effective immediately.
7. Employee agrees to fulfill the following duties as a
material part of this agreement:
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(a) To draft a memorandum summarizing all active
company matters that Employee currently is
responsible for and to describe what action is
required to complete each one. This memorandum
shall be complete and in a form reasonably
acceptable to Employer and shall be submitted to
Xxx Xxxxxxx no later than the close of business on
January 24, 1996.
(b) To review the memorandum in subpart (a) with Xxx
Xxxxxxx satisfactorily answering any and all
questions by the close of business on January 25,
1996.
(c) To preserve and organize Employee's files and
department's files, and provide Employer with an
index to said files. Further, Employee shall
return to Employer all proprietary and
confidential information relating to Employer,
including any computer-generated documents,
gathered, compiled or created by Employee in the
course of his employment. Notwithstanding the
foregoing, the Employee may retain copies of the
Employer's current bank credit agreement,
indenture, and bond-type lease used in recent
sale/leaseback transactions by Employer; provided,
that any non-public documents shall remain
confidential. Employee shall fulfill his duties
under this subpart by the close of business on
January 25, 1996.
(d) For reasonable periods of time, at reasonable
times for Employee, and upon reasonable notice, to
provide Employer with such information as Employer
may reasonably request regarding the management of
matters that involve Employee's department or
current duties and responsibilities to Employer,
including, without limitation, preparing the
Employer's financial statements and reports to the
Securities and Exchange Commission for the fiscal
year ending in July of 1996. Every effort shall
be made by Employer to obtain such information via
telephone. Employee's responsibility to assist
Employer by providing information shall cease by
October 31, 1996.
(e) To be available for such discussion, depositions,
and court testimony as may be required in
connection with Employer's legal matters that
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involve Employee's department or areas of
responsibility.
(f) Employer shall reimburse Employee for all
reasonable expenses related to Employee's
fulfillment of subparts (a) through (e) of this
Section. If Employee is not receiving any payments
from Employer under paragraph 4(a) of this
Agreement at the time that Employee is requested
to fulfill his obligations under those subparts,
then Employer also will pay Employee a per diem
rate of $692 for each day or part thereof of
service rendered by Employee pursuant to
Employer's request. Employee's material failure
to comply with subparts (a) through (e), or any
one of them, shall be grounds for delaying any
payments required under paragraph 4 until such
time as Employee complies with said subpart or
parts. In such an event, the payment schedule in
paragraph 4 shall be extended by the length of
said delay.
8. Employee has carefully read and fully understands all
the provisions of this agreement and acknowledges that
he enters into it freely, and voluntarily, and states
that he has either been given the opportunity to
consult legal counsel regarding this agreement, or that
he has waived that right. Employee further asserts
that, in entering into this agreement, he has not
relied upon any representation or statement of Employer
other than those set forth herein.
9. The parties agree that, except for those portions
governed by federal law, Florida law governs this
agreement and that it may not be changed orally; it can
only be changed or modified by a written amendment
signed by both parties.
10. In the event either party must seek legal recourse to
enforce the terms and conditions of this agreement, the
prevailing party in said action shall be entitled to
court costs including, but not limited to, a reasonable
attorney's fee.
11. The payments made under paragraphs 4 and 7 (f) of this
agreement are made in lieu of any and all payments
otherwise owed by Employer to Employee, but this
agreement does not waive the rights, if any, that
Employee may have in connection with any qualified
retirement plan, accrued vacation pay, deferred
compensation plan, health spending account, or any
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other employee benefit otherwise due to Employee
according to written Employer policy.
12. All payments will be made to Xxxxxxx X. Xxxxxxxx on the
dates set forth herein by mail to the address given to
Employer by Employee, and Employer shall deduct any
applicable federal, state, or other taxes, deductions,
etc., as required by law.
13. Employee agrees that for a 1 year period beginning
January 27, 1996, Employee will not, directly,
indirectly or as an agent on behalf of or in
conjunction with any person, firm, partnership,
corporation or other entity, own, manage, control,
join, or participate in the ownership, management,
operation, or control of, or be financially interested
in or advise, lend money to, or be employed by or
provide consulting services to, or be connected in any
manner with (a) any supermarket, retail food store,
grocery store, liquor store, warehouse store or any
similar business located in market areas where the
Employer operates; or (b) any company, entity or
business with which Employer was in active negotiation
for the purchase of a supermarket, retail food store,
grocery store, liquor store or warehouse store as of
January 27, 1996, or with any other company that shall
acquire such supermarket, retail food store, grocery
store, liquor store or warehouse store. The Employee
acknowledges that the business of Employer is currently
conducted throughout the counties in Florida listed on
Exhibit A attached hereto and any county contiguous
thereto and that such counties constitute the present
market area of the Employer. Ownership of less than 1%
of the stock in a publicly held company shall not be
deemed a violation of this Section 13. Notwithstanding
anything in this paragraph to the contrary, Employee
may engage in the convenience store business, e.g., the
kind of business operated by Circle K and Southland,
(Seven/Eleven) within Employer's current market area.
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PROVISIONS TO COMPLY WITH THE OLDER WORKER
BENEFIT PROTECTION ACT
Employee hereby acknowledges the Employer has advised him of
the following:
14. The payment set forth herein is a payment to which the
Employee would not normally be entitled unless the
Employer agreed to make it.
15. By signing this release, Employee is giving up any and
all claims and rights that he may have against the
Employer, its subsidiaries, and their past, present and
future officers, directors, employees and agents, based
upon any act or event occurring prior to Employee
signing this release. Without limiting the foregoing,
Employee specifically releases Employer from any claim
arising out of his employment with the Employer
including the termination of his employment.
16. Employee hereby waives all claims and rights that he
may have based upon any acts or events related to his
employment with the Employer up to the date of signing
this agreement. Employee also agrees to waive his
right to seek future employment with the Employer, its
parent and subsidiaries, without limiting the
foregoing. Employee specifically releases the Employer
from any claim for discrimination under Florida or
federal law including the Federal Age Discrimination in
Employment Act, Title VII of the Civil Rights Act, and
the Americans with Disabilities Act.
17. The Employer has advised Employee to consult with any
attorney and any other advisors of his choice prior to
signing this release.
18. Employee will have twenty-one (21) days from the date
Employee receives this release to consider and sign it.
If Employee does not return this signed release to the
Employer on or before the end of twenty-one (21) days,
the Employer will consider this a refusal to sign and
Employee will not be given the settlement package. If
Employee does sign and return the release, it will not
be effective for a period of seven (7) days (unless
otherwise waived), during which time Employee can
change his mind and revoke it. If Employee chooses to
revoke this release, he must notify the Employer, in
writing, no later than seven (7) days after he has
signed it.
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19. Employee is signing this release freely, and
voluntarily, and understands what he is signing.
Signed, sealed and delivered this ___ day of January, 1996,
in the County of Hillsborough of the State of Florida.
KASH N' XXXXX FOOD STORES, INC.
WITNESSES:
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------- ---------------------------
Xxxxxx X. Xxxxxxx, C.E.O.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
WITNESSES:
/s/ R. Xxxxx Xxxxxxxxxx /s/ X.X. Xxxxxxxx
-------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxx Xxxxxx 00000 Xxxxx Xxxx Xxxxx
-------------------------- Xxxx, Xxxxxxx 00000
S.S.N. ###-##-####
0
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXXXXXX
The foregoing instrument was acknowledged before me this
31st day of January, 1996, by Xxxxxx X. Xxxxxxx, as C.E.O. of
Kash n' Xxxxx Food Stores, Inc., a Delaware corporation, on
behalf of the corporation. He is personally known to me.
/s/ Xxxxxx X. Xxxx (sign name)
-------------------------------
Xxxxxx X. Xxxx (print name)
NOTARY PUBLIC, State of Florida
My Commission Expires: Oct. 22, 1996
My Commission No: XX000000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXXXXXX
The foregoing instrument was acknowledged before me this
31st day of January, 1996, by Xxxxxxx X. Xxxxxxxx. He is
personally known to me.
/s/ Xxxxxx X. Xxxx (sign name)
-------------------------------
Xxxxxx X. Xxxx (print name)
NOTARY PUBLIC, State of Florida
My Commission Expires: Oct. 22, 1996
My Commission No: CC230341
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