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EXHIBIT 10.38
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT to an Employment Agreement by and between BRUNO'S, INC., an
Alabama corporation (the "Company"), and _______________ ("Executive") dated
________________ and amended January 31, 1998 (the "Employment Agreement"), made
and effective this 22nd day of July 1998, by and between the Company and the
Executive.
1. Section 2 of the Employment Agreement is amended to read as follows:
2. Term of Employment. Executive's term of employment under
this Agreement commenced on _______________ and, subject to
the terms hereof, shall terminate on January 31, 2000;
provided, however, that Executive's term of employment shall
be automatically renewed for a two-year term on February 1,
2000 and on each successive second anniversary thereof (the
"Term"), unless the Company has notified the Executive in
writing within the 90 day period prior to the expiration of
the then Term that such Term shall not be so renewed;
provided, further, however, that any termination of employment
by Executive (other than for death or Permanent Disability)
may only be made upon 60 days prior written notice to the
Company.
2. Section 6 of the Employment Agreement is amended to read as follows:
6. Termination of Employment.
3. Subsection (a) of Section 6.1 of the Employment Agreement is amended
to read as follows:
6.1 Termination Not for Cause or for Good Reason. (a) Except
as provided in Section 6.2 hereof, if Executive's employment
is terminated (i) by the Company other than for Cause (as
defined in this Section 6.1) or (ii) by Executive for Good
Reason (as defined in this Section 6.1), Executive shall
receive a severance payment equal to the remaining Base Salary
owed by Company to Executive for the balance of the then Term
plus twelve month's additional Base Salary plus Target Bonus
under the Company's Corporate Management Incentive Plan, as in
effect immediately prior to the event giving rise to such
termination, payable in accordance with the ordinary payroll
practices of the Company,
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but no less frequently than semi-monthly following such
termination of employment. In addition, the Company shall pay
to Executive any earned but unpaid bonus of Executive with
respect to the year preceding his or her termination, and the
Company shall provide continued coverage on the same basis as
in effect from time to time for senior executives generally
for twelve months under any employee medical and life
insurance plans which the Company makes available to its
senior executives. Any period of continued coverage under the
Company's medical plans shall not be credited against any
required period of coverage for purposes of Part 6, Subtitle
B, Title I of the Employment Retirement Income Security Act of
1974, as amended.
4. Section 8 of the Employment Agreement is amended to read as follows:
8. Mitigation of Damages. Executive shall use his or her
reasonable best efforts to obtain comparable employment to
mitigate damages or the amount of any payment provided for
under this Agreement. Any such damages or the amount of any
payment provided for under this Agreement shall not be subject
to offset or any other reduction for reason of Executive's
obtaining other employment, whether from self-employment, as a
common-law employee or otherwise, except that base salary paid
to Executive by a subsequent employer in the last six months
of the severance period shall be used to offset the unpaid
portion of the severance payment equal to the remaining Base
Salary owed by Company to Executive for the balance of the
then Term plus twelve month's additional Base Salary plus
Target Bonus as described in Section 6.1 (a).
BRUNO'S, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Executive Officer
EXECUTIVE
By:
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