AGREEMENT FOR TERMINATION
OF EMPLOYMENT
Agreement by and between Delchamps, Inc., an Alabama corporation
(the "Company"), and Xxxxx X. Xxxxxx ("Xxxxxx"), dated as of September
19, 1997, with reference to the following recitals:
Recitals
1. Xxxxxx and the Company entered into an employment agreement
dated as of January 1, 1997, pursuant to which Xxxxxx agreed to serve
as the Chief Executive Officer of the Company and Chairman of the
Company's Board of Directors (the "Xxxxxx Employment Agreement").
2. Xxxxxx and the Company entered into an agreement dated as of
December 13, 1995 pursuant to which, among other things, the Company
agreed to make certain payments and provide certain benefits to Xxxxxx
in the event of a Change of Control (as defined therein) (the "Xxxxxx
Change of Control Agreement").
3. On or about September 15, 1997, a Change of Control occurred
when Delta Acquisition Corporation, an Alabama corporation and wholly-
owned subsidiary of Jitney-Jungle Stores of America, Inc., acquired a
substantial percentage of the Company's outstanding shares of common
stock via a tender offer.
4. The Xxxxxx Employment Agreement terminated by its terms upon
the Change of Control.
5. Xxxxxx and the Company believe it is in their mutual best
interests to enter into the following agreement with respect to the
termination of Xxxxxx'x employment by the Company.
NOW, THEREFORE, in consideration of the recitals and the
respective covenants and agreements herein contained, and intending to
be legally bound hereby, the parties agree as follows:
1. Termination of Xxxxxx'x Employment. Effective as of 5:00
p.m., Friday, September 19, 1997, Xxxxxx'x employment with the Company
shall be permanently and irrevocably severed.
2. Termination Payment. Upon execution of this Agreement, the
Company shall pay to Xxxxxx, in immediately available funds, via wire
transfer or other means acceptable to Xxxxxx, the sum of $2,623,664
less applicable withholding taxes (the "Termination Payment").
3. Satisfaction of Obligations Under the Xxxxxx Change of
Control Agreement. Xxxxxx agrees, acknowledges and affirmatively
represents that upon making the Termination Payment to Xxxxxx, the
Company shall have fully and completed, satisfied and discharged any
and all obligations it has, or may be claimed to have, under the
Xxxxxx Employment Agreement and the Xxxxxx Change of Control
Agreement, and the Company agrees that Xxxxxx shall have fully
satisfied any and all obligations he has, or may be claimed to have,
under the Xxxxxx Employment Agreement and the Xxxxxx Change of Control
Agreement, except as follows (capitalized terms not defined in this
Agreement and the paragraph references below are defined in or refer
to the Xxxxxx Change of Control Agreement):
(a) The Company and Xxxxxx shall have the continuing rights and
obligations described in paragraph 6(a)(ii).
(b) The provisions of paragraph 8 ("Full Settlement") shall
survive.
(c) The Termination Payment includes a Gross-Up Payment of
$697,500, based on an Excise Tax of $279,000, which amounts have been
calculated in good faith by the Company and which Xxxxxx agrees
satisfies the Company's obligation to calculate such amounts pursuant
to paragraph 9(b). If there is an Underpayment or a claim by the
Internal Revenue Service as described in paragraph 9, the rights and
obligations of the Company and Xxxxxx pursuant to paragraph 9 with
respect thereto will continue to apply.
(d) The provisions of paragraph 10 ("Confidential Information")
shall survive.
(e) The provisions of paragraphs 11 and 12(a), (b), (c), (d) and
(e) shall survive, except that the address for notice to the Company
shall be:
Delchamps, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
ATTENTION: Xxxxxxx X. Xxxxxx
and the address for notice to Xxxxxx shall be:
Olympic Towers Condominium
Xxxxxxxxx 0X
Xxxxxxxxx Xxxxx Xx. 0
Xxxxxxx, Xxxxxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
4. Cash Out Agreement. On or before September 26, 1997, the
Company shall pay to Xxxxxx via wire transfer or other means
acceptable to Xxxxxx the sum of $2,325,000, less applicable
withholding taxes, in full settlement of his cash-out agreement with
the Company relating to all of his options to purchase shares of
common stock of the Company.
5. Indemnification and Insurance. Notwithstanding anything
herein to the contrary, Xxxxxx shall retain all of his rights pursuant
to Section 6.5 ("Directors' and Officers' Indemnification and
Insurance") of the Agreement and Plan of merger by and among
Delchamps, Inc., Delta Acquisition Corporation and Jitney-Jungle
Stores of America, Inc. dated July 8, 1997 and all of his rights to
indemnification with respect to his service as a director, officer or
employee of the Company or its subsidiary to which he may be entitled
pursuant to (a) his indemnification agreement with the Company,
(b) the Company's or its subsidiary's articles or bylaws or
(c) applicable law relating to indemnification obligations of
corporations to their directors, officers and employees.
6. Company Benefit Plans. Xxxxxx specifically acknowledges and
understands that he is not entitled to any payment with respect to the
Company's longevity bonus plan. The Company acknowledges and agrees
that Xxxxxx is entitled to the benefits provided by the terms of the
Company's 401(k) plan applicable to employees whose employment has
terminated.
7. Xxxxxx'x Obligations. Except as specifically provided
herein, upon receipt of the Termination Payment, Xxxxxx will have no
further obligations to the Company.
8. Release. Except as specifically provided herein, upon
receipt of the Termination Payment, Xxxxxx, for himself and his
successors, assigns and heirs, hereby forever releases, acquits and
forever discharges the Company and any and all agents, officers, or
employees thereof and any and all partnerships, associations or
corporations who are, or who may be, in any manner whatsoever
responsible for their acts, or the acts of any of them, from any and
all claims, demands, actions, causes of action, suits and damages of
every kind and nature whatsoever whether known or unknown, accrued or
hereafter to accrue, arising out of or in any manner connected with
the Xxxxxx Employment Agreement, the Xxxxxx Change of Control
Agreement, or any investment in, employment or termination of
employment with the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
DELCHAMPS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Title: Senior Vice president and
Chief Financial Officer
/s/ Xxxxx Xxxxxx
----------------
XXXXX X. XXXXXX
