AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT is made as of the 8th day of October, 1996 between SUPER
FOOD SERVICES, INC., a Delaware corporation (the "COMPANY"), and XXXX XXXXX
("EXECUTIVE"), under the following circumstances:
A. The Company employed Executive as its Executive Vice President,
Secretary and Counsel pursuant to an Employment Agreement dated March 3,
1981, as amended by a First Amendment to Employment Agreement dated as of
October 26, 1995 (as amended, the "EMPLOYMENT AGREEMENT"). The Employment
Agreement terminates in accordance with its terms effective March 2, 1998
(the "SCHEDULED RETIREMENT DATE").
B. The Company has entered into an Agreement and Plan of Merger with
XXXX XXXXX COMPANY ("PARENT") and NFC ACQUISITION COMPANY ("ACQUISITION
COMPANY") dated as of October 8, 1996 (as amended from time to time, the
"MERGER AGREEMENT") pursuant to which (i) the Acquisition Company will
make an offer (as amended or modified from time to time, the "OFFER") to
purchase for cash any and all issued and outstanding Common Stock, par
value $1.00 per share, of the Company, and (ii) following completion of the
Offer, the Acquisition Company will be merged into the Company and the
Company will become a wholly-owned subsidiary of Parent (the "MERGER").
C. Following the Merger, Executive will be required to relinquish his
position as Vice Chairman of the Board, Secretary and General Counsel of
the Company which, under the terms of the Employment Agreement, will
entitle him to terminate the Employment Agreement and continue to receive
his "base salary" and certain benefits payable thereunder through the
Scheduled Retirement Date.
D. The Company is willing to pay the entire amount of the base salary
otherwise payable to Executive under the Employment Agreement through the
Scheduled Retirement Date in a lump sum upon completion of the Offer in
consideration for the waiver by Executive of the right to receive certain
benefits otherwise payable by the Company to Executive under the
Employment Agreement during such period.
NOW, THEREFORE, the parties hereto agree as follows:
1. PAYMENT OF BASE SALARY; TERMINATION OF THE EMPLOYMENT AGREEMENT.
Effective upon the date that the Acquisition Company purchases any Common
Stock pursuant to the Offer or, if no Common Stock is purchased pursuant to
the Offer prior to the Merger, the date that the Merger is completed (such
effective date being referred to as the "PAYMENT DATE"), the Company shall
pay to Executive the sum of: (i) the amount of all unpaid salary and benefits
accrued under the Employment Agreement through the Payment Date not
previously paid, and (ii) an amount equal to his full current base salary for
the period from the Payment Date through the Scheduled Retirement Date,
determined without discount. Upon such payment, the Employment Agreement
shall terminate with no further obligation or liability of either party
thereunder.
2. PRESERVATION OF CERTAIN BENEFITS. Notwithstanding anything herein to
the contrary, nothing in this Amendment shall affect: (i) any benefit to
which Executive's right was vested as of the Payment Date under any plan
maintained by the Company including, without limitation, benefits payable
under any pension plan, supplemental pension plan, health or welfare plan or
stock option or stock purchase plan, or (ii) any right of Executive to
receive health insurance benefits through age 65 under the terms of the
health plan for retirees maintained by the Company as of the date of this
Amendment.
3. TERMINATION. In the event that the Merger Agreement is terminated for
any reason prior to the Payment Date, this Amendment thereupon shall
terminate and be of no further force or effect.
4. AMENDMENT; WAIVER. No modification, amendment or waiver of any
provision hereof shall be valid and binding unless it is in writing and
signed by both of the parties hereto. A waiver of any provision hereof shall
be effective only in the specific instance and for the particular purpose for
which it was given. No failure to exercise, and no delay in exercising, any
right or power hereunder shall operate as a waiver of such right or power.
5. ASSIGNMENT. No party to this Agreement shall have the right to assign
its rights or obligations under this Agreement except that the Company shall
assign all of its rights to, and this Amendment shall be binding on, any
assignee of all or substantially all of the assets of the Company or any
other successor to the Company by merger or operation of law.
6. GOVERNING LAW. This Amendment shall be governed by, and the legal
relations among the parties shall be construed in accordance with, the laws
of the State of Ohio as applied to agreements executed and performed entirely
within the State of Ohio.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year first above written.
"The Company"
SUPER FOOD SERVICES, INC.
By:
----------------------------
Name:
Title:
"Executive"
--------------------------------
XXXX XXXXX
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