EXHIBIT 10.23
EMPLOYMENT TERMINATION AGREEMENT
AGREEMENT, dated as of June 17,1996, between BIG V SUPERMARKETS,
INC., a New York corporation (the "Company"), BIG V HOLDING CORP., a Delaware
corporation ("Holding"), and Xxxx X. Xxxxxxx ("Koppele").
PRELIMINARY STATEMENT
Koppele served as Senior Vice President Administration, Treasurer and
Chief Financial Officer and a Director of Holding and the Company through
December 31, 1995 pursuant to an Employment Agreement dated December 28, 1990
(the "Employment Agreement") and, thereafter, was employed by Holding and the
Company on an "at will" basis. Koppele was terminated without Cause as an
employee of the Company and Holding effective April 3, 1996.
Koppele owns 32,593.20 shares of Holding's Common Stock through GSK,
Inc. (the "Koppele Shares"). Koppele also has vested options to acquire 380
shares of the Company's Common Stock (the "Vested Options"), and unvested
options to acquire 7,229 shares of Common Stock (the "Unvested options"), all of
which were granted to him pursuant to the Big V Holding Corp. 1990 Time
Accelerated Restricted Stock Option Plan.
In order to settle any and all claims between Koppele, the Company,
Holding, and their directors, officers and employees for all matters relating to
or arising out of such employment and such termination, and to provide for the
Koppele Shares and the Vested Options and the Unvested Options, the parties
mutually agree to the terms and conditions expressly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. Resignations. Koppele resigns as Senior Vice President
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Administration, Treasurer and Chief Financial Officer, as a Director of Holding
and the Company, and as a director or officer of any subsidiary of Holding or
the Company, effective April 3, 1996.
2. Monthly Severance Payments. The Company shall pay Koppele twelve
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(12) consecutive monthly payments through April 30, 1997 in the amount of
$14,333.33 each. The amount of these severance payments to Koppele shall be
reduced by any compensation earned (whether paid on a current or deferred basis)
by Koppele during such 12-month period from any entity or person. Although it is
understood that Koppele shall not be obligated to seek other employment to
entitle him to receive such severance payments, Koppele shall be obligated, as a
condition to receipt of such payments, to inform the Company monthly in writing
of the amount of compensation, if any, he received during the previous month and
the amount, if any, be expects to receive during the current month. Koppele
represents that he has received no such compensation since April 3, 1996. The
monthly payments for May and June 1996 shall be made to Koppele eight days after
the execution and delivery by him of the Agreement and the Release. The monthly
payments for July 1996 through April 1997 shall be made in semi-monthly
installments in arrears and subject to withholding and other applicable taxes.
Koppele waives any rights to receive any bonus from Holding or the Company for
the fiscal year ended December 31, 1995 or any other periods.
3. Weeks of Accrued Vacation. The Company has paid Koppele for four
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weeks of accrued vacation time, less the number of vacation days Koppele took
during 1996.
4. Health and Life Insurance. The Company shall continue to provide
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Koppele group health, dental and vision insurance coverage through the earlier
of April 30,
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1997 and the date on which Koppele is eligible for such insurance benefits by
reason of being employed by another employer. The Company shall maintain the
life insurance policy currently held by the Company on Koppele's life (the
"Policy") through the earlier of April 30, 1997 and the date Koppele is eligible
for such insurance by reason of being employed by another employer. On and after
May 1, 1997, Koppele, at his expense, shall be entitled to elect to continue his
coverage under the Company's group medical plans in accordance with this rights
under the Consolidated Omnibus Budget Reconciliation act of 1985. At Koppele's
request made prior to May 1, 1997, and to the extent permitted, the Company
shall transfer to Koppele the Policy and upon such transfer Koppele shall be
responsible for the payment of all premiums and other charges.
5. Automobile. In consideration of Koppele's return of the automobile
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leased by the Company for the benefit of Koppele, the Company shall pay Koppele
$5,000 eight days after the execution of this Agreement and the Release.
6. Additional Payment. In lieu of the Company providing Koppele with
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the services of an executive outplacement firm, the Company shall pay Koppele
$22,000, subject to withholding and other applicable taxes, eight days after the
execution of this Agreement and the Release.
7. Continued Ownership of Holding Stock. The parties acknowledge that
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the Koppele Shares shall continue to be subject to the Amended and Restated
Shareholders' Agreement, dated as of December 17, 1993, among Holding, Koppele
and other shareholders of Holding (the "Shareholders' Agreement"), except that
Koppele waives any rights he may
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have to exercise the "Put Option" with respect to the Koppele Shares and Holding
waives any rights it may have to exercise the "Call Option" with respect to the
Koppele Shares.
8. Vested Options and Unvested Options. (a) The Company waives its
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right to exercise its "Call Option" pursuant to Section 2.5 of the Shareholders'
Agreement to purchase from Koppele the Vested Options and thus such Vested
Options shall remain outstanding, subject to the terms thereof. Koppele waives
any rights he might otherwise have had to exercise the "Put Option" with
respect to the Vested Options.
(b) The Unvested Options and all of Koppele's rights with respect
thereto shall be deemed terminated upon the execution of this Agreement.
9. Non-compete Provision.
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(a) Koppele agrees that in consideration of his continued employment
under the Employment and Non-Competition Agreement, dated as of December 28,
1990, by and among Koppele, Holding and the Company (the "Employment Agreement")
and the Letter Agreement, and in consideration of the Company's agreement to
provide Koppele with the severance and other benefits provided under this
Agreement, and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, Koppele shall not, prior to the
expiration of one year from the date the Company ceases to make payments under
Section 2 hereof, directly or indirectly, by or for himself or as the agent of
another or through another as his agent, whether or not he has remained entitled
to receive all of the severance benefits provided herein, (i) own any interest
in (other than up to five percent of any publicly traded security), provide
consulting or other services to or serve as an employee, officer or director or
engage in the management or operation of any entity that directly or indirectly,
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owns, manages or operates, or participates in the operation of, any supermarket
or other retail grocery store which is located within 20 miles of any
supermarket owned or operated by Holding or any subsidiary of Holding, or (ii)
solicit, induce or advise any employee to leave the employ of Holding, the
Company or any of its subsidiaries. If a current employee shall leave on his/her
own volition without any violation by Koppele of the undertakings hereunder,
there shall be no restriction on employment of such former employee by Koppele
after termination of the former employee.
(b) In addition to all other remedies provided for hereunder, Koppele
agrees that if he shall violate any of the provisions of this Section 9, the
Company and Holding shall be entitled to an accounting and repayment of all
profits, compensation, remuneration or other benefits that Koppele may realize
arising from or related to any such violation. The parties also agree and
acknowledge that the duration, scope and geographic area of the covenant not to
compete described in this Section 9 are fair, reasonable and necessary in order
to protect the good will and other legitimate interests of the Company and
Holding, that adequate compensation has been received by Koppele for such
obligations, and that these obligations do not prevent Koppele from earning a
livelihood. If, however, for any reason any court determines under applicable
law that the provisions in this Section 9 pertaining to duration, scope and
geographic area in relation to non-competition are too broad or otherwise
unreasonable, that the consideration provided for is inadequate or that Koppele
has been prevented unlawfully from earning a livelihood (together, such
provisions being hereinafter referred to as "Restrictions"), such Restrictions
shall be interpreted, modified or rewritten, and
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such court is hereby requested and authorized by the parties hereto to revise
the Restrictions, to include the maximum Restrictions as are valid and
enforceable under applicable law.
10. Confidential Information. (a) Koppele acknowledges and agrees
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that as an officer and director of the Company and Holding be has knowledge of
confidential and proprietary information including, but not limited to strategic
plans or data, financial statements, information concerning the business,
operations or financial condition of Holding, the Company and their subsidiaries
and affiliates and Wakefern Food Corporation, marketing data, customer research
and data, information concerning sources of supply, pricing information and
data, and trade secrets. Such information shall be referred to hereinafter as
"Proprietary Information" and shall include any and all items enumerated in the
preceding sentence, whether conceived or developed by others or by Koppele alone
or with others, and whether or not conceived or developed during regular working
hours.
(b) Koppele acknowledges that Holding and the Company have expended
significant amounts of time, effort and money in the procurement of their
Proprietary Information, that Holding and the Company have taken all reasonable
steps in protecting the secrecy of the Proprietary Information, that said
Proprietary Information is of critical importance to Holding and the Company and
that a violation of Section 10 of this Agreement would seriously and irreparably
impair and damage the business of both Holding and the Company, and Koppele
agrees to keep all Proprietary Information in a fiduciary capacity for the sole
benefit of Holding and the Company.
(c) Koppele acknowledges and agrees that he shall treat as
confidential all Proprietary Information and Koppele represents and warrants
that during his employment by
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the Company he has done the same. Without the prior written consent of the
Company or Holding, Koppele agrees that he shall not, directly or indirectly,
disclose any Proprietary Information to any party not at the time of such
disclosure an officer of the Company, or remove from the Company's premises any
notes or records relating thereto, copies thereof or any other property of the
Company or Holding. Koppele agrees that all Proprietary Information, together
with all his notes and records relating thereto and all copies thereof in his
possession, are the exclusive property of the Company and Holding and that he
shall promptly deliver to the Company all such information in his possession
without retaining a copy thereof. Koppele agrees that he shall not in any manner
use any such information or any other property of the Company or Holding in any
manner not specifically directed by the Company or Holding in any way which is
detrimental to the Company or Holding, as determined by the Company or Holding
in its sole discretion.
11. Injunctive Relief. In view of the irreparable harm and damage,
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which would be incurred by Holding and the Company in the event of any violation
by Koppele of any of the provisions hereof, Koppele hereby consents and agrees
that in any such event, Holding and the Company, in addition to any other rights
either may have, and without prejudice to any other remedies which may be
available at law or in equity, shall be entitled to an injunction or similar
equitable relief to be issued by any court of competent jurisdiction restraining
Koppele from committing or continuing any such violation, without the necessity
of proving damage, or posting any bond or other security.
12. Mutual Release. In partial consideration for the Company's and
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Holding's obligations to Koppele hereunder and Koppele's obligations to the
Company hereunder, the
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parties hereto shall execute and deliver the releases in the forms set forth in
Exhibit A to this Agreement.
13. Mutual Non-Disparagement: References. Koppele agrees that he will
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not disparage in any manner Holding, the Company or their respective directors,
officers, stockholders, employees, representatives and attorneys, successors,
subsidiaries, related corporations, and any person or entity acting for or on
behalf of Holding or the Company. Each of Holding, the Company and their
respective officers and directors agrees that it or he will not, and the Company
will use best efforts to cause its employees to not, disparage in any manner
Koppele or any person or entity acting for or on behalf of Koppele. Concurrently
with the execution of this Agreement, the Company will deliver to Koppele a
signed letter of reference in the form of Exhibit B hereto.
14. Miscellaneous.
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(a) Payments in cash made to Koppele pursuant to this Agreement shall
be subject to withholding and other applicable taxes, except that payments under
Section 5 shall not be subject to withholding or other applicable taxes.
(b) This Agreement may not be amended, modified, terminated or
discharged except by a writing signed by the party against whom enforcement of
such amendment, modification, termination or discharge is sought.
(c) Any failure to exercise or delay in exercising, on the part of
Koppele, the Company or Holding, any right, power or privilege under this
Agreement shall not operate as a waiver thereof, and any exercise or partial
exercise of any right, power or privilege hereunder shall not preclude any other
right, power or privilege.
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(d) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, administrators,
executors, successors and assigns.
(e) This Agreement is made under, and shall be governed by and
construed in accordance with, the laws of the State of New York.
(f) This Agreement, the Shareholders' Agreement and the release
provided for in Section 12 herein, constitute the entire agreement of the
parties hereto regarding the subject matters contained herein and therein and
shall supersede in all respects any provision of the Employment Agreement and
the letter dated March 21, 1995 from Xxxxx X. Xxxxxxxxx to Koppele which
otherwise would have governed the rights and obligations of the Company, Holding
and Koppele upon the termination of Koppele's employment.
(g) No provision of this Agreement that is deemed unenforceable shall
in any way invalidate any other provision hereof, each of which shall remain in
full force and effect.
(h) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
(i) The captions used herein are inserted for reference purposes only
and shall not affect the interpretation or meaning of the Agreement.
(j) Koppele acknowledges that he may have up to twenty-one (21) days
to review and sign this Agreement and the attached Release and that he has seven
(7) days following his execution and delivery of this Agreement and the Release
to revoke them and neither this Agreement nor the Release shall become effective
and enforceable until the revocation period has expired. If Koppele determines
to revoke this Agreement and the Release, he must notify
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the Company in writing by 5:00 p.m. on the 7th calendar day after he signs this
Agreement and the Release. If Koppele revokes this Agreement or the Release, he
shall forfeit all the rights and benefits provided to him hereunder.
(k) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
BIG V SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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BIG V HOLDING CORP. INC.
By: /s/ Xxxxxx X. Xxxxxx
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/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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EXHIBIT A
RELEASE
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Pursuant to the terms of the Agreement (the "Agreement"), dated as of
June 17, 1996, between Big V Supermarkets, Inc. (the "Company"), Big V Holding
Corp. ("Holding") and the undersigned, and in consideration of the payments made
to me and other benefits to be received by me pursuant thereto, I, Xxxx X.
Xxxxxxx, being of lawful age, do hereby release and forever discharge the
Company and Holding, and their respective directors, officers, shareholders,
subsidiaries, agents, and employees, from any and all actions, causes of action,
claims, or demands for general, special or punitive damages or for any other
legal or equitable relief, attorneys' fees, expenses, or other payments, which
in any way relate to or arise out of my employment with the Company and Holding,
the termination of such employment and the termination of my unvested options to
acquire shares of Holding Common Stock, which I may now or hereafter have under
any federal, state or local law, regulation or order, including without
limitation, under the Age Discrimination in Employment Act, as amended. Nothing
herein shall act as a waiver or act as a bar to any action to enforce the terms
of the Agreement or the Shareholders' Agreement (as defined therein).
I acknowledge that I have consulted an attorney before signing the
Agreement or this release.
I further state that I have carefully read the Agreement and this
release, that I know the contents of such documents, and that I have executed
the same as my own free act.
WITNESS my hand as of the 17th day of June, 1996.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
RELEASE
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Pursuant to the terms of this Agreement (the "Agreement"), dated as
of June 17, 1996, between Big V Supermarkets, Inc. (the "Company"), Big V
Holding Corp. ("Holding") and Xxxx X. Xxxxxxx ("Koppele"), and in consideration
of the covenants made by Koppele pursuant to the Agreement, each of the Company
and Holding do hereby release and forever discharge Koppele from any and all
actions, causes of action, claims, or demands for general, special or punitive
damages or for any other legal or equitable relief, attorneys' fees, expenses,
or other payments, which in any way relate to or arise out of his employment
with the Company and Holding and the termination of such employment, which
either the Company or Holding may now or hereafter have under any federal, state
or local law, regulation or order. Nothing herein shall act as a waiver or act
as a bar to any action to enforce the terms of the Agreement or the
Shareholders' Agreement (as defined therein) or any action arising from the
willful or intentional misconduct of Koppele while employed by either the
Company or Holding.
The undersigned acknowledge that they have consulted an attorney
before signing the Agreement and this release.
The undersigned further state that they have carefully read the
Agreement and this release, that I know the contents of such documents, and that
they have executed the same as my own free act.
WITNESS my hand as of the 17th day of June, 1996.
BIG V SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title:
BIG V HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title:
EXHIBIT B
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June 12, 1996
Dear Sir or Ms.
This letter is to recommend [ full name ] for a position with your
firm and to acknowledge his contribution as a Senior Executive with the company.
For a decade, [ 1st name ] reported directly to me and was a valued
advisor as both a Senior Vice President and Director of the Corporation. In this
capacity, he played an important role in the success of Big V.
[ -1st name ] resigned in good standing when his position was restructured
and consolidated. We wish him well in his future career endeavors.
Very Truly Yours,
Xxxxx Xxxxxxxxx
Chairman of the Board
