Exhibit 10.13
AMENDMENT TO
KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AMENDMENT ("Amendment"), dated as of July 27, 1998, supplements
and amends the existing Key Employment and Severance Agreement
("Agreement") by and between XXXXXXX SAV-O STORES, INC., a Wisconsin
corporation ("Company"), and the named executive set forth above
("Executive"). All defined terms used herein and not defined shall have
the same meaning as in the Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 19 of the Agreement, the Executive and
the Company desire to supplement and amend the Agreement as specifically
set forth in this Amendment.
WHEREAS, the Board of Directors of the Company believes it is in the
best interests of the Company to allow the Executive the right to exercise
a "discretionary termination" at any time within one year after a Change
in Control for any reason and be eligible to receive his Termination
Payment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein set forth, and for other valuable
consideration the parties hereto covenant and agree as follows:
1. The first paragraph of Section 1(m) and paragraph (E) of
Section 1(m) of the Agreement are each hereby amended and restated to read
in their respective entirety as follows:
"(o) Termination Date. For purposes of this Agreement,
except as otherwise provided in Section 10(b) and Section
17(a) hereof or as set forth below, the term `Termination
Date' means (i) if the Executive's employment is terminated
by the Executive's death, the date of death; (ii) if the
Executive's employment is terminated by reason of voluntary
early retirement, as agreed in writing by the Company and
the Executive, the effective date of such early retirement
which is set forth in such written agreement; (iii) if the
Executive's employment is terminated by reason of
disability pursuant to Section 12 hereof, the earlier of
thirty (30) days after the Notice of Termination is given
or one day prior to the end of the Employment Period; (iv)
if the Executive's employment is terminated by the
Executive voluntarily (other than for Good Reason), the
date the Notice of Termination is given; (v) if the
Executive's employment is terminated by the Executive
pursuant to a Discretionary Termination, the date the
Notice of Termination is given, but not later than the
first anniversary after the occurrence of the Change in
Control of the Company; and (vi) if the Executive's
employment is terminated by the Company (other than by
reason of disability pursuant to Section 12 hereof) or by
the Executive for Good Reason, the earlier of thirty (30)
days after the Notice of Termination is given or one day
prior to the end of the Employment Period. Notwithstanding
the foregoing, ..." [Remainder of existing Section 1(m) to
remain as written in Agreement, except for paragraph (E) as
provided below.]
"(E) Except as provided in Paragraphs (B) and (C) above and
other than a Discretionary Termination (which cannot be
subject to dispute by the Company), if the party receiving
the Notice of Termination in good faith notifies the other
party that a dispute exists concerning the termination
within the fifteen (15) day period following receipt
thereof and it is finally determined that the reason
asserted in such Notice of Termination did not exist, then
(1) if such Notice was delivered by the Executive, the
Executive will be deemed to have voluntarily terminated his
employment and (2) if delivered by the Company, the Company
will be deemed to have terminated the Executive other than
by reason of death, disability or Cause."
2. New Section 1(n) of the Agreement is hereby added to the
Agreement in its entirety as follows:
"(n) Discretionary Termination. For purposes of this
Agreement, `Discretionary Termination' means the
determination by the Executive at any time during the one-
year period after the occurrence of a Change in Control of
the Company, as evidenced by the Executive's delivery to
the Company of a Notice of Termination during such period,
to terminate this Agreement and his employment hereunder
for any reason whatsoever in his sole discretion, with or
without good faith, and regardless of whether the Company
has terminated or is terminating Executive for any reason,
including for `Cause.'"
3. Section 3 of the Agreement is hereby amended and restated
in its entirety to read as follows:
"3. Employment Period. If a Change in Control of the
Company occurs when the Executive is employed by the
Company, the Company will continue thereafter to employ the
Executive during the Employment Period, and the Executive
will remain in the employ of the Company, in accordance
with and subject to the terms and provisions of this
Agreement (including, without limitation, the Executive's
right to exercise a Discretionary Termination), and the
terms of this Agreement shall expressly supersede the terms
and conditions of any other then existing employment
arrangement or agreement between the Company and the
Executive."
4. Section 7 of the Agreement is hereby amended and restated
in its entirety to read as follows:
"7. Termination For Cause or Without Good Reason. If
there is a Covered Termination for Cause or due to the
Executive's voluntarily terminating his employment, other
than for Good Reason or a Discretionary Termination (any
such terminations to be subject to the procedures set forth
in Section 13 hereof), then the Executive shall be entitled
to receive only Accrued Benefits pursuant to Section 9(a)
hereof."
5. Section 8(b) of the Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) If there is a Covered Termination by the Executive
for Good Reason or a Discretionary Termination, or by the
Company other than by reason of (i) death, (ii) disability
pursuant to Section 12 hereof, or (iii) Cause, then the
Executive shall be entitled to receive, and the Company
shall promptly pay, Accrued Benefits pursuant to Section
9(a) hereof and, in lieu of further base salary for periods
following the Termination Date, as liquidated damages and
severance pay, the Termination Payment pursuant to
Section 9(b) hereof."
6. The first paragraph of Section 9(b) of the Agreement shall
be amended and restated in its entirety as follows:
"(b) Termination Payment. The Termination Payment shall
be an amount equal to the Executive's monthly base salary,
as in effect immediately prior to the Change in Control of
the Company, as adjusted upward from time to time pursuant
to Section 6 hereof, multiplied by the greater of the
number of months (which shall include fractions of months
rounded up to the next highest whole number) remaining in
the Employment Period or twelve (12). Except as otherwise
provided herein, the Termination Payment shall be paid to
the Executive in cash no later than ten (10) business days
after the Termination Date; provided, however, the
Termination Payment shall be paid immediately upon receipt
by the Company of a Notice of Termination relating to a
Discretionary Termination (regardless of any differing
effective date of the Executive's employment termination).
The Executive shall not be required to mitigate the amount
of the Termination Payment by securing other employment or
otherwise, nor will such Termination Payment be reduced by
reason of the Executive securing other employment or for
any other reason."
[Remainder of existing Section 9(b) to remain as written in
the Agreement.]
7. Section 10(b) of the Agreement shall be amended and
restated in its entirety as follows:
"(b) In the event the Executive dies after a Notice of
Termination is given (i) by the Company, other than by
reason of disability, or (ii) by the Executive for Good
Reason or a Discretionary Termination, the Executive's
estate, heirs and beneficiaries shall be entitled to the
benefits described in Section 10(a) hereof and, subject to
the provisions of this Agreement, to such Termination
Payment as the Executive would have been entitled to had
the Executive lived. For purposes of this Section 10(b),
the Termination Date shall be the earlier of thirty (30)
days following the giving of the Notice of Termination or
one day prior to the end of the Employment Period, subject
to delay pursuant to Section 1(m) hereof."
8. Section 11 of the Agreement shall be amended and restated
in its entirety as follows:
"11. Retirement. If, during the Employment Period, the
Executive and the Company shall execute an agreement
providing for the early retirement of the Executive from
the Company, or the Executive shall otherwise give notice
that he is voluntarily choosing to retire early from the
Company, the Executive shall receive Accrued Benefits
through the Termination Date; provided, that if the
Executive's employment is terminated by the Executive for
Good Reason or a Discretionary Termination or by the
Company other than by reason of death, disability or Cause
and the Executive also, in connection with such
termination, elects voluntary early retirement, the
Executive shall also be entitled to receive a Termination
Payment pursuant to Section 9(b) hereof."
9. Section 13(a) and (d) of the Agreement shall be amended and
restated in their respective entirety as follows:
"(a) If such termination is for disability, Cause or Good
Reason, the Notice of Termination shall indicate in
reasonable detail the facts and circumstances alleged to
provide a basis for such termination. (No such detail need
be provided for a Discretionary Termination.)"
"(d) The recipient of the Notice of Termination shall
personally deliver or mail in accordance with Section 23
hereof written notice of any dispute relating to such
Notice of Termination to the party giving such Notice
within fifteen (15) days after receipt thereof; provided,
however, that a Notice of Termination relating to a
Discretionary Termination shall not be subject to dispute
for any reason by the Company or otherwise. After the
expiration of such fifteen (15) days (or immediately upon
receipt of a Notice of Termination relating to a
Discretionary Termination), the contents of the Notice of
Termination shall become final and not subject to dispute."
10. Except as specifically set forth above, all other terms and
conditions of the Agreement shall continue in full force and effect,
unaffected by this Amendment. This Amendment shall be effective for all
purposes immediately as of the date first written above.
IN WITNESS WHEREOF, the Executive and the Company have set their
hands hereto as of the date above.
EXECUTIVE XXXXXXX SAV-O STORES, INC.
________________ By:___________________________________
Xxxxx X. Xxxxxxxxx
Chairman, President and Chief Executive Officer
