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EXHIBIT - 10(A)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), dated on the 9th day of
October, 1998 and effective as of December 31, 1998 (the "Effective Date "), by
and between Xxxxx Supermarkets, Inc., an Indiana corporation (together with its
direct and indirect subsidiaries and affiliated entities, the "Company") and C.
Xxxx Xxxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant has been employed by the Company since 1957 in
various capacities, and, since 1992, as its Vice Chairman of the Board and
Senior Vice President-Corporate Development pursuant to that certain Amended
and Restated Agreement dated December 31, 1992 (the "Employment Agreement"),
between the Company and Consultant;
WHEREAS, Consultant desires to resign his employment with the Company
and in connection therewith, Consultant and the Company desire to terminate the
Employment Agreement;
WHEREAS, the Company desires the benefit of Consultant's experience in
and knowledge of the convenience store industry and, therefore, desires to
retain his consulting services after his resignation, and Consultant desires to
provide such consulting services; and
WHEREAS, the Company desires reasonable protection of its confidential
business information which it has developed over the years at substantial
expense and assurance that Consultant will not compete with the Company for a
reasonable period of time after his resignation.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreement contained herein, the Company and Consultant hereby agree as follows:
1. Resignation as Employee and Director; Termination of
Employment Agreement. Consultant hereby resigns as an officer and as a director
of the Company, and Consultant's employment by the Company is hereby
terminated, effective as of the Effective Date. Consultant shall deliver to the
Company's Corporate Secretary a letter in the form attached hereto as Exhibit
A, resigning as an officer and as a director of the Company. The Employment
Agreement is hereby terminated effective as of the Effective Date and shall be
of no further force or effect. The Company and Consultant hereby agree that all
of the duties and obligations of the Company on the one hand and the Consultant
on the other, under the Employment Agreement are hereby completely discharged
and all of the rights and privileges of the Company and Consultant under the
Employment Agreement are hereby completely extinguished. The parties agree that
(except for this Agreement, the Indemnification Agreement (as defined below),
the Split-Dollar Agreement (as defined below), the option agreements entered
into pursuant to the Option Plans (as defined below) and all other obligations
and agreements arising out of employee benefit plans
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and programs sponsored by the Company which covered Consultant on the date on
which this Agreement was executed which agreements, plans and programs are
referred to herein as the "Other Agreements"), the Employment Agreement
constitutes the entire and sole agreement between the Company and Consultant
(or any other party or parties) with respect to Consultant's employment by the
Company or the terms or conditions thereof, and that there are no other
agreements or understandings, either written or oral, with respect thereto.
2. Continued Indemnification. From and after the Effective Date,
the Company shall honor its obligations with respect to the indemnification of
(and advancement of related expenses to) Consultant as an officer of the
Company arising out the Indemnity Agreement, dated August 1, 1989 (the
"Indemnity Agreement"), between Consultant and the Company's affiliate, Xxxxx
Village Pantries, Inc. ("Village Pantries"), to the full extent as in effect on
the date on which this Agreement was executed, in connection with any actual or
alleged act or omission occurring prior to the Effective Date in Consultant's
official capacity as an officer of the Company. The Company shall take any and
all actions necessary to cause Village Pantries to honor its obligations to
Consultant under the Indemnity Agreement.
3. ADEA. Consultant's employment relationship with the Company is
covered by the Age Discrimination in Employment Act of 1967, as amended (the
"ADEA"). Consultant acknowledges that the Company (a) provided him this
Agreement on September 8, 1998, (b) advised and advises him to consult an
attorney prior to signing this Agreement; (c) at that time informed him that he
could have twenty-one (21) days to consider this Agreement; and (d) advised him
that this Agreement shall not be effective or enforceable against him or the
Company if he revokes it not later than seven days after he signs it. Consultant
signed this Agreement on October 9, 1998.
4. Return of Property. Except as provided in Section 5 below, on
the Effective Date, Consultant shall turn over to the Company all property
(including, without limitation, all company credit, debit, charge and telephone
cards) owned, leased or otherwise procured by the Company for Consultant's use
during the period of his employment, and all copies of all electronic or other
data, customer lists, business correspondence, papers, reports, financial
statements, books, records and all other documents containing information
regarding the properties, business, operations, condition or personnel of the
Company in Consultant's possession or control, all of which are agreed to be
the sole and exclusive property of the Company. Further, Consultant agrees that
all information contained in any of the foregoing is subject to Section 14(c)
below.
5. Automobile. Consultant shall retain the Company automobile
(including the mobile telephone in his possession on the Effective Date). As
promptly as practical after the Effective Date, but in no event later than
January 31, 1999, the Company shall convey full title to such automobile to
Consultant, free of all liens and encumbrances. From and after the Effective
Date, Consultant shall be responsible for all costs and expenses (including,
without limitation, all insurance responsibility and expenses) associated with
such automobile (including the mobile telephone), and shall assume all
liability arising from the use of such automobile, notwithstanding that title to
such automobile shall not have been conveyed to Consultant until
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after the Effective Date. The parties hereby stipulate and agree that, for all
purposes, the fair market value of the automobile shall be the amount paid to
the lessor of the automobile by the Company in order to convey clear title
thereto to Consultant.
6. Termination Payment.
(a) On the Effective Date, regardless of whether
Consultant is living on such date, the Company shall contribute
$450,000 to the irrevocable trust referred to in subsection (b)
reduced only by Consultant's share of the Hospital Insurance (i.e.,
"Medicare") employment taxes with respect to such payment. Other than
such amounts as to which Consultant is entitled under the Other
Agreements, the payment under this Section 6 shall be in full and
final satisfaction of any and all obligations that the Company may
have under the Employment Agreement or otherwise in connection with
Consultant's employment or the termination thereof.
(b) Attached hereto as Exhibit B is a copy of the
Irrevocable Trust Agreement between the Company and Xxxxxxx Xxxxx
Trust Company, as Trustee ("Trust"). The termination payment referred
to in subsection (a) shall be contributed to the Trustee by the
Company, in a single lump sum in cash on the Effective Date,
regardless of whether Consultant is still living on the Effective
Date. Upon making such contribution, all of the Company's obligations
to Consultant and his beneficiaries and heirs under this Section 6
shall be fully discharged and the rights of Consultant and his
beneficiaries and heirs, in and to the termination payment referred to
in subsection (a), shall be governed solely by the provisions of the
Trust.
7. Stock Options. The Company hereby agrees that, as of the
Effective Date, all of the options to purchase shares of the Company's common
stock granted to Consultant pursuant to the Company's 1987 Stock Option Plan
("1987 Option Plan") and 1991 Employee Stock Incentive Plan ("1991 Option
Plan") (collectively, the "Option Plans") shall immediately vest and be
exercisable in accordance with the terms and conditions of the Option Plans not
later than the earlier of the following: (i) the dates the options expire
pursuant to their terms under the respective Option Plans, or (ii) June 30,
1999 in the case of options granted under the 1987 Option Plan and December 31,
2001 in the case of options granted under the 1991 Option Plan. Attached hereto
as Exhibit C is a copy of resolutions adopted by the Compensation Committee of
the Board of Directors which authorize the actions necessary to carry out the
provisions of the preceding sentence. Notwithstanding anything to the contrary
contained herein or in either or both of the Plans, the Company, in lieu of
issuing shares of common stock to Consultant upon Consultant's exercise of any
options granted under the Option Plans, shall pay to Consultant, in cash, the
amount by which the closing price of the common stock on the date of
Consultant's exercise of any such options, exceeds the option price of such
options.
8. Moving Expense and Outplacement Service Expense Allowance. On
the date on which this Agreement was executed, the Company paid to Consultant,
in a single lump sum (less all applicable tax withholdings), a moving expense
and outplacement service allowance of $25,000 to enable Consultant to defray
the expenses incurred by him in connection with
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obtaining new employment and relocating his principal residence away from
Xxxxxx County, Indiana, including (i) travel and lodging expenses incurred by
him in connection with his search for, purchase of, and move into, a new
principal residence and, (ii) the costs reasonably incurred by him to have his
personal belongings packed and moved from his current principal residence to
his new principal residence.
9. Medical Benefits. During the term of this Agreement, including
any renewal term, the Company shall provide coverage for Consultant and his
spouse for their lifetime under the Company's group medical plan, at no expense
to Consultant, as if Consultant had continued as an employee of the Company,
provided that such continued participation is possible under the terms and
provisions of the Company's group medical plan. Any future increases in
benefits available to employees of the Company generally shall also be provided
to Consultant and his spouse. In the event that participation by Consultant, as
a former employee or a Consultant, or by his spouse, in the group medical plan
is bared, or if the benefits to Consultant and his spouse (after taking into
account any Medicare benefits provided by Title XVIII of the Social Security
Act to which Consultant and his spouse may be entitled) are reduced to a level
below what they were on the date on which this Agreement was executed, or if
Consultant or his spouse elects at any time by notice in writing to the
Company, the Company shall arrange to provide both Consultant and his spouse
with benefits substantially similar to those which they were receiving under
such group medical plan immediately prior to the date on which this Agreement
was executed, such benefits to be provided at the Company's expense by means of
individual insurance polices, or if such policies cannot be obtained, from the
Company's assets. These benefits shall continue after the death of Consultant
to his spouse, if she survives him, for her lifetime. If at any time after the
Effective Date, Consultant should accept employment with another employer and
if either Consultant or his spouse, or both, should become covered under that
employer's medical benefit plan, then effective on the date that such coverage
commences, the obligation of the Company to provide any medical benefits to
whoever of Consultant or his spouse, or both, is covered under the medical
benefit plan of the other employer shall terminate. The medical benefits
provided to Consultant and his spouse after the Effective Date are intended by
the parties to be in lieu of the rights of Consultant and his spouse to
continuation coverage (commonly known as "COBRA") under Section 601 et seq. of
the Employee Retirement Income Security Act of 1974 ("ERISA"), and Section
4908B of the Internal Revenue Code of 1986, as either of the foregoing statutes
may be amended. In addition, "Lifetime Medical Benefits" shall include the
requirement that if any medical benefits provided to Consultant (or his spouse)
are subject to federal and/or state income taxes, including the alternative
minimum tax, the Company will pay to Consultant (or his spouse) the full amount
of such taxes plus such additional amount as may be necessary so that the net
payment after taxes is sufficient to reimburse Consultant (or his spouse) for
all taxes imposed on the provision of medical benefits.
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10. Life Insurance.
(a) Prior to March 31, 1999, Consultant may direct the
Company to assign to him (or to a trust established by him or
otherwise) any insurance policies on his life owned by it and so
assignable, other than the policy subject to the Split-Dollar
Agreement (as defined below). If so directed, the Company shall
promptly thereafter assign its entire interest in such policies in the
manner directed by Consultant. In addition, the Company shall
reimburse Consultant for the premiums paid by him to maintain the
policies so assigned in effect so long as the consulting engagement
set forth in Section 12 below is in effect, promptly upon his
submission to the Company of written statements for reimbursement in
reasonable detail.
(b) The Agreement Concerning the Interest of Xxxxx
Supermarkets, Inc. in a Policy Insuring the Life of Xxxxxxx Xxxx
Xxxxx, dated March 31, 1986 (the "Split-Dollar Agreement"), relating
to Northwestern Mutual Life Insurance Policy Number 6569864, shall
remain in effect in accordance with its terms, with the express
agreement of the Consultant and the Company that (i) the phrase
"Coverage Termination Date set forth in Paragraph 4(b)(4) of that
certain letter agreement executed by Xxxxxxx Xxxx Xxxxx and Xxxxx
Village Pantries, Inc., a wholly owned subsidiary of the Company,
dated December 31, 1985," which appears in Paragraph 6 of the
Split-Dollar Agreement, shall mean and refer to the date on which the
consulting engagement as set forth in Section 12 shall terminate; and
(ii) the phrase "Date of Termination, as defined in Section 3(e) of
the Letter Agreement," which appears in Paragraph 7 of the
Split-Dollar Agreement, shall mean and refer to March 31, 1986.
(c) The addendum to Northwestern Mutual Life Insurance
Policy 00-000-000, executed by Xxxxx Supermarkets, Inc. and C. Xxxx
Xxxxx on September 3, 1991, shall remain in effect in accordance with
its terms. The Company agrees that the provisions of the Split-Dollar
Agreement shall also apply to Northwestern Mutual Life Insurance
Policy 00-000-000.
(d) The Company agrees that, so long as the consulting
engagement set forth in Section 12 below is in effect, it shall (i)
continue to pay all insurance premiums and interest on policy loans on
Northwestern Mutual Life Insurance Policies 6569864 and 00-000-000
(the "Split-Dollar Policies"); (ii) take no further policy loans on
either of the Split-Dollar Policies; and (iii) take no action to
surrender either or both of the Split-Dollar Policies and receive the
cash surrender value thereof, or to take any other action which would
endanger the interest of the Consultant, without the prior written
consent of the Consultant.
(e) The Company agrees that, so long as the consulting
engagement set forth in Section 12 below is in effect, (i) it shall
pay all premium cost required to provide insurance to the Consultant
under the Company's new group life insurance plan (or any successor
thereto), in an amount equal to two (2) times the Consultant's annual
compensation from the Company; and (ii) the Consultant shall have the
option, at his
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own expense, of electing additional insurance on his life up to three
(3) times the Consultant's annual compensation from the Company, up to
a maximum of $1,000,000 for both basic and optional life insurance
coverage.
11. Other Benefits.
(a) Consultant shall be entitled to receive all benefits
that have accrued to him prior to the Effective Date pursuant to the
Employees' Pension Plan of Xxxxx Supermarkets, Inc. and Subsidiaries,
the Company's 401(k) Plan, the Company's Supplemental Retirement Plan,
as amended and restated as of January 1, 1997 ("SERP"), and any other
deferred compensation or retirement type plan sponsored by the Company
which covered Consultant on the date on which this Agreement was
executed all in accordance with the terms of those respective plans.
(b) On or before the Effective Date, the Company shall
take all action necessary to amend the SERP, effective as of the
Effective Date, to provide Consultant with an unreduced early
retirement benefit thereunder commencing at age 62. Such amendment
shall provide that the amount of Consultant's Supplemental Retirement
Benefit (as defined in the SERP) shall be calculated as if his "Normal
Retirement Date" under the SERP is the first day of the month
following the month in which Consultant attains age 62. The Company
acknowledges and agrees that Consultant is eligible for a benefit
under Article III of the SERP and was designated as a Participant in
the SERP before December 31, 1996.
(c) Consultant shall also be entitled to receive up to
$15,000 to reimburse him for reasonable legal, accounting, actuarial
and consulting fees and expenses incurred in connection with this
Agreement, including fees and expenses incurred after the Effective
Date which relate to the interpretation of Consultant's rights
hereunder or under the Other Agreements and the calculation of his
benefits hereunder and thereunder and related matters subject to the
delivery to the Company of invoices reflecting the incurrence of such
fees and expenses.
12. Consulting Services. The Company hereby engages Consultant to
provide advice and services of a consulting nature to the President and Chief
Executive Officer of the Company and the President of the Company's Pantry
Division (the "Company Contacts") with respect to the management of the
Company's convenience store operations upon reasonable request during a term of
four consecutive calendar years after the Effective Date. The term of this
consulting obligation shall be extended for an additional term of one year on
the same terms and conditions unless the Company provides Consultant with
written notice of its intent not to extend the term of this Agreement not less
than 90 days prior to the end of the initial four year term.
(a) During the period covered by this Section 12,
Consultant hereby specifically agrees to participate in official
functions of the NACS and to provide such reports and advice to the
Company Contacts regarding convenience store industry matters as are
requested by the Company Contacts.
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(b) All advice and services rendered by Consultant under
this Section 12 shall be performed promptly and conscientiously and
Consultant shall be reimbursed for any reasonable expenses incurred by
him in connection with the consulting services requested by the
Company, including, without limitation, all reasonable food, lodging,
travel and transportation expenses incurred by Consultant in
connection with attending official NACS functions. Consultant shall
for all purposes be deemed to be an independent contractor and shall
have no authority to act for or represent the Company in any way.
(c) During the term of this Agreement, including any
renewal term, and thereafter, the Company shall indemnify and hold
Consultant harmless from any and all liabilities, damages, costs,
expenses and reasonable attorneys' fees associated with consulting
services provided to the Company provided by Consultant under this
Agreement. For purposes of this Section 12, (i) the standards of
Consultant's conduct with respect to the services provided by him
hereunder and against which such conduct shall be measured in
determining whether he is eligible for indemnification, and (ii) the
circumstances under which the Company shall indemnify Consultant and
the scope of the Company's indemnification obligations, shall be
identical to the standards of conduct, the circumstances under which
the Company shall indemnify Consultant and the scope of indemnity
contained in the Indemnity Agreement as in effect on the date on which
this Agreement was executed.
13. Consulting Payments. In consideration for Consultant's
services hereunder and his performance of his agreements herein, for a period
of four (4) years after the date of this Agreement, the Company shall pay to
Consultant the aggregate amount of $280,000 per year, payable monthly, with the
first such payment being made on the Effective Date. Provided, however, that
the Company's obligations to make such payments shall terminate upon the
continuing violation by Consultant of any material agreement contained herein
after written notice thereof to Consultant by the Company followed by a period
of thirty days during which Consultant shall have the opportunity to rectify,
to the Company's reasonable satisfaction, such continuing violation of this
Agreement specified by the Company in such notice. Consultant shall be
responsible for the payment, without any withholding by the Company, of all
federal, state and local taxes payable with respect to the foregoing payments
and any other amounts received by Consultant pursuant to this Agreement after
the Effective Date unless the terms of one or more of the Other Agreements or
applicable law otherwise impose a separate withholding obligation on the
Company.
14. Restrictive Covenants. Consultant hereby agrees that for such
period as he is receiving payments pursuant to Section 13 hereof, he shall not,
acting alone or in conjunction with others,
(a) Directly or indirectly, at any place within a 50 mile
radius of any city within the states of Indiana and Ohio where the
Company is engaged in the supermarket and convenience store business
as of the date on which this Agreement was executed, engage in
business in competition with the business being conducted by the
Company
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("Covered Business"), whether as an individual or sole proprietor or
as owner, partner, shareholder (except for 1% or less of any class of
outstanding securities listed on any national securities exchange or
actively traded in an over-the-counter market), officer, director,
employee, member, manager, agent, consultant, formal or informal
advisor, or by or through the lending of any form of assistance; or
(b) Seek to, or assist or encourage others to, or provide
any written or oral information to any person who seeks to (i)
acquire, agree or offer to acquire, or cause to be acquired,
beneficial ownership of any of the Company's material assets or 5% or
more of any class or series of the Company's securities, or any bank
debt, claims or other obligations of the Company, or options or other
rights to acquire any of the foregoing (including from a third party)
or (ii) influence or control the management or policies of the Company
or any other person or entity controlling, controlled by or under
common control with the Company, or obtain representation on the
Company's Board of Directors, or participate in the solicitation of
any proxies or consent with respect to any securities of the Company;
or
(c) Divulge or furnish any information that is not
generally available to the public regarding Covered Business including
the intellectual property, trade secrets (as defined in IC 24-2-3-2),
or any other confidential information concerning Covered Business or
the assets, plans or customers of the Company, to any entity or other
person, or use any such information, trade secret or other
confidential information, directly or indirectly, for his own benefit
or for the benefit of any entity or other person.
15. Put Option. At any time from and after the date on which this
Agreement was executed through December 31, 1998, Consultant shall have a "put
option" with respect to all shares of the Company's Class A Common Stock which
are directly owned by him on the date this Agreement was executed. In order to
exercise such option, which exercise may, in Consultant's sole discretion,
apply to any or all of such shares, Consultant shall provide the Secretary of
the Company with at least five days' prior written notice of his intent to
exercise such option. Such notice shall include the identification of the
shares to which the put option exercise relates, and shall be accompanied by
the certificates for the shares with respect to which the exercise relates duly
endorsed for transfer, free and clear of any liens or encumbrances. Consultant
represents and warrants that all shares with respect to which Consultant
exercises his put option rights under this Section 15 shall be free and clear
of all liens and encumbrances and Consultant shall indemnify and hold the
Company harmless from any damages incurred by the Company as a result of any
breach by Consultant of such representation and warranty. All shares of Class A
Common Stock which are the subject of a put exercise notice hereunder shall be
purchased by the Company (or an entity or person designated by the Company),
for cash, within five business days alter its receipt of Consultant's notice of
exercise and the shares with respect to which the exercise relates, at a price
per share equal to the closing price of such shares on the last trading day
prior to the Company's receipt of such notice on the principal securities
exchange on which such shares are traded or, if such shares are not then traded
on any exchange, at the average of the low bid and high asked price of such
securities on such trading day in the over-the-counter market. The put option
provided to Consultant by the Company under this Section 15
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shall be assignable by Consultant during his lifetime only to a trust with
respect to which Consultant is the settlor or grantor and shall be transferable
only by operation of his will.
16. Enforcement. Consultant acknowledges that any violation by him
of Section 14 of this Agreement will cause irreparable harm to the Company,
that money damages for such harm will be incapable of precise measurement and
that, as a result, the Company will not have an adequate remedy at law to
redress the harm caused by such violation. Therefore, in the event of any such
violation, Consultant agrees that, in addition to its other remedies, the
Company shall be entitled to injunctive relief, including but not limited to,
temporary restraining orders and/or preliminary or permanent injunctions to
restrain or enjoin any such violation. Consultant agrees to and hereby does
submit to jurisdiction before any state or federal court of record in Xxxxxxxx
County, Indiana, or in the state and county in which such violation may occur,
at the Company's election, for that purpose, and Consultant hereby waives any
right to raise the questions of jurisdiction and venue in any action that the
Company may bring in any such court against Consultant.
17. Release by Consultant. Consultant, on behalf of himself, his
agents, attorneys, heirs, successors in interest, subrogees, subrogors and
assigns, hereby waives, releases and forever discharges the Company and its
successors and assigns, and all persons acting by, through, under or in concert
with the Company, including all other persons, agents, directors, officers,
employees, attorneys, partnerships, parents, subsidiaries, joint ventures,
corporations, associations and any other legal entities with whom the Company,
has been, is now, or may hereafter be affiliated or associated, of and from any
and all manner of action or actions, cause or causes of action, in law or in
equity, suits, debts, liens, contracts, agreements, promises, liabilities,
claims, damages, costs, demands, losses of every kind and nature whatsoever,
fixed or contingent, whether known or unknown, anticipated or unanticipated,
direct or indirect, whether based on tort, contract, statutory or other legal
theories of recovery, and whether for compensatory (both general and specific),
punitive or exemplary, statutory or any other form of damages (hereinafter
called "Claims"), (a) that have arisen or may arise under ADEA on or before the
date of this Agreement or (b) that Consultant otherwise now has, ever had or may
have against the Company; provided, however, that the release set forth in this
Section 17 shall not apply to (a) Claims based on or arising out of any breach
by the Company of any of its agreements set forth in this Agreement which are
material or the Other Agreements or (b) Claims based on or arising out of any
material matter as to which there has been active and intentional concealment by
the Company from Consultant. Consultant acknowledges that his release of Claims
under ADEA is done in return for compensation in addition to anything of value
to which Consultant was already entitled prior to the date on which this
Agreement was executed.
18. Release by the Company. The Company, on behalf of itself, its
agents, attorneys, successors in interest, subrogees, subrogors and assigns,
hereby waives, releases and forever discharges Consultant and his successors
and assigns, of and from any and all Claims which the Company now has, ever had
or may have against Consultant; provided, however, that the release set forth in
this Section 18 shall not apply to (a) Claims based on or arising out of any
breach by Consultant of any of his agreements set forth in this Agreement which
are material or (b) Claims
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based on or arising out of any material matter as to which there has been
active and intentional concealment by Consultant from the Company.
19. Severability; Interpretation. Should any clause, portion or
paragraph of this Agreement be unenforceable or invalid for any reason, such
unenforceability or invalidity shall not affect the enforceability or validity
of the remainder of this Agreement. Should any particular covenant or
restriction, including but not limited to the covenants and restrictions of
Section 14, be held to be unreasonable or unenforceable for any reason,
including without limitation the time period, geographical area and scope of
activity covered by such covenant, then such covenant or restriction shall be
given effect and enforced to whatever extent would be reasonable and
enforceable.
20. Binding on Successors and Assigns. No party hereto may assign
its or his rights or obligations hereunder without the prior written consent of
the other parties hereto. The terms and conditions hereof shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Company and the heirs, executors and personal representatives of Consultant.
21. Entire Agreement; Modifications. This Agreement constitutes
the entire agreement between the parties relating to the subject matter hereof.
No amendment to or modification of this Agreement shall be effective unless the
amendment or modification is in writing and signed by the Company and
Consultant.
22. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
on the date delivered, if delivered personally, on the fifth business day after
being mailed by registered or certified mail postage prepaid, return receipt
requested), in each case, to the parties at the following addresses, or on the
date sent and confirmed by electronic transmission to the telecopier number
specified below (or at such other address or telecopier number for a party as
shall be specified by notice given in accordance with this Section 22):
(a) If to Consultant: C. Xxxx Xxxxx
0000 Xxxxx Xx., X. Xx. Xxx. 00
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
(b) If to the Company: Xxxxx Supermarkets, Inc.
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention; Corporate Secretary
Telecopier No.: (000) 000-0000
23. Governing Law. Except to the extent preempted by the laws of
the United States, Agreement shall be governed by and construed in accordance
with the laws of the State of Indiana, without regard to the conflicts of laws
principles thereof.
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24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
25. Other Agreements. Attached as Exhibits D through S are copies
of all Other Agreements in effect on the date this Agreement was executed. The
Company hereby represents and warrants to Consultant and his heirs, personal
representatives and assigns that, as of the date on which this Agreement was
executed, the Other Agreements attached hereto are true, accurate and complete
copies of the Other Agreements and that, such Other Agreements had not been
amended, superseded or terminated and were in full force and effect.
IN WITNESS WHEREOF, the Company, by its officers thereunder duly
authorized, and Consultant, have executed this Agreement on this 9th day of
October, 1998.
XXXXX SUPERMARKETS, INC. XXXXX SUPERMARKETS, INC.
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------- -------------------------
Xxx X. Xxxxx, President and Xxxxxxx X. Xxxx, Chairman
Chief Executive Officer Compensation Committee
Attest: /s/ X. Xxxxxxxx Butt
-----------------------------
X. Xxxxxxxx Butt, Secretary
/s/ C. Xxxx Xxxxx
-------------------------
C. Xxxx Xxxxx
"Company" "Consultant"
The Schedules and Exhibits to the Consulting Agreement have been
omitted, but will be furnished to the Commission supplementally upon request.
