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TERMINATION AGREEMENT
TERMINATION AGREEMENT (the "Termination Agreement") dated
November 28, 1997, between Uni-Marts, Inc. (the "Company") and
Xxxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Executive has been employed as an officer of the
Company and has served as President and Chief Operating Officer.
WHEREAS, the Company and the Executive mutually desire to have
the employment of the Executive by the Company terminated on or
before December 8, 1997 to permit Executive to retire and to provide
for an orderly transfer of Executive responsibilities; and
WHEREAS, the parties wish to settle their mutual rights and
obligations arising from, or related to, the termination of the
Executive's employment with the Company.
NOW THEREFORE, in consideration of the mutual promises and
agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive, intending to be legally
bound, agree as follows:
Section 1. Termination and Termination Payment. The
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Employee agrees that he will terminate his employment with and retire
from the Company on or before December 8, 1997 (the "Termination
Date"). Subject to the last sentence of this Section 1 and Section 6
below, the Company agrees to pay the Executive his regular salary
until May 15, 1998. Except as provided below, such payment shall be
in lieu, and in complete discharge, of all obligations owed by the
Company to Executive, including but not limited to benefits to which
Executive is entitled pursuant to the terms of the Agreement between
the Company and the Executive dated February 1, 1994, except (i) for
any claim to which the Executive is entitled to indemnification from
the Company for any acts or omissions in his capacity as an officer
of the Company (except for criminal wrongdoing or acts outside the
scope of his employment) and (ii) as set forth herein. Nothing
herein shall affect Executive's rights with respect to his interests
in any and all retirement and welfare benefit plans maintained by the
Company, including the Company's 401(k) Plan and deferred
compensation plan. The Company may withhold from the foregoing
payment and pay over to the applicable tax authorities all amounts
required to be withheld in accordance with applicable federal, state
and local tax withholding laws.
Section 2. Life Insurance, Automobile and Legal Fees.
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a) The Company will continue in full force and effect
and pay for the cost to continue all group (if permitted under the
policy) and individual life insurance policies for the Executive
until May 15, 1998.
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b) The Company agrees to continue to allow Executive to
retain and utilize the automobile provided to him by the Company
until May 15, 1998 at which time Executive shall deliver such
automobile to the Company or to such other location as directed by
the Company. In accordance with existing policy and practice, the
Company shall reimburse Executive for any and all reasonable costs
and expenses associated with the operation of the automobile,
including, but not limited to, fuel, repairs and insurance.
c) The Company agrees to pay the reasonable legal fees
and expenses of counsel to the Executive in an amount not to exceed
$2,000.
Section 3. Consulting. From the Termination Date until May
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15, 1998, Executive agrees to provide the Company consulting services
as may be reasonably requested by the Company. The Company agrees to
pay to Executive reasonable out-of-pocket expenses incurred by
Executive in connection with the performance of such consulting
services.
Section 4. Resignation from Offices. The Executive agrees
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that effective on the date hereof he shall be deemed to have resigned
as a director and effective December 8, 1997 from all offices and
positions with the Company.
Section 5. No further Obligations of the Company or
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Executive. Except as provided in Sections 1, 2, 3 and 9 hereof, the
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Company shall have no further obligations whatsoever to the Executive
and the Executive hereby releases the Company as set forth in Exhibit
A hereto. Except as set forth in Sections 7, 8, 9 and 10(c),
Executive shall have no further obligations to the Company, and the
Company hereby releases Executive as set forth in Exhibit B.
Section 6. Conditions of Benefits. The Company shall
----------------------
provide to the Executive the rights, payments and benefits set forth
in Sections 1 and 2 hereof as consideration for and contingent upon
(i) the Executive's execution, non-revocation and honoring of a
release of claims and covenant not to xxx in favor of the Company in
the form attached hereto as Exhibit A and (ii) the Executive's
continued compliance with the provisions of Sections 7, 8 and 9
hereof. If the Executive is in breach of any of such Sections, the
Company may terminate its obligations under Sections 1 and 2 above.
Section 7. Nondisclosure. The Executive hereby agrees that
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he shall not, at any time following the Termination Date, disclose or
use for any purpose confidential information or proprietary data of
the Company (or any of its subsidiaries), except as required by
applicable law or legal process; provided, however, that confidential
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information shall not include any information known generally to the
public or ascertainable from public or published sources (other than
as a result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that
conducted by the Company. The Executive acknowledges and agrees that
the Company will suffer irreparable injury in the event of any
material breach of this Section 7, that damages resulting from such
injury will be incapable of being precisely measured, and that the
Company will not have an adequate remedy at law to redress the harm
which such violation shall cause. Therefore, the Executive agrees
that the Company shall have the rights and remedies of specific
performance and injunctive relief, in addition to any other rights or
remedies that may be available at law or in equity or under this
Agreement, in respect of any failure, or threatened failure, on the
part of the Executive to comply with the provisions of this Section
7, including, but not limited to, temporary restraining orders and
temporary injunctions to restrain any violation or threatened
violation of this Section 7 by the Executive.
Section 8. Return of Company Property. The Executive
--------------------------
acknowledges that all records, files, documents and equipment, all
information relating to employees, Company members and suppliers, and
any other materials that in any way relate to the business of the
Company which the Executive has accumulated during his employment by
the Company, other than information and documents publicly known or
disseminated, are the property of the Company, including all
duplicates and copies of any of the foregoing, and that all such
property shall be returned to the sole possession of the Company on
or before the Termination Date.
Section 9. Business Goodwill. At all times following date
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hereof, the Executive shall make no comments or take any other
actions, direct or indirect, that will reflect adversely on the
Company or its officers and directors in such capacity or adversely
affect their business reputation or goodwill. At all times following
the date hereof, the Board of Directors will take reasonable efforts
to instruct its members and each officer of the Company not to make
comments or take any other actions, direct or indirect, that will
reflect adversely on the Executive or adversely affect his business
reputation or goodwill. The Executive hereby agrees that he shall
cooperate with the Company and its agents and representatives with
respect to reasonable requests for information with respect to the
Company and its financial statements that the Company and its agents
and representatives request and in taking such other reasonable
action with respect to the Company and its financial statements as
the Company and its agents and representatives may request. The
Executive hereby represents to the Company that he has disclosed
fully to the Company the terms and conditions of all arrangements,
contracts and understandings, whether written or oral, with all of
the Company's suppliers or vendors. The Executive further agrees to
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assist the Company at any time in the future, with respect to all
reasonable requests to testify in connection with any legal
proceeding or matter relating to the Company, including but not
limited to any federal, state or local audit, proceeding or
investigation, other than proceedings relating to the enforcement of
this Termination Agreement or other proceedings in which the
Executive is a named party whose interests are adverse to those of
the Company.
Section 10. Miscellaneous.
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A. Complete Agreement. This Termination Agreement
------------------
constitutes the entire agreement between the parties and cancels and
supersedes all other agreements and understandings, whether written
or oral, between the parties which may have related to the subject
matter contained in this Termination Agreement.
B. Modification; Agreement: Waiver. No modification,
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amendment or waiver of any provisions of this Termination Agreement
shall be effective unless approved in writing by both parties. The
failure at any time to enforce any of the provisions of this
Termination Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of either party
thereafter to enforce each and every provision hereof in accordance
with its terms.
C. Governing Law; Jurisdiction. 1. This Termination
---------------------------
Agreement and performance under it, and all proceedings that may
ensue from its breach, shall be construed in accordance with and
under the laws of the Commonwealth of Pennsylvania.
2. In the event of any dispute under the provisions of
this Agreement other than a dispute in which the primary relief
sought is an equitable remedy such as an injunction, the parties
shall be required to have the dispute, controversy or claim settled
by arbitration in State College, Pennsylvania in accordance with the
National Rules for the Resolution of Employment Disputes then in
effect of the American Arbitration Association, before a panel of
three arbitrators, two of whom shall be selected by the Company and
Executive, respectively, and the third of whom shall be selected by
the other two arbitrators. Any award entered by the arbitrators
shall be final, binding and nonappealable and judgment may be entered
thereon by either party in accordance with applicable law in any
court of competent jurisdiction. This arbitration provision shall be
specifically enforceable. The arbitrators shall have no authority to
modify any provision of this Agreement or to award a remedy for a
dispute involving this Agreement other than a benefit specifically
provided under or by virtue of the Agreement. If Executive prevails
on any material issue which is the subject of such arbitration or
lawsuit, the Company shall be responsible for all of the fees of the
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American Arbitration Association and the arbitrators and any expenses
relating to the conduct of the arbitration (including reasonable
attorneys' fees and expenses). Otherwise, each party shall be
responsible for his or its own expenses relating to the conduct of
the arbitration (including reasonable attorneys' fees and expenses)
and shall share the fees of the American Arbitration Association.
D. Severability. Whenever possible, each provision of this
------------
Termination Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Termination Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Termination Agreement.
E. Assignment. The rights and obligations of the parties
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under this Termination Agreement shall be binding upon and inure to
the benefit of their respective successors, assigns, executors,
administrators and heirs, provided, however, that neither the Company
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nor the Executive may assign any duties under this Termination
Agreement without the prior written consent of the other.
F. Notices. All notices and other communications under this
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Termination Agreement shall be in writing and shall be given in
person or by telegraph, telefax or first class mail, certified or
registered with return receipt requested, and shall be deemed to have
been duly given when delivered personally or three days after mailing
or one day after transmission of a telegram or telefax, as the case
may be, to the respective persons named below:
If to the Company: Uni-Marts, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
Attn: Chief Executive Officer
If to the Executive: Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
G. Advice of Counsel. The Executive acknowledges that he has
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consulted with his own legal counsel with respect to the subject
matter and the terms of this Agreement and that this Agreement is the
product of negotiations between the Company and its counsel on the
one hand and the Executive and his counsel on the other.
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H. Confidentiality. The Executive and the Company agree to
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keep confidential the existence of this Agreement and the terms
unless otherwise required by law, rule or regulation. Executive
hereby recognizes that this Agreement may be required to be filed as
an exhibit to a periodic report filed by the Company and in the
federal securities laws.
IN WITNESS WHEREOF, the parties have executed this Termination
Agreement as of the day and year first above written.
COMPANY: UNI-MARTS, INC.
By /S/ XXXXX X. XXXXXXXX
-----------------------------------
Its C.E.O.
----------------------------------
EXECUTIVE: /S/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
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EXHIBIT A
GENERAL RELEASE AGREEMENT
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I, XXXXXXX X. XXXXXXX, for myself, my heirs, executors,
administrators and assigns, if any, for and in consideration of the
rights, payments and benefits under the Termination Agreement between
the undersigned and Uni-Marts, Inc. ("Uni-Marts") dated November 28,
1997 (the "Termination Agreement") hereby agrees as follows:
1. I waive, release and forever discharge Uni-Marts, and
its subsidiaries and affiliates, and each of their directors,
officers and employees and each of their successors and assigns
(hereinafter the "Released Parties"), of and from any and all past or
present causes of action, suits, agreements or other claims which I
have against the Released Parties upon or by reason of any matter,
cause or thing whatsoever, including, without limitation, claims for
any alleged violation of the Civil Rights Act of 1964 and 1991, the
Equal Pay Act of 1963, the Age Discrimination in Employment Act of
1967, the Rehabilitation Act of 1973, the Older Workers Benefit
Protection Act of 1990, the Americans with Disabilities Act of 1990,
the Family and Medical Leave Act of 1993, the Pennsylvania Human
Relations Act and any other federal or state law, regulation or
ordinance, or public policy, contract or tort law having any bearing
whatsoever on the terms and conditions of employment or termination
of employment, and I promise not to file a lawsuit to assert any such
claims; provided, however, that this release shall not apply to A)
the payments and benefits set forth in the Termination Agreement, B)
any benefit payable under the terms of any employee benefit plan
maintained by the Released Parties, except that it will apply to any
severance benefits that otherwise might be payable outside of the
Termination Agreement, or C) any claim to which I am entitled to
indemnification from Uni-Marts for any acts or omissions in my
capacity as an officer of Uni-Marts, except for criminal wrongdoing
and acts outside the scope of my employment.
2. I acknowledge that I have carefully read and fully
understand the provisions of this General Release Agreement, that I
have had twenty-one (21) days from the date I received a copy of this
General Release Agreement in which to consider entering into this
General Release Agreement that if I sign and return this General
Release Agreement before the end of that twenty-one (21) day period
then I will have voluntarily waived my right to consider the
Agreement for the full twenty-one (21) days and that I have executed
this General Release Agreement voluntarily and with full knowledge of
its significance, meaning and binding effect. I also acknowledge
that Uni-Marts has advised me in writing to consult with an attorney
of my own choosing with regard to entering into this General Release
Agreement and that I have done so.
3. I acknowledge that I may revoke this General Release
Agreement within seven (7) days of my execution of this document by
submitting a written notice of my revocation to The Secretary of
Uni-Marts at Uni-Marts. I also understand that this General Release
Agreement shall not become effective or enforceable until the
expiration of that seven (7) day period.
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4. I acknowledge that in my decision to enter into this
General Release Agreement, I have not relied on any representations,
promises or agreements of any kind, including oral statements by
representatives of Uni-Marts, except as set forth in this General
Release Agreement, the General Release Agreement executed by
Uni-Marts or in the Termination Agreement.
IN WITNESS WHEREOF, and with the intention of being
legally bound hereby, I have executed this General Release Agreement
on the 28th day of November, 1997.
/S/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Sworn to and subscribed
before me this 28 day
of November, 1997
/S/ N. XXXXXXX XXXXXXX
------------------------
Notary Public
Notarial Seal
N. XXXXXXX XXXXXXX, Notary Public
State College Boro, Centre County
My Commission Expires July 20, 2001
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EXHIBIT B
GENERAL RELEASE AGREEMENT
-------------------------
UNI-MARTS, INC., for itself, and its subsidiaries and
affiliates, and each of their directors, and officers and each of
their successors and assigns, if any, ("Uni-Marts"), for and in
consideration of the rights under the Termination Agreement between
the undersigned and Xxxxxxx Xxxxxxx ("Xxxxxxx") dated November 28,
1997 (the "Termination Agreement") hereby agrees as follows:
1. Uni-Marts waives, releases and forever discharges
Markham and his heirs, executors, administrators and assigns
(hereinafter the "Released Parties"), of and from any and all past or
present causes of action, suits, agreements or other claims which it
has, ever had or hereinafter may arise against the Released Parties
upon or by reason of any matter, cause or thing whatsoever,
including, without limitation, any federal or state law, regulation
or ordinance, or public policy, contract or tort law whether having
any bearing whatsoever on Markham's employment and it promises not to
file a lawsuit to assert any such claims; provided, however, that
this release shall not apply to the obligations set forth in the
Termination Agreement or for any act involving criminal wrongdoing or
outside the scope of his employment.
2. Uni-Marts acknowledges that it has carefully read and
fully understands the provisions of this General Release Agreement,
that it has had sufficient time in which to consider entering into
this General Release Agreement and that it has executed this General
Release Agreement voluntarily and with full knowledge of its
significance, meaning and binding effect. Uni-Marts also
acknowledges that it has consulted with an attorney of its own
choosing with regard to entering into this General Release Agreement.
3. Uni-Marts acknowledges that in its decision to enter
into this General Release Agreement, it has not relied on any
representations, promises or agreements of any kind, including oral
statements by Markham or his representatives, except as set forth in
this General Release Agreement, in the Termination Agreement or in
the General Release Agreement executed by Markham.
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IN WITNESS WHEREOF, and with the intention of being
legally bound hereby, an authorized representative of Uni-Marts has
executed this General Release Agreement on the 28th day of November,
1997.
UNI-MARTS, INC.
BY: /S/ XXXXX X. SAHAKAIN, C.E.O.
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Sworn to and subscribed
before me this 28 day
of November, 1997
/S/ N. XXXXXXX XXXXXXX
------------------------
Notary Public
Notarial Seal
N. XXXXXXX XXXXXXX, Notary Public
State College Boro, Centre County
My Commission Expires July 20, 2001
