Exhibit 10
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is entered into as
of the 12th day of November, 2002 (the "Effective Date"), by and between DOLLAR
GENERAL CORPORATION, a Tennessee corporation (the "Company"), and XXXXXX X.
XXXXXXX ("Executive").
WHEREAS, Executive presently serves as the President and Chief Operating
Officer of the Company pursuant to that certain letter agreement, dated May 14,
2001, executed by each of Executive and Xxx Xxxxxx, Xx. (the "Original
Agreement");
WHEREAS, the Company's Board of Directors (the "Board") is considering
candidates (including Executive) for the position of Chief Executive Officer of
the Company, and desires Executive to temporarily assume the responsibilities of
Chief Executive Officer (such interim position hereinafter referred to as
"Acting CEO"), in addition to Executive's responsibilities as President and
Chief Operating Officer ("COO":), until such time as the Company has hired an
individual to permanently fulfill the duties of Chief Executive Officer (such
permanent position hereinafter referred to as "Permanent CEO");
WHEREAS, the Company further desires to ensure Executive's continued
employment for a reasonable Transition Period following the hiring of a
Permanent CEO other than Executive;
WHEREAS, Executive is willing to serve as Acting CEO and, if he is not
retained as Permanent CEO, during a reasonable Transition Period thereafter, to
continue to serve as President and COO of the Company; and
WHEREAS, the Parties hereto contemplate that Executive may remain employed
by the Company after the Term hereof (as defined below), but that any such
continued employment will not be governed by this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Executive (collectively, the "Parties")
agree as follows:
1. Term.
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The term of Executive's employment under this Agreement (the "Term") shall
be the period commencing on the Effective Date and ending at the end of the
Post-Transition Period (as defined in Section 8(d) below).
2. Employment. Executive agrees to be employed by Company upon the terms and
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subject to the conditions set forth in this Agreement.
(a) Employment as Acting CEO. Throughout the period beginning on the
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Effective Date and ending on the date thereafter that the Company employs a
Permanent CEO (the "Interim Period"), Executive shall serve as Acting CEO
of the Company.
The Parties hereby acknowledge and agree that the Interim Period is
not expected to exceed (and may be substantially less than) six months;
provided, however, that Executive hereby covenants to and agrees with the
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Company that Executive shall continue to serve as Acting CEO for such
longer period of time as the Company shall reasonably require, not to
exceed one year.
(b) Employment as President, Chief Operating Officer and Otherwise;
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Transition Period. Throughout the Interim Period and, thereafter, for the
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Transition Period (as defined below), Executive shall continue to serve as
President and Chief Operating Officer of the Company.
Notwithstanding any other provision of this Agreement to the contrary,
Executive hereby agrees with and covenants to the Company that Executive
shall continue to serve the Company as President and COO for the 180-day
period following the Interim Period (if the Company hires a Permanent CEO
other than Executive), or such shorter period of time as the Board shall
determine is necessary or appropriate for the best interests of the Company
and for a smooth transition to the Permanent CEO (the "Transition Period").
In any event, the Board shall give Executive written notice of the
expiration of the Transition Period if it is to be less than 180 days. The
Transition Period shall, in no event, exceed 180 days from the end of the
Interim Period.
(c) Performance of Duties. In his capacity as Acting CEO, Executive
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shall (i) be responsible for the general management of the operations of
the Company, (ii) faithfully and diligently perform such duties required of
a CEO and customarily performed by a person acting in the capacity of CEO
and those that may be designated by the Board consistent with that title
and position, and (iii) report directly to the Board or to a Committee
designated by the Board.
In his capacities as President and COO, Executive (i) shall faithfully
and diligently perform such duties customarily performed by a person acting
in such respective capacities and those that may be designated by the Board
or, when employed, by the Permanent CEO, consistent with such respective
titles and positions, and (ii) shall report directly to the Permanent CEO.
Executive shall devote his full working time, attention, skills, and
best efforts to advance the Company's business and affairs and perform his
duties under this Agreement. Executive may, however, engage in civic,
charitable, and professional or trade activities so long as those
activities do not interfere with the performance of his duties under this
Agreement.
(d) Place of Performance. During the Term, Executive shall be based in
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Nashville, Tennessee, or at such other location within a 30-mile radius of
Nashville,
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Tennessee. Company shall not request or require Executive to relocate his
principal place of employment outside of a 00-xxxx xxxxxx xx Xxxxxxxxx,
Xxxxxxxxx.
3. Termination of Prior Employment Arrangement. By the execution of this
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Agreement, Executive and the Company hereby acknowledge and agree that the
employment arrangement heretofore existing between Executive and the Company, as
evidenced by the Original Agreement or otherwise, shall end and shall be
replaced and superseded in all respects by the terms of this Agreement, such
that the Original Agreement (or any other document or arrangement regarding the
Parties' employment arrangement prior to the execution and delivery of this
Agreement) shall be deemed terminated and of no further force or effect
(including, without limitation, the termination of any severance pay or other
post-termination rights contemplated therein).
4. Compensation.
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(a) Base Salary. Company agrees to pay to Executive a base salary of
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no less than an annual rate of $625,000 ("Base Salary"), payable in twice
monthly installments consistent with the Company's payroll practices.
During the Interim Period, Executive shall receive an additional $8334 a
month in Base Salary.
(b) Performance Bonus. Executive shall continue to participate in the
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Management Incentive TEAMSHARE bonus program upon the same terms and
conditions of his participation in such program immediately prior to the
Effective Date, subject in any event to any changes to such program that
may from time to time be lawfully effected by the Board.
(c) Participation in Welfare, Savings and Retirement Plans. Executive
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shall be entitled to participate in the Company's 401K Retirement and
Savings Plan, Supplemental Executive Retirement Plan, Compensation Deferral
Program, and any other employee benefit plans and arrangements offered
generally to active senior executives of the Company as of the Execution
Date, as well as any other health and insurance, disability, and other
welfare benefit plans, or savings, deferred compensation, retirement or
pension, or death benefit plans or arrangements provided or available
generally to active senior executives of the Company in effect from time to
time during the Term. To the extent not offered generally to active senior
executives of the Company, Executive shall be entitled to participate in
any other insurance benefits to which he was entitled immediately prior to
the Effective Date pursuant to his employment as President and COO
(collectively, the "Benefit Plans").
Executive's participation in any or all of the Benefit Plans, however,
shall be subject to the terms and conditions of the Benefit Plans as they
may hereafter be amended or restated (or discontinued) by the Company,
including Executive's satisfaction of all applicable eligibility
requirements and vesting provisions of the Benefit Plans. The Company shall
not have any obligation under this Agreement to continue any or all of the
Benefit Plans. Executive hereby acknowledges receipt of written plan
materials distributed to participants or prospective participants in the
currently effective Benefit Plans.
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(d) Stock Options. Executive shall be entitled to participate in any
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stock option, performance share, phantom stock, or similar long-term
stock-based incentive plan provided or available generally to active senior
executives of the Company in effect from time to time during the Term, each
as amended from time to time. The extent to which Executive shall
participate in those option plans or any such other plan shall be
determined by the Board or any committee thereof authorized to make such
determinations on behalf of the Board.
(e) Withholding. All compensation payable to Employee pursuant to this
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Agreement shall be subject to, and Company shall deduct and withhold, all
applicable federal, state and local withholding, employment, social
security and other similar taxes.
5. Reimbursement of Business and Other Expenses. Executive is authorized to
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incur reasonable travel and business expenses that are consistent with his
position and incurred in carrying out his duties and responsibilities under this
Agreement, and Company shall promptly reimburse him for all such travel and
business expenses incurred in connection with carrying out the business of the
Company, subject to reasonable documentation in accordance with the policies of
Company.
6. Perquisites. During the Term, Executive shall be entitled to participate in
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all of Company's executive fringe benefits to the same extent of Executive's
participation in such benefit arrangements immediately prior to the Effective
Date, in each case in accordance with the terms and conditions of such
arrangements as are in effect from time to time. Executive is also entitled to
reimbursement from Company for, or Company's payment of, all reasonable
attorneys' and other professional fees and expenses incurred by or on behalf of
Executive relating in any manner to the negotiation and preparation of this
Agreement, including (without limitation) the conditions to Executive's
employment relationship with Company under this Agreement. The benefits
described in this Section 6 shall be referred to, collectively, as the
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"Perquisites."
7. Vacation. Executive shall be entitled to two weeks' paid vacation each
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calendar year. Company shall pay Executive any earned and unused vacation upon
the termination of Executive's employment.
8. Termination of Employment. The following paragraphs describe circumstances
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under which Executive's employment may terminate. The final day of his
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employment under any circumstance shall be the "Employment Termination Date."
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(a) Death. Executive's employment shall terminate, without the need
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for any action by the Company, upon Executive's death.
(b) Disability. If a Disability (as defined below) of Executive occurs
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during the Term, the Company may notify Executive of the Company's
intention to terminate Executive's employment under this Agreement for
Disability. In that event, the Executive's employment shall terminate
effective on the date such notice of termination is given to Executive (the
"Disability Effective Date"). In this Agreement "Disability" means:
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(i) a long-term disability, as defined in the Company's
applicable Benefit Plan as then in effect; or
(ii) Executive's inability reasonably to perform his duties under
this Agreement because of any medically determinable physical or
mental impairment that (x) can reasonably be expected to result in
death or (y) has lasted or can reasonably be expected to last for at
least 30 consecutive days. In this circumstance, the existence of a
Disability shall be determined by the Board or the Permanent CEO, in
its or his sole and absolute discretion, upon receipt of competent
medical advice from a qualified physician selected by or acceptable to
the Board or the Permanent CEO. In this circumstance, Executive shall,
if there is any question about his Disability, submit to a physical
examination by a qualified physician selected by the Board or the
Permanent CEO.
(c) Termination by the Company.
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(i) Termination for Cause. The Company may terminate Executive's
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employment under this Agreement for Cause (as defined below) as
follows:
(A) Cause Defined. "Cause" means any of: (1) Executive's
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failure to perform his duties under this Agreement or in
accordance with the Company's employment policies and procedures,
as reasonably determined by the Board in good faith, other than
any such failure resulting from a Disability, (2) any willful act
or omission by Executive that, in the good-faith judgment of the
Board, has had or is likely to have a material adverse impact on
the Company's business interests or reputation, (3) Executive is
convicted of, or pleads nolo contendere to, any allegation of,
fraud, embezzlement, theft, or other criminal conduct (excluding
a traffic violation) that, in the good-faith judgment of the
Board, has had or is likely to have a material adverse impact on
Executive's ability to perform his executive responsibilities, or
(4) a breach of any of Executive's covenants in Sections 11 and
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12 (collectively, the "Restrictive Covenants").
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(B) Required Notice. A termination for Cause shall be
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effective only if the Chairman of the Board or, at the Board's
instruction, the Permanent CEO, has given Executive written
notice of the Board's intention to terminate for Cause,
describing Executive's acts or omissions that are believed to
constitute Cause. Termination for Cause shall be effective
immediately upon delivery of notice of termination to Executive,
or such later time as may be stated in such notice.
(ii) Without Cause. The Company may terminate Executive's
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employment with the Company, at any time for any (or no) reason, prior
to expiration of the Term of this Agreement, upon at least 30 days'
written notice to Executive. Such termination shall be effective upon
the expiration of the notice period specified in the notice of
termination.
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(d) Post-Transition Resignation. At any time during the 90-day period
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beginning upon the expiration of the Transition Period (the
"Post-Transition Period"), the end of such Post-Transition Period likewise
constituting the expiration of the Term of this Agreement, Executive may
terminate his employment, for any (or no) reason, upon written notice to
the Permanent CEO (a "Post-Transition Resignation"). In such event,
Executive shall be entitled to the payments and benefits set out in Section
9(b) below. For the avoidance of doubt, if this Agreement has not otherwise
terminated, the Parties may agree during the Transition Period or
Post-Transition Period that Executive's employment with the Company will
continue after expiration of the Term under terms and conditions mutually
agreed.
(e) Executive May Not Voluntarily Terminate Employment Prior to
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Expiration of Transition Period. In light of his importance to the Company
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during each of the Interim Period and the Transition Period, Executive is
not entitled to voluntarily terminate his employment with Company at any
time before the expiration of the Transition Period (as such period shall
be determined by the Board or in accordance with the terms of Section 2(b)
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above). If Executive does voluntarily resign his employment prior to
expiration of the Transition Period (an "Improper Resignation"), he shall
not be entitled to any of the benefits or payments set out in Section 9(b)
below.
(f) Hiring of Executive to Permanent CEO Position. In the event that
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the Board shall, in good faith, offer Executive the Permanent CEO position,
the Parties agree that, upon Executive either accepting or declining the
offer, this Agreement shall be deemed terminated and of no further force or
effect. If Executive declines a good faith, bona fide offer, he shall not
be entitled to the payments and benefits described in Section 9(b) below.
9. Rights and Obligations upon Termination of Employment.
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(a) Termination for Cause, Death, Disability, Improper Resignation,
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Executive's decline of Offer to Become Permanent CEO or Upon Expiration of
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Term. If Executive's employment under this Agreement is terminated for
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cause, death, disability, Improper Resignation, his refusal of a good faith
offer to become Permanent CEO, or at the expiration of the Term, he shall
be entitled to (i) any amounts payable to Executive under the terms of any
of the applicable Benefit Plans in effect on the Employment Termination
Date; (ii) any amounts due but not yet paid to Executive by the Company and
(iii) any other benefits or payments to which he is entitled as a matter of
law. He shall not be entitled to any of the additional benefits set out in
Section 9(b) below.
(b) Termination without Cause; Resignation during Post-Transition
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Period. If Executive's employment is terminated (x) by the Company without
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Cause prior to the expiration of the Term (it being understood by the
Parties that termination by expiration shall not constitute termination
without Cause) or (y) as the result of Executive's resignation during the
Post-Transition Period, then Executive shall be entitled to the following:
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(i) Continuation of Executive's Base Salary as of the date
immediately preceding the Employment Termination Date for twenty-four
consecutive months following the termination, payable in accordance
with the Company's normal payroll times and procedures; and
(ii) Executive shall be entitled to participate, at his election,
in the Company's Retiree Medical Plan. For the twenty-four month
period after the Employment Termination Date, he may do so at the same
cost to him as he paid for health care insurance coverage under the
Company's medical insurance plan immediately prior to the Employment
Termination Date and the Company shall reimburse him for the
difference in premium (grossed up for taxes), if any. Thereafter, he
may continue his participation in the Retiree Medical Plan at his own
cost; and
(iii) For the Dental, Vision, Disability and Life Insurance
Benefit Plans, if Executive elects and maintains (A) continued
coverage under the Consolidated Omnibus Benefits Reconciliation Act of
1985 and corresponding regulations ("COBRA"), (B) continuation
coverage under any similar provision of any state insurance law (in
either event, a "Continued Coverage Plan") and/or (C) conversion or
porting of the policy, then for up to a maximum of twenty-four months
after the Employment Termination Date, reimbursement to Executive of
the difference between (x) the premiums paid or payable by Executive
for coverage under the applicable Continued Coverage Plan or
converted/ported plan for himself and his dependents (if any) and (y)
the premiums that Executive would have paid for comparable coverage
under the applicable Benefit Plan if Executive's employment under this
Agreement had not ceased (in either case, such payment shall be
grossed up for taxes); except that these payments shall expire or
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terminate immediately upon Executive's becoming eligible for similar
coverage under another employer's benefits plan or policy; and
(iv) For the twenty-four month period following the Employment
Termination Date, continuation of those Perquisites described in
Section 6 above, as long as they are offered to senior executives of
the Company, except that these Perquisites shall expire or terminate
immediately upon Executive's becoming eligible for similar Perquisites
at another employer; and
(v) If TeamShare Bonus payments are made to participants for
Fiscal Year 2002, Executive shall be entitled to participate in the
TeamShare Bonus program for that year based on his base salary at the
Fiscal Year end or, if earlier, his Employment Termination Date. To
the extent TeamShare Bonuses are paid by the Company to participants
for the two fiscal years (post 2002) during which the twenty-four
month salary continuation period referenced in 9(b)(i) above falls,
Executive shall be entitled to receive payment(s) from the Company
equal to the bonus payment he would have received under TeamShare for
that year had he still
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been employed at the time of the bonus payment; provided, however,
that, if there is no TeamShare Bonus payment made to participants for
either of those two fiscal years, then Company shall pay Executive the
equivalent of a "Level 1" Bonus Payment as defined in the TeamShare
Bonus Plan for each such fiscal year based on his base salary at the
Employment Termination Date; and
(vi) In the event that Executive (or, in the event of Executive's
death, Executive's dependents) shall move his residence more than 100
miles from Nashville, Tennessee within 18 months after the Employment
Termination Date, (A) reimbursement of closing costs related to any
new home purchase, up to a maximum amount equal to two percent (2%) of
the purchase price of such new home, and (B) reimbursement of
documented expenses reasonably related to such change of residence, up
to a maximum amount of $55,000 (excluding the amount of closing costs
reimbursed pursuant to the immediately preceding clause (A)); or, in
the alternative, at the discretion of Executive, the Company will
purchase Executive's primary residence in Nashville at a price agreed
upon by the parties. If the parties cannot agree on a price, the
Company shall pay for three independent appraisals (one by a certified
appraiser selected by Company; one by a certified appraiser selected
by Executive; and one by a certified appraiser agreed to by both
parties). The purchase price paid by the Company shall be the average
of the three appraisals.
Any payments or reimbursements under this Section 9(b) shall not be deemed
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the continuation of Executive's employment for any purpose. The Company's
obligations under this Section 9(b) will not negate or reduce (A) any obligation
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that the Company may have to Executive under COBRA, (B) any amounts due but not
yet paid to Executive by the Company, or (C) any amounts payable to Executive,
or any other rights that Executive may have, under the terms of any of the
applicable Benefit Plans in effect on the Employment Termination Date; except
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that any disability payments to Executive, or any death benefits to Executive's
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estate, heirs, or legatees, under any of the applicable Benefit Plans shall be
credited to and offset against the amounts payable under this Section 9(b).
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Further, the Company may, at any time and in its sole discretion, make a
lump-sum payment of all amounts, or all remaining amounts, due to Executive
under Section 9(b)(i).
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(c) General Release; Compliance with Restrictive Covenants. The
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payment or provision of any amounts or benefits under this Section 9(b)
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shall be conditioned upon both (i) the Company's receipt of an irrevocable
Settlement Agreement, General Release, and Covenant Not to Xxx, in
substantially the form of Addendum A attached to this Agreement (the
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"Release"), that is executed and performed by Executive (or in the case of
Executive's death, his estate, heirs, or legatees), (ii) Executive's
compliance with the terms of the Release and with the Restrictive Covenants
during the applicable time periods set forth therein. The Company may
discontinue or reduce the amounts or benefits under this Section 9(b) if
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the Company reasonably believes, or establishes by any legal or injunctive
proceeding permitted by the terms of this Agreement, that there is or has
been any violation by Executive of the Release or any of the Restrictive
Covenants. Any such discontinuance or reduction shall not preclude the
Company from seeking any legal or injunctive relief permitted by the terms
of this Agreement.
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(d) No Obligation to Mitigate; Discontinuance of Severance Benefits in
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Certain Circumstances.
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(i) Executive shall not be obligated to seek or secure new
employment or to become self-employed after the Employment Termination
Date. To the extent Executive secures full time employment during the
24 month period after the Employment Termination Date, (x) his
entitlement to any of the Benefits or Perquisites set forth in
sections 9(b)(iii) and (iv) above shall be offset as described
therein, and (y) his entitlement to any additional bonus payments
under Section 9(b)(v) shall cease. Other than as provided in Section
9(d)(ii) below, Executive shall retain those salary continuation
benefits described in Section 9(b)(i) above.
(ii) Notwithstanding the foregoing clause (i), each of the
severance benefits described in Section 9(b) above shall terminate
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immediately upon Executive's association or affiliation with,
employment by, or taking of any financial interest in (whether
directly or indirectly, as principal, agent, manager, employee,
partner, shareholder, director, officer, consultant or otherwise) any
discount retailer, including, without limitation but solely for
purposes of example, WalMart Stores, Family Dollar Stores, Fred's, The
99 Cents Store or Dollar Tree Stores; provided, however, that
Executive's ownership of less than five percent (5%) of any class of
publicly traded securities of an entity shall not constitute a breach
of this Section 9(d).
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(e) Tax Limitation on Severance Benefits. Notwithstanding anything in this
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Agreement or elsewhere to the contrary, if any payment or benefit received,
to be received, or deemed received (under applicable tax law) by Executive
under this Agreement or under any other agreement, plan, practice, or
policy of the Company would (i) constitute a "parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), or any similar or successor provision to Section 280G, and
(ii) but for this Section 9(e), be subject to the excise tax imposed by
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Section 4999 of the Code, then such payment or benefit shall be reduced to
the largest amount which would result in no portion of such payment or
benefit being subject to the excise tax imposed by Section 4999 of the
Code.
10. [Intentionally Deleted]
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11. Confidential Information. Executive acknowledges that, as a result of his
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relationship with the Company, he has and will continue to have access to the
trade secrets and confidential information and proprietary know-how of the
Company (which in the Restrictive Covenants includes the Company's subsidiaries
and affiliates) or its customers or clients that is confidential, proprietary,
or a trade secret ("Confidential Information"). At all times, both during and
after the Term, Executive shall keep and retain in confidence and not disclose
to any other person, except as required in the course of his employment with the
Company, or use for his personal benefit or the benefit of any other person, any
Confidential Information.
(a) Examples of Confidential Information. Confidential Information
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includes
(i) the Company's standard operating procedures, processes, pricing
practices, formula,
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know-how, or scientific, technical, or product information, whether or not
patentable or otherwise protectable, which is of value to the Company and
not generally known by the Company's competitors, (ii) all confidential
information obtained from other persons, vendors, and service providers
concerning their products, pricing, business arrangements with the Company,
businesses, or equipment specifications, (iii) confidential business
information of the Company, including marketing and business plans,
strategies, projections, business opportunities, vendor information,
identities, or contact information, sales and costs information, internal
financial statements or reports, profit, loss, or margin information, and
customer or client price information, and (iv) other information designated
by the Company or deemed by law to be confidential information.
(b) Confidentiality Policies; Return of Property. During the Term
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Executive shall comply with all employee policies and procedures
established by the Company to protect Confidential Information. At the
Employment Termination Date, and otherwise at the Company's request,
Executive shall promptly return to the Company all Confidential Information
and other property of the Company (tangible and intangible) then in
Executive's possession or control.
12. Noncompete - Executive agrees that, during the Term and for twenty four
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months following the Employment Termination Date, he will not, directly or
indirectly, compete with the Company by providing to any company that operates
in states in which Dollar General operates at the Employment Termination Date
and that is a discount retailer, including, without limitation but solely for
purposes of example, WalMart Stores, Inc., Family Dollar Stores, Fred's, The 99
Cents Store or Dollar Tree Stores, services substantially similar to the
services provided by Executive during his last two years of employment with
Company. Executive shall not be obligated to abide by the foregoing covenant if
the Company defaults in the payment of any severance compensation or benefits.
13. Nonsolicitation. In consideration of the mutual promises in this Agreement,
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the sufficiency of which is acknowledged by the Parties, Executive agrees that,
during the Term and for 24 consecutive months after the Employment Termination
Date, Executive will not, directly or indirectly, as principal, agent, manager,
employee, partner, shareholder, director, officer, consultant, or otherwise hire
or employ any current or former (defined as employed by the Company within the
90 days preceding the Employment Termination Date) employee of the Company or
any of the Company's subsidiaries or affiliates that are known by Executive to
be such, or use or disclose to any person, partnership, association, corporation
or other entity any information obtained while employed by the Company
concerning the names, addresses, salaries, or performance evaluations of
employees of the Company, or any of its subsidiaries or affiliates. The Parties
intend the above restrictions on competition to be completely severable and
independent, and any invalidity or unenforceability of any one or more such
restrictions shall not render invalid or unenforceable any one or more of the
other restrictions.
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14. Reformation; Severability; Injunctive Relief.
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(a) Reformation. The Parties intend all provisions of the Restrictive
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Covenants to be enforced to the fullest extent permitted by law.
Accordingly, should a court of competent jurisdiction determine that the
scope of any provision of the Restrictive Covenants is too broad to be
enforced as written, based on their duration, scope of activities, or
otherwise, the Parties intend that the court reform the provision to such
narrower scope as it determines to be reasonable and enforceable. The
Parties agree that each of the agreements set forth in the Restrictive
Covenants constitutes a separate agreement independently supported by good
and adequate consideration, shall be severable from the other provisions of
this Agreement, and (with this Section 13) shall survive the expiration or
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termination of this Agreement or Executive's employment under this
Agreement. Executive agrees that the Company shall be entitled to enforce
any and all of Executive's covenants contained in the Restrictive
Covenants, regardless of the existence of any claim or cause of action of
Executive against the Company, whether predicated on this Agreement or
otherwise, and such claim or cause of action shall not constitute a defense
to the enforcement by the Company of any of the Restrictive Covenants.
(b) Severability. If any provision of this Agreement is held to be
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illegal, invalid, or unenforceable under present or future laws, (i) such
provision shall be fully severable, (ii) this Agreement shall be construed
and enforced as if such illegal, invalid, or unenforceable provision never
constituted a part of this Agreement, and (iii) the remaining provisions of
this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added as part of this
Agreement a provision as similar in its terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and
enforceable.
(c) Injunctive Relief. Executive acknowledges the difficulty in
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forecasting damages arising from the breach of any of the Restrictive
Covenants and that the Company may be irreparably harmed thereby.
Therefore, Executive agrees that the Company shall be entitled to elect to
enforce each of the Restrictive Covenants by means of injunctive relief or
an order of specific performance and that such remedy shall be available in
addition to all other remedies available at law or in equity to the
Company, including the recovery of damages from Executive's agents or
affiliates involved in such breach.
15. Disputes. Any dispute or question arising out of or relating to this
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Agreement, that cannot otherwise be resolved, shall be resolved by proceedings
before any court of proper jurisdiction in accordance with this Agreement.
16. Successors and Assigns; Survival of Rights and Obligations.
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(a) Binding Agreement; Executive's Personal Agreement. This Agreement
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shall be binding upon and inure to the benefit of Executive and his heirs
and legal
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representatives and the Company and its successors and assigns. Executive's
rights and obligations under this Agreement are personal and may not be
assigned or transferred in whole or in part by Executive (except that his
rights may be transferred upon his death by will, trust, or the laws of
intestacy).
(b) The Company's Successor. The Company will require any successor to
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all or substantially all of the business and assets of the Company (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no
such succession had taken place; except that no such assumption and
agreement will be required if the successor is bound by operation of law to
perform this Agreement. In this Agreement, the term "Company" shall include
any successor to the Company's business and assets that assumes and agrees
to perform this Agreement (either by agreement or by operation of law).
(c) Survival. The respective rights and obligations of the Parties
---------
under this Agreement (including Sections 8 through 14) shall survive the
---------------------
expiration or termination of the Term to the extent necessary to give full
effect to those rights and obligations.
17. Additional Obligations. During and after the Term, Executive shall, upon
-----------------------
reasonable notice from the Company, furnish the Company with such information as
may be in Executive's possession, and cooperate with the Company as may
reasonably be requested by the Company, in connection with any legal or
governmental proceedings in which the Company or any of its affiliates is or may
become a party. During his employment hereunder, the reimbursement of
Executive's expenses shall be governed by Section 5; after termination of his
----------
employment, the Company shall reimburse Executive for his reasonable expenses in
fulfilling his obligations under this Section 16.
-----------
18. Miscellaneous.
--------------
(a) Notices. Any notice, consent, demand, request, approval, or other
--------
communication to be given under this Agreement by one Party to the other
("Notice") must be in writing and must be either (i) personally delivered,
(ii) mailed by registered or certified mail, postage prepaid with return
receipt requested, (iii) delivered by same-day or overnight courier
service, or (iv) delivered by facsimile transmission, in any event to the
address or number set forth below or to such other address or number as may
be designated by either or both of the Parties from time to time in
accordance with this Section 17(a):
-------------
If to the Company: Dollar General Corporation
Attn: General Counsel's Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: 615/855-5180
12
If to Executive: At the address beneath Executive's
signature hereto.
Notices delivered personally or by courier service shall be deemed given
and received as of actual receipt. Notices mailed as described above shall
be deemed given and received three business days after mailing or upon
actual receipt, whichever is earlier. Notices delivered by facsimile
transmission shall be deemed given and received upon receipt by the sender
of the transmission confirmation. If Executive's Notice information
changes, he will immediately notify Company.
(b) Entire Agreement. This Agreement, including the Addenda (which are
------------------
integral parts of this Agreement), supersedes any and all other agreements and
understandings of any kind, either oral or written, between the Parties with
respect to the subject matter of this Agreement and contains all of the
covenants and agreements between the Parties with respect to the subject matter
of this Agreement.
(c) Modification. Except as stated in the next sentence, no change or
-------------
modification of this Agreement shall be valid or binding upon the Parties, nor
shall any waiver of any term or condition be so binding, unless the change or
modification or waiver is in writing and signed by the Parties.
(d) GOVERNING LAW; CONSENT TO FORUM. THIS AGREEMENT HAS BEEN NEGOTIATED,
---------------------------------
EXECUTED, AND DELIVERED AT, AND SHALL BE DEEMED TO HAVE BEEN MADE IN DAVIDSON
COUNTY, TENNESSEE. THIS AGREEMENT SHALL BE GOVERNED BY, ENFORCED UNDER, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE. AS PART OF THE
CONSIDERATION FOR THIS AGREEMENT, AND REGARDLESS OF ANY PRESENT OR FUTURE
DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF EXECUTIVE, EXECUTIVE HEREBY CONSENTS
AND AGREES THAT THE COURTS IN DAVIDSON COUNTY, TENNESSEE, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY JUDICIAL DISPUTES BETWEEN THE PARTIES OR
OTHER MATTERS EXPRESSLY PERMITTED BY THIS AGREEMENT TO BE LITIGATED IN A COURT.
EXECUTIVE EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT AND HEREBY WAIVES ANY OBJECTION WHICH
EXECUTIVE MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, OR
FORUM NON CONVENIENS.
---------------
(e) Counterparts. This Agreement may be executed in counterparts, each of
-------------
which constitutes an original, but all of which constitute one document.
(f) Gender. Whenever the context requires, words in this Agreement denoting
-------
gender shall include the masculine, feminine, and neuter.
13
(g) Estate. If Executive dies during his employment hereunder, any amounts
-------
due him from the Company under this Agreement as of the date of his death shall
be paid to his estate, heirs, or legatees.
(h) Waiver of Breach. Any waiver by a Party of a breach of any provision of
-----------------
this Agreement by the other Party shall not operate or be construed as a waiver
of any other or any subsequent breach.
(i) Certain Defined Terms. As used in this Agreement, (i) "person" means an
----------------------
individual or any corporation, partnership, trust, unincorporated association,
or other legal entity, whether acting in an individual, fiduciary, or other
capacity, and any government, court, or other governmental agency, (ii)
"include" and "including" shall not denote or signify any limitation, (iii)
"business day" means any Monday through Friday other than any such weekday on
which the executive offices of the Company are closed, and (iv) "Section" is a
reference to a Section in this Agreement, unless otherwise stated, and (v)
"affiliate" of a person means any other person controlling, controlled by, or
under common control with that first person (and for this purpose, "control" and
correlative terms mean the power to direct the management of the business and
affairs of a person). In addition, the use herein of "annual" or "monthly" (or
similar terms) to indicate a measurement period shall not itself be deemed to
grant rights to Executive for employment or compensation for such period.
(j) Captions and Section Headings. Captions and Section or subsection
------------------------------
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in any construction of this Agreement.
(Signature Page Follows)
14
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
The Company: DOLLAR GENERAL CORPORATION
-----------
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President, General Counsel
and Secretary
Executive: XXXXXX X. XXXXXXX
---------
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 615/463-7956
EXECUTIVE EMPLOYMENT AGREEMENT - Signature Page
DALLAS 1197233v6
15
ADDENDUM A
----------
Settlement Agreement, General Release, and Covenant Not to Xxx
--------------------------------------------------------------
[See attached]
SETTLEMENT AGREEMENT,
GENERAL RELEASE, AND COVENANT NOT TO XXX
This Settlement Agreement, General Release, and Covenant Not to Xxx
("Agreement") is made and entered into as of the _______ day of ____________,
-------------
200___, by and between Xxxxxx X. Xxxxxxx ("Executive") and Dollar General
-------------
Corporation, a Tennessee corporation (the "Company"), both of which are
---------
hereinafter collectively referred to as the "parties."
--------
Recitals
--------
WHEREAS, Executive was employed as the Company's Acting Chief Executive
Officer, President and Chief Operating Officer pursuant to the terms and
conditions of that certain Executive Employment Agreement, dated as of November
__, 2002 (the "Employment Agreement"), by and between Executive and the Company;
----------------------
WHEREAS, Executive's employment under the Employment Agreement shall
terminate or has terminated effective ___________, 200___ (the "Termination
Date"); and ------------
-----
WHEREAS, the parties desire to settle fully and finally, in the manner set
forth herein, all differences between them which have arisen, or which may
arise, prior to, or at the time of, the execution of this Agreement, including,
but in no way limited to, any and all claims and controversies arising out of
the Employment Agreement, the employment relationship between Executive and the
Company, and the cessation or termination thereof;
Agreement
---------
NOW, THEREFORE, in consideration of the Recitals and the mutual promises,
covenants and agreements set forth herein, the parties covenant and agree as
follows:
1. Executive, for himself and on behalf of his attorneys, heirs, legatees,
assigns, successors, executors, and administrators, IRREVOCABLY AND
UNCONDITIONALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES the Company, its
current and former parent, subsidiary, affiliated, and related corporations,
firms, associations, partnerships, limited liability companies, and other
entities, their successors and assigns, and the current and former owners,
members, shareholders, managers, directors, officers, partners, employees,
agents, attorneys, representatives, and insurers of said corporations, firms,
associations, partnerships, limited liability companies, and other entities, and
their guardians, successors, assigns, heirs, executors, and administrators
(hereinafter collectively referred to as the "Releasees"), from any and all
-----------
claims, complaints, grievances, liabilities, obligations, promises, agreements,
damages, causes of action, rights, debts, demands, controversies, costs, losses,
damages, and expenses (including, without limitation, attorneys' fees and
expenses) whatsoever (collectively, "Claims") under any municipal, local, state,
or federal law, common or statutory -- including, but in no way limited to,
Claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. ss.
621, et seq. -- for any actions or omissions whatsoever, whether known or
-- ----
unknown, that are
connected with or related to the Employment Agreement, the employment of
Executive by the Company, or the cessation or termination thereof, which existed
or may have existed prior to, or contemporaneously with, the execution of this
Agreement. Executive does not, however, release, acquit, or discharge the
Releasees from any Claim arising out of any nonperformance or failure to perform
by the Company of any of its obligations under this Agreement or any Claim not
connected with or related to the Employment Agreement, the employment of
Executive by the Company, or the cessation or termination thereof.
2. Executive, for himself and on behalf of his attorneys, heirs, legatees,
assigns, successors, executors, and administrators, COVENANTS NOT TO XXX OR
OTHERWISE CONSENT TO PARTICIPATE IN ANY ACTION AGAINST, any of the Releasees
based upon any of the Claims released in paragraph 1 of this Agreement.
-----------
3. Executive waives and releases forever any right or rights he might have
to employment, reemployment, or reinstatement with the Company or any of the
other Releasees, except as may be provided under the terms of this Agreement.
4. Upon the expiration of seven (7) days after Executive's execution of
this Agreement, the Company agrees to begin to pay or provide Executive the
severance payments and benefits under Section 8 of the Employment Agreement in
---------
accordance with the surviving terms of the Employment Agreement.
5. The parties hereto recognize that, by entering into this Agreement, the
Company and each other Releasee does not admit, and does specifically deny, any
violation of any local, state, or federal law, common or statutory. The parties
further recognize that this Agreement has been entered into in release and
compromise of any Claims which might be asserted by Executive in connection with
his employment by the Company, or the termination thereof, and to avoid the
expense and burden of any litigation related thereto.
6. The parties acknowledge and agree that in the event Executive materially
breaches any provisions of this Agreement, (a) Executive will indemnify and hold
the Company harmless from and against any and all resulting damages, expense, or
loss incurred by the Company (including, without limitation, attorneys' fees and
expenses), (b) Executive will immediately repay to the Company in full any
payments made to him under the provisions (including, without limitation,
paragraph 4) of this Agreement, and (c) the Company will be entitled to file
------------
counterclaims against Executive for breach of the covenant not to xxx and may
recover from Executive any payment not repaid to the Company, as required by
clause (b) of this paragraph 6, as well as any and all other resulting actual or
-----------
consequential damages.
7. One or more waivers of a breach of any covenant, term, or provision of
this Agreement by either party shall not be construed as a waiver of a
subsequent breach of the same covenant, term, or provision, nor shall it be
considered a waiver of any other then existing or subsequent breach of a
different covenant, term, or provision.
8. If any provision or term of this Agreement is held to be illegal,
invalid, or unenforceable, (a) such provision or term shall be fully severable,
(b) this Agreement shall be construed and enforced as if such illegal, invalid,
or unenforceable provision had never
constituted part of this Agreement, and (c) the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable
provision or term there shall be added automatically as a part of this Agreement
another provision or term as similar to the illegal, invalid, or unenforceable
provision as may be possible and that is legal, valid, and enforceable.
9. The parties agree that any dispute arising from or attributable to this
Agreement shall be subject to the arbitration provisions (and to the same extent
and with the same limitations) set forth in the Employment Agreement; provided,
---------
however, notwithstanding anything set forth herein or set forth in the
-------
Employment Agreement to the contrary, the Company shall have the right to xxx
for specific performance of this Agreement and for declaratory and injunctive
relief.
10. Either party may revoke this Agreement, within seven (7) days of the
date of its execution by Executive (the "Revocation Period"), by written notice
--------------------
to the other party. Executive agrees that if he revokes this Agreement, he shall
receive none of the benefits provided for under its terms or the surviving terms
of the Employment Agreement. Executive further understands and agrees that,
unless the Company receives from Executive, prior to the expiration of the
Revocation Period, written notice of his revocation of this Agreement, this
Agreement and all of its terms shall have full force and effect, and Executive
shall have forever waived his right to revoke this Agreement.
11. This Agreement and the terms of the Employment Agreement that survive
the cessation or termination of Executive's employment thereunder constitute the
entire agreement of the parties, and supersede all prior and contemporaneous
negotiations and agreements, oral or written, between the parties. All prior and
contemporaneous negotiations and agreements are deemed incorporated and merged
into this Agreement and are deemed to have been abandoned if not so
incorporated. No representations, oral or written, are being relied upon by
either party in executing this Agreement other than the express representations
of this Agreement and the terms of the Employment Agreement that survive the
cessation or termination of Executive's employment thereunder. This Agreement
cannot be changed or terminated without the express written consent of the
parties.
12. This Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee, except where preempted by federal law.
13. By executing this Agreement, Executive acknowledges that (a) this
Agreement has been reviewed with him by a representative of the Company, (b) he
has had at least twenty-one (21) days to consider the terms of the Agreement and
has considered its terms for that period of time or has knowingly and
voluntarily waived his right to do so, (c) he has been advised by the Company in
writing to consult with an attorney regarding the terms of the Agreement, (d) he
has consulted with, or has had sufficient opportunity to consult with, an
attorney of his or her own choosing regarding the terms of this Agreement, (e)
any and all questions regarding the terms of this Agreement have been asked and
answered to his or her complete satisfaction, (f) he has read this Agreement and
fully understands its terms and their import, (g) except as provided by this
Agreement, he has no contractual right or claim to the benefits described
herein, (h) the
consideration provided for herein is good and valuable, and (i) he is entering
into this Agreement voluntarily, of his own free will, and without any coercion,
undue influence, threat, or intimidation of any kind or type whatsoever.
(Signature Page Follows)
EXECUTED in Nashville, Tennessee, this ___day of _________, 2002.
EXECUTIVE:
-----------------------------
EXECUTED in Nashville, Tennessee, this ____day of _________, 2002.
DOLLAR GENERAL CORPORATION
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
