EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is made as of the
7th day of June, 2002 (the "Effective Date") between THE KROGER CO., an Ohio
corporation ("Employer"), and XXXXXXX X. XXXXXXX ("Executive").
RECITALS
A. Executive is currently serving as Executive Vice President of
Employer, and Employer desires to secure the continued employment of Executive
in accordance with this Agreement.
B. Executive is willing to continue to remain in the employ of Employer,
and any successor to Employer, on the terms and conditions set forth in this
Agreement.
C. The parties entered into a letter agreement dated as of June 27, 1991
(the "Pre-Hire Letter") under which Employer agreed to provide 15 years of
credited service under Employer's pension plan provided that Executive remain in
the employ of Employer for at least seven years, and Executive's benefits under
Employer's pension plan were to be offset by benefits payable to Executive under
pension plans of his previous employers. A copy of the Pre-Hire Letter is
attached as Exhibit A to this Agreement.
D. The parties intend that this Agreement will replace and supersede any
and all prior employment agreements between Employer and Executive, except the
Pre-Hire Letter as modified by this Agreement.
In consideration of the foregoing premises, the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged by the parties, the
parties agree as follows:
1. Employment. By this Agreement, Employer and Executive set forth the
terms of Employer's employment of Executive on and after the Effective Date. Any
prior agreements or understandings with respect to Executive's employment by
Employer are cancelled as of the Effective Date.
2. Term of Agreement. The term of this Agreement shall commence on the
Effective Date and end at 11:59 p.m. on September 27, 2004. Notwithstanding the
foregoing, the term of this Agreement is subject to termination as provided in
Section 8.
3. Duties:
A. Executive will serve as Executive Vice President of Employer or in
such other equivalent capacity as may be designated by the Board of Directors of
Employer, and he will have such responsibilities, duties and authority as are
customary for someone of that position.
B. Executive shall furnish such managerial, executive, financial,
technical, and other skills, advice, and assistance in operating Employer and
its Affiliates as Employer may reasonably request. For purposes of this
Agreement, "Affiliate" means each corporation which is a member of a controlled
group of corporations (within the meaning of section 1563(a) of the Internal
Revenue Code of 1986, as amended (the "Code")) which includes Employer.
C. Executive shall also perform such duties as are reasonably assigned to
Executive by the Board of Directors of Employer or by such officer of the
Employer to whom Executive may now or hereafter be assigned to report.
D. Executive shall devote Executive's entire time, attention, and
energies to the business of Employer and its Affiliates. The words "entire time,
attention, and energies" are intended to mean that Executive shall devote
Executive's full effort during reasonable working hours to the business of
Employer and its Affiliates. Executive shall travel to such places as are
necessary in the performance of Executive's duties.
4. Compensation.
A. Subject to Section 4.C. below, Executive shall receive a base salary
(the "Base Salary") of at least $565,000 per year, payable in equal installments
over 13 pay periods, or such other pay periods as Employer may establish for its
management and executive employees, for each year during the term of this
Agreement, subject to proration for any partial year. Such Base Salary, and all
other amounts payable under this Agreement, shall be subject to withholding as
required by law.
B. Subject to Section 4.C. below, in addition to the Base Salary,
Executive shall be entitled to receive an annual bonus (the "Bonus") (if earned)
for each calendar year for which services are performed under this Agreement.
Any Bonus for a calendar year shall be payable after the conclusion of the
calendar year in accordance with Employer's regular bonus payment policies. Each
year, Executive shall be given a Bonus target, by Employer's Compensation
Committee, of not less than $540,000, subject to terms applicable to the annual
bonus arrangements of management and executive employees generally.
C. On at least an annual basis, Executive shall be considered for Base
Salary and/or Bonus target increases. During periods of adverse business
conditions that, in the judgment of the Compensation Committee of the Board of
Directors (the "Compensation Committee"), require reductions in the salaries or
bonuses of other elected senior officers of Employer, the Compensation Committee
may reduce the amount of Executive's Base Salary or Bonus, or both, by the same
average percentage reduction applied to salaries or bonuses of such other
elected officers.
5. Expenses. All reasonable and necessary expenses incurred by Executive
in the course of the performance of Executive's duties to Employer shall be
reimbursable in accordance with Employer's then current travel and expense
policies.
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6. Benefits.
A. While Executive remains in the employ of Employer, Executive shall be
entitled to participate in and shall receive all benefits under savings and
retirement programs, welfare benefits plans, fringe benefit programs and
perquisites provided by Employer to its management and executive employees
generally.
B. Notwithstanding anything contained herein to the contrary, the Base
Salary and Bonus otherwise payable to Executive shall be reduced by any benefits
paid to Executive by Employer under any disability plans made available to
Executive by Employer.
7. Covenant Not to Compete. For purposes of this Section 7 only, the term
"Employer" shall mean, collectively, Employer and each of its Affiliates.
Executive acknowledges and agrees that, in the course of employment with
Employer or any of its Affiliates, he has been and will be entrusted with and
provided access to and gained intimate, detailed, and comprehensive knowledge of
Employer's confidential, proprietary, and trade secret information and supplier
relationships (the "Information"). Executive also acknowledges and agrees that,
to protect and preserve the Information and related goodwill, the following
covenants against certain employment are reasonably necessary and appropriate
limitations on Executive.
During the period from the Effective Date and continuing until June 18, 2006
even if such date is after the Termination Date (the "Non-competition Period"),
Executive shall not engage in any business offering services related to the
business of Employer, whether as a principal, partner, joint venturer, agent,
employee, salesman, consultant, director or officer, where such engagement would
involve Executive (i) in any business activity in competition with the retail
business conducted by Employer during the three years preceding the Termination
Date or (ii) in any business activity that provides retail food services or
retail drug/pharmaceutical services. This restriction shall be limited to the
geographical area where Employer is then engaged in such competing business
activity or to such other geographical area as a court shall find reasonably
necessary to protect the goodwill, business and Information of the Employer. For
purposes of this Agreement, the "Termination Date" means the date on which
Executive's employment as an executive under this Agreement terminates for any
reason.
During the Non-competition Period (or if this period is unenforceable by
law, then for such period as shall be enforceable), Executive shall not
interfere with or adversely affect, either directly or indirectly, Employer's
relationships with any person, firm, association, corporation or other entity
which is known by Executive to be, or is included on any listing to which
Executive had access during the course of employment as, a customer, client,
supplier, consultant or employee of Employer, and Executive shall not divert or
change, or attempt to divert or change, any such relationship to the detriment
of Employer or to the benefit of any other person, firm, association,
corporation or other entity.
Executive shall not, during or at any time within the Non-competition
Period, induce or seek to induce, any other employee of Employer to terminate
his or her employment relationship with Employer.
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8. Termination.
A. (i) Employer or Executive may terminate this Agreement upon
Executive's failure or inability to perform the services required hereunder over
a period of one hundred twenty consecutive working days during any twelve
consecutive month period (a "Terminating Disability"), because of any physical
or mental infirmity for which Executive receives disability benefits under any
disability benefit plans made available to Executive by Employer (the
"Disability Plans").
(ii) If Employer or Executive elects to terminate this Agreement in
the event of a Terminating Disability, such termination shall be effective
immediately upon the giving of written notice by the terminating party to the
other.
(iii) Upon termination of this Agreement on account of a Terminating
Disability, Employer shall pay Executive Executive's accrued compensation
hereunder, whether Base Salary, Bonus or otherwise (subject to offset for any
amounts received pursuant to the Disability Plans), to the Termination Date. For
as long as such Terminating Disability may exist, Executive shall continue to be
an employee of Employer for all other purposes, and Employer shall provide
Executive with disability benefits and all other benefits according to the
provisions of the Disability Plans and any other Employer plans in which
Executive is then participating.
(iv) If the parties elect not to terminate this Agreement upon an
event of a Terminating Disability and Executive returns to active employment
with Employer prior to such a termination, or if such disability exists for less
than one hundred twenty consecutive working days, the provisions of this
Agreement shall remain in full force and effect.
B. This Agreement terminates immediately and automatically on the death
of Executive, provided, however, that Executive's estate shall be paid
Executive's accrued compensation hereunder, whether Base Salary, Bonus or
otherwise, to the date of death.
C. Employer may terminate this Agreement immediately, upon written notice
to Executive, for Cause, and Employer shall pay Executive Executive's accrued
compensation hereunder, whether Base Salary, Bonus or otherwise (subject to
offset for any amount of damages suffered by Employer as a result of Executive's
actions or omissions) to the Termination Date. For purposes of this Agreement,
"Cause," when used in connection with the termination of Executive's employment
by Employer, shall mean the occurrence of any of the following events: (i)
Executive's extreme misconduct, including reckless or willful destruction of
Employer property, unauthorized disclosure of confidential information or
sexual, racial or other actionable harassment; (ii) Executive's conviction of or
plea of nolo contendere to a felony or other crime involving moral turpitude;
(iii) Executive's illegal, immoral, dishonest or fraudulent conduct in
connection with the performance of his duties with Employer that results in
material harm to the business reputation of Employer or subjects Employer to
material financial loss or material loss of business; or (iv) the willful and
continued failure by Executive to substantially perform Executive's duties under
this Agreement (other than any such failure resulting from Executive's
incapacity due to physical or mental illness) after the Board of Directors or
the Chief Executive Officer has delivered to Executive a written demand for
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substantial performance, which demand specifically identifies the manner in
which Executive has not substantially performed his duties.
D. This Agreement otherwise may terminate for any of the following
reasons (a "Qualifying Termination"):
(i) Employer may terminate this Agreement immediately, upon written
notice to Executive, for any reason other than those set forth in Sections 8.A.,
B. and C.
(ii) Executive may terminate this Agreement in the event that there
is a Change in Control and Executive's employment with Employer is actually or
constructively terminated by Employer within one year after the Change in
Control for any reason other than those set forth in Sections 8.A., B. and C.
For purposes of the preceding sentence, a "constructive" termination of
Executive's employment shall be deemed to have occurred if, without Executive's
consent, there is a material reduction in Executive's authority or
responsibilities or if there is a reduction in Executive's Base Salary or Bonus
target from the amount in effect immediately prior to the Change in Control
(even if such reduction is pursuant to Section 4.C. above) or if Executive is
required by Employer to relocate from the city where Executive is residing
immediately prior to the Change in Control.
(iii) Executive may terminate this Agreement upon forty-five (45) days
advance written notice to Employer upon any breach by Employer of any material
provision of this Agreement, which breach is not cured within a reasonable time
after receipt by Employer of written notice of breach from Executive.
In the event of a Qualifying Termination, or upon the expiration of
this Agreement on September 27, 2004 if Executive remains employed by the
Employer through that date, Employer shall pay or provide Executive the
following benefits:
(a) Employer will waive its right to offset Executive's pension
benefits by the amount of his pension benefits from other employers (the
"Pension Offset Waiver") and provide Executive, upon retirement, the full amount
of benefits earned under Employer's pension plan including benefits based on the
15 additional years of credited service earned by Executive pursuant to the
Pre-Hire Letter;
(b) all stock options shall become immediately exercisable (and
Executive shall be afforded the opportunity to exercise them during the original
term of the option grant) and all restrictions applicable to all restricted
stock grants shall lapse;
(c) to the extent that Executive is deemed to have received an
excess parachute payment by reason of a Change in Control, Employer shall pay
Executive an additional sum sufficient to pay (i) any taxes imposed under
section 4999 of the Code plus (ii) any federal, state and local taxes applicable
to any taxes imposed under section 4999 of the Code.
At any time, Employer may stop providing the Pension Offset Waiver if
at any time during the Non-competitive Period Executive engages in any business
activity in
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violation of Section 7 hereof, regardless of whether such violative behavior
occurs after this Agreement expires on September 27, 2004.
For purposes of this Agreement, a "Change in Control" shall be deemed
to have occurred if at any time after the Effective Date of this Agreement any
of the following occurs:
(1) without prior approval of Employer's Board of Directors, any
person, group, entity or group thereof, excluding Employer employee benefit
plans, becomes the owner of, or obtains the right to acquire, 20% or more of the
voting power of Employer's then outstanding voting securities; or
(2) a tender offer or exchange offer has expired, other than an offer
by Employer, under which 20% or more of Employer's then outstanding voting
securities have been purchased;
(3) as a result of, or in connection with, or within two years
following (i) a merger or business combination, (ii) a reorganization, or (iii)
a proxy contest, in any case which was not approved by the Board of Directors of
Employer, the individuals who were directors of Employer immediately before the
transaction cease to constitute at least a majority thereof, except for changes
caused by death, disability or normal retirement; or
(4) Employer's shareholders have approved (i) an agreement to merge or
consolidate with or into another corporation and Employer is not the surviving
corporation, or (ii) an agreement, including a plan of liquidation, to sell or
otherwise dispose of all or substantially all of Employer's assets.
E. Executive may resign upon 30 days' prior written notice to Employer.
In the event of a resignation under this Section 8.E., this Agreement shall
terminate and Executive shall be entitled to receive Executive's Base Salary
through the Termination Date and any other vested compensation or benefits
called for under any compensation plan or program of Employer, and all further
compensation under this Agreement shall terminate.
F. Upon termination of this Agreement as a result of an event of
termination described in this Section 8 and, except for Employer's payment of
the required payments under this Section 8 (including any Base Salary accrued
through the Termination Date, any Bonus earned for the year preceding the year
in which the termination occurs and any nonforfeitable amounts payable under any
employee plan), all further compensation under this Agreement shall terminate.
9. Remedies.
A. Employer and Executive hereby acknowledge and agree that the services
rendered by Executive to Employer, the information disclosed to Executive during
and by virtue of Executive's employment, and Executive's commitments and
obligations to Employer and its Affiliates herein are of a special, unique and
extraordinary character, and that the breach of any provision of this Agreement
by Executive will cause Employer irreparable injury and damage,
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and consequently Employer shall be entitled to, in addition to all other
remedies available to it, temporary, preliminary and permanent injunctive and
equitable relief from a court of competent jurisdiction to prevent a breach of
Sections 7 and 11 of this Agreement and to secure the enforcement of this
Agreement.
B. Except as provided in Section 9.A., the parties agree to submit to
final and binding arbitration any dispute, claim or controversy, whether for
breach of this Agreement or for violation of any of Executive's statutorily
created or protected rights, arising between the parties that either party would
have been otherwise entitled to file or pursue in court or before any
administrative agency (herein "claim"), and waives all right to xxx the other
party.
(i) This agreement to arbitrate and any resulting arbitration award
are enforceable under and subject to the Federal Arbitration Act, 9 U.S.C.(S) 1
et seq. ("FAA"). If the FAA is held not to apply for any reason, then Ohio
Revised Code Chapter 2711 regarding the enforceability of arbitration agreements
and awards will govern this Agreement and the arbitration award.
(ii) (a) All of a party's claims must be presented at a single
arbitration hearing. Any claim not raised at the arbitration hearing is waived
and released. The arbitration hearing will take place in Cincinnati, Ohio.
(b) The arbitration process will be governed by the Employment
Dispute Resolution Rules of the American Arbitration Association ("AAA") except
to the extent they are modified by this Agreement.
(c) Executive has had an opportunity to review the AAA rules and
the requirements that Executive must pay a filing fee for which the Employer has
agreed to split on an equal basis.
(d) The arbitrator will be selected from a panel of arbitrators
chosen by the AAA in Cincinnati, Ohio. After the filing of a Request for
Arbitration, the AAA will send simultaneously to Employer and Executive an
identical list of names of five persons chosen from the panel. Each party will
have 10 days from the transmittal date in which to strike up to two names,
number the remaining names in order of preference and return the list to the
AAA.
(e) Any pre-hearing disputes will be presented to the arbitrator
for expeditious, final and binding resolution.
(f) The award of the arbitrator will be in writing and will set
forth each issue considered and the arbitrator's finding of fact and conclusions
of law as to each such issue.
(g) The remedy and relief that may be granted by the arbitrator
to Executive are limited to lost wages, benefits, cease and desist and
affirmative relief, compensatory, liquidated and punitive damages and reasonable
attorney's fees, and will not include reinstatement or promotion. If the
arbitrator would have awarded reinstatement or
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promotion, but for the prohibition of this Agreement, the arbitrator may award
front pay. The arbitrator may assess to either party, or split, the arbitrator's
fee and expenses and the cost of the transcript, if any, in accordance with the
arbitrator's determination of the merits of each party's position, but each
party will bear any cost for its witnesses and proof.
(h) Employer and Executive recognize that a primary benefit each
derives from arbitration is avoiding the delay and costs normally associated
with litigation. Therefore, neither party will be entitled to conduct any
discovery prior to the arbitration hearing except that: (i) Employer will
furnish Executive with copies of all non-privileged documents in Executive's
personnel file; (ii) if the claim is for discharge, Executive will furnish
Employer will records of earnings and benefits relating to Executive's
subsequent employment (including self-employment) and all documents relating to
Executive's efforts to obtain subsequent employment; (iii) the parties will
exchange copies of all documents they intend to introduce as evidence at the
arbitration hearing at least 10 days prior to such hearing; (iv) Executive will
be allowed (at Executive's expense) to take the depositions, for a period not to
exceed four hours each, of two representatives of Employer, and Employer will be
allowed (at its expense) to depose Executive for a period not to exceed four
hours; and (v) Employer or Executive may ask the arbitrator to grant additional
discovery to the extent permitted by AAA rules upon a showing that such
discovery is necessary.
(i) Nothing herein will prevent either party from taking the
deposition of any witness where the sole purpose for taking the deposition is to
use the deposition in lieu of the witness testifying at the hearing and the
witness is, in good faith, unavailable to testify in person at the hearing due
to poor health, residency and employment more than 50 miles from the hearing
site, conflicting travel plans or other comparable reason.
(iii) Arbitration must be requested in writing no later than 6 months
from the date of the party's knowledge of the matter disputed by the claim. A
party's failure to initiate arbitration within the time limits herein will be
considered a waiver and release by that party with respect to any claim subject
to arbitration under this Agreement.
(iv) Employer and Executive consent that judgment upon the arbitration
award may be entered in any federal or state court that has jurisdiction.
(v) Except as provided in Section 9.A., neither party will commence
or pursue any litigation or any claim that is or was subject to arbitration
under this Agreement.
(vi) All aspects of any arbitration procedure under this Agreement,
including the hearing and the record of the proceedings, are confidential and
will not be open to the public, except to the extent the parties agree otherwise
in writing, or as may be appropriate in any subsequent proceedings between the
parties, or as may otherwise be appropriate in response to a governmental agency
or legal process.
10. Survival After Termination. The termination of this Agreement shall not
amend, alter or modify the rights and obligations of the parties under Sections
7, 9 and 11 hereof, the terms of which shall survive the termination of this
Agreement.
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11. Goodwill. Executive shall not disparage Employer or any of its
Affiliates in any way that could adversely affect the goodwill, reputation and
business relationships of Employer or any of its Affiliates with the public
generally, or with any of their customers, suppliers or employees. Employer
shall not disparage Executive.
12. Assignment. As this is an agreement for personal services involving a
relation of confidence and trust between Employer and Executive, all rights and
duties of Executive arising under this Agreement, and the Agreement itself, are
non-assignable by Executive. Executive agrees and consents that this Agreement
and the rights, duties, and obligations contained in it may be and are fully
transferable and/or assignable by Employer and shall be binding upon and inure
to the benefit of Employer's successors, transferees, and assigns.
13. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be effective when given by personal
delivery or four business days after being sent by certified mail, return
receipt requested, to Executive at Executive's place of residence as then
recorded on the books of Employer or to Employer at its principal office.
14. Modification. No waiver or modification of this Agreement or the
terms contained herein shall be valid unless in writing and duly executed by the
party to be charged therewith. The waiver by any party hereto of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by such party.
15. Governing Law. This Agreement shall be governed by the laws of the
State of Ohio without regard to conflict of laws principles.
16. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to Executive's employment by Employer. There are no other
contracts, agreements or understandings, whether oral or written, existing
between them except as contained or referred to in this Agreement. This
Agreement replaces and supercedes in its entirety the Executive Employment
Agreement of even date herewith between the parties which shall be of no further
force and effect.
17. Severability. In case any one or more of the provisions of this
Agreement is held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or other enforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provisions have never been contained herein.
18. Successors and Assigns. Subject to the requirements of paragraph 12
above, this Agreement shall be binding upon Executive, Employer and Employer's
successors and assigns.
19. Waiver and Release. In consideration of Employer's entering into this
Agreement, and the receipt of other good and valuable consideration, the
sufficiency of which is expressly acknowledged, Executive, for himself and his
successors, assigns, heirs, executors and administrators, hereby waives and
releases and forever discharges Employer and its affiliates and their officers,
directors, agents, employees, shareholders, successors and assigns from all
claims, demands, damages, actions and causes of action whatsoever which he now
has on account of any matter, whether known or unknown to him and whether or not
previously disclosed to Executive
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or Employer, that relates to or arises out of (i) any existing or former
employment agreement (written or oral) entered into between Executive and
Employer or any of its affiliates (or any amendment or supplement to any such
agreement), (ii) any agreement providing for a payment or payments or extension
of the employment relationship triggered by a merger or sale or other
disposition of stock or assets or restructuring of Employer or any affiliate of
Employer, or (iii) any applicable severance plan.
20. Confidentiality of Agreement Terms. The terms of this Agreement shall
be held in strict confidence by Executive and shall not be disclosed by
Executive to anyone other than Executive's spouse, Executive's legal counsel,
and Executive's other advisors, unless required by law. Further, except as
provided in the preceding sentence, Executive shall not reveal the existence of
this Agreement or discuss its terms with any person (including but not limited
to any employee of Employer or its Affiliates) without the express authorization
of the Board of Directors of Employer. To the extent that the terms of this
Agreement have been disclosed by Employer, in a public filing or otherwise, the
confidentiality requirements of this Section 20 shall no longer apply to such
terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE KROGER CO.
By (Xxxxxx X. Xxxxxxx)
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EXECUTIVE
(Xxxxxxx X. Xxxxxxx)
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Xxxxxxx X. Xxxxxxx
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