EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (referred to herein as the "Agreement") is made
and entered into by and between XXXXXXX X. XXXX (referred to herein as "Xxxx"),
and PUBLIX SUPER MARKETS, INC., a Florida corporation (referred to herein as
"Publix"), with reference to the following facts:
A. Publix and its subsidiaries operate retail supermarkets in Florida,
Georgia, South Carolina and Alabama.
B. For the past eighteen (18) years, Publix has employed Xxxx on terms and
conditions, including compensation, satisfactory to both Publix and Xxxx.
C. Most recently, Xxxx has served Publix as its Executive Vice President, as a
member of its Executive Committee, and as a member of its Board of
Directors.
D. Effective January 1, 1999, Xxxx desires to reduce the number of hours
devoted to his employment with Publix and Publix agrees to continue Xxxx'
employment at a reduced number of hours provided that Xxxx executes this
Agreement.
E. As a result of his decision to reduce the number of hours devoted to his
employment with Publix, Xxxx has agreed to execute this Agreement setting
forth the terms of his continued employment with Publix and setting forth
certain restrictive covenants.
X. Xxxx agrees that the employment terms and restrictive covenants set forth
herein are reasonable in light of his current position with Publix.
IN CONSIDERATION OF the foregoing facts and of the mutual and reciprocal
covenants, agreements and conditions set forth below to be performed and
observed by the parties hereto, and of other good and valuable considerations
passing between the parties hereto, the receipt and sufficiency of which are
hereby acknowledged, Publix hereby continues the employment of Xxxx, and Xxxx
hereby accepts the continuation of such employment by Publix, upon the terms and
conditions set forth below:
1. PREAMBLES. Each of the parties to this Agreement acknowledges and
confirms that the foregoing preambles to this Agreement are true and
correct.
2. TERM. The term of employment under this Agreement shall commence, or
shall be deemed to have commenced, on the 1st day of January, 1999,
and shall continue unless and until terminated in accordance with any
of the termination provisions set forth below.
3. DUTIES AND PERFORMANCE. So long as this Agreement shall continue in
effect, Xxxx shall use his best efforts, skills and abilities to
faithfully and satisfactorily perform such duties as are assigned to
him by the CEO of Publix. In all events, Xxxx shall devote five
hundred one (501) hours per year to his duties and responsibilities as
an employee of Publix. Any additional hours beyond five hundred one
(501) hours shall be at the mutual discretion of the parties.
4. COMPENSATION. For all services to be performed by Xxxx as an employee
of Publix, Publix agrees to pay and Xxxx agrees to accept an annual
salary of $120,000.00 per year for five hundred one (501) hours of
service. Service in excess of five hundred one (501) hours may entitle
Xxxx to additional compensation in an amount mutually agreeable to
Xxxx and Publix. Xxxx' annual salary shall be payable monthly. In
addition, Xxxx shall be eligible to receive any incentive bonus as may
be paid by Publix annually with the decision of whether to pay such
incentive bonus and the amount thereof to be in the sole discretion of
the Executive Committee of Publix. Such annual salary and any
incentive bonus shall be reduced by all payroll deductions required by
law. Xxxx acknowledges that he shall receive no compensation for
continuing to serve as a member of the Board of Directors of Publix
provided, however, that if Publix makes a decision to compensate
members of the Board of Directors of Publix for their service on the
Board, then Xxxx shall be similarly treated as other members of the
Board of Directors of Publix.
5. TERMINATION. The following termination provisions shall be applicable
with respect to Xxxx' employment by Publix under the terms of this
Agreement:
(a) In the event of Xxxx' death, this Agreement shall be
automatically terminated, with the date of such termination being
the date of Xxxx' death.
(b) In the event of Xxxx' disability, this Agreement shall be
automatically terminated, with the date of such termination being
the date of Xxxx' disability. If, at the time Xxxx suffers a
disability, Publix is providing Xxxx with disability income
insurance coverage through a group policy then, for purposes
hereof, Xxxx shall be deemed to have suffered a "disability" if
the insurance company that issued the policy applicable to Xxxx
makes a determination that Xxxx has suffered a total disability
under the terms of such policy. On the other hand, if Xxxx is
not, at the time Xxxx suffers a disability, provided with
disability insurance coverage, then, for purposes hereof, Xxxx
shall be deemed to have suffered a "disability" at such time as
the Executive Committee of Publix, in its reasonable judgment,
shall make a determination, based upon such medical and other
evidence as the Executive Committee deems appropriate, that Xxxx
is unable to perform all or substantially all of the duties
assigned to Xxxx under this Agreement by reason of such
disability.
(c) Either Xxxx or Publix shall have the right, at any time, with or
without cause, to terminate this Agreement upon not less than
sixty (60) days advance notice to the other of the proposed date
of termination.
In the event of the termination of this Agreement under any of the
provisionsof this paragraph, Publix shall only be obligated to pay to
Xxxx (or to Xxxx' estate in the event of Xxxx' death or to Xxxx'
guardian in the event of Xxxx' disability and if a guardian has been
duly appointed for Xxxx) an amount equal to the net compensation
earned by Xxxx up to the actual date of termination, to the extent not
theretofore paid, together with any Restrictive Covenant Consideration
that may be due and payable pursuant to the provisions of section
6(h).
6. RESTRICTIVE COVENANTS.
(a) DEFINITIONS. As used in this section 6, the following terms shall
have the following meanings:
(i) PERSON. The term "Person" shall mean an individual, a
partnership, a joint venture, a limited liability company, a
corporation, a trust, an unincorporated organization or any
other entity whatsoever.
(ii) COMPETITOR. The term "Competitor" shall mean any Person
engaged in the retail sale of food products, including
supermarkets, specialty food stores, drug stores (e.g.,
Eckerds, Walgreens and the like) and general merchandise
retailers (e.g., Wal-Mart, Kmart, Target and the like).
(iii)BUSINESS. The term "Business" shall mean the retail
supermarket business as conducted by Publix.
(iv) RESTRICTED BUSINESS. The term "Restricted Business" shall
mean the retail supermarket business, including, but not
limited to (i) the business of actively operating retail
supermarkets, and (ii) the business of acquiring retail
supermarkets or the operators of retail supermarkets.
(v) RESTRICTED TERRITORY. The term "Restricted Territory" shall
mean Florida, Georgia, South Carolina, Alabama, or any other
state in the United States where Publix may operate retail
supermarkets during the Restrictive Period. Any activity
involving efforts to acquire Publix shall be deemed to occur
in the Restricted Territory.
(vi) RESTRICTIVE PERIOD. The term "Restrictive Period" shall mean
a period beginning on the Effective Date and ending on the
later of (i) the sixth (6th) annual anniversary of the
Effective Date or (ii) the first (1st) annual anniversary of
a termination of Xxxx' employment under the terms of this
Agreement.
(vii)CONFIDENTIAL INFORMATION. The term "Confidential
Information" shall mean any and all information with respect
to the Business of a secret or confidential nature not
generally available to the public including, without
limitation, any and all information regarding the financial
condition, assets and properties, sales, suppliers,
customers, including information that reveals the specific
application of management and improvement methodology at
Publix, as well as the technology or know-how by which
Publix's products, services, applications and methods of
operation are developed, manufactured, conducted and
operated, and the means and methods of marketing such
products, services, applications and methods of operations;
provided, however, the term "Confidential Information" shall
not include any of the following information: (i)
information which, on the date of the execution of this
Agreement, is otherwise a part of the public domain or (ii)
information which, at any time after the date of the
execution of this Agreement, becomes a part of the public
domain through no fault of Xxxx, but only after said later
date.
(viii) TRADE SECRETS. The term "Trade Secrets" shall mean such of
the Confidential Information as shall constitute "trade
secrets", as that term is defined in Section 688.002(4),
Florida Statutes, as amended.
(ix) CUSTOMER RELATIONSHIPS. The term "Customer Relationships"
shall mean the relationships between the Business and
customers of the Business developed and established over the
years by Publix.
(x) CUSTOMER GOODWILL. The term "Customer Goodwill" means the
goodwill of the customers of the Business developed and
established over the years that Publix has operated the
Business.
(xi) EFFECTIVE DATE. The term "Effective Date" shall mean January
1, 1999.
(b) COVENANTS BY XXXX. Xxxx covenants and agrees with Publix as
follows (collectively referred to herein as the "Restrictive
Covenants"):
(i) During the entire Restrictive Period, Xxxx (except on behalf
of Publix) shall not, either directly or indirectly, in any
capacity whatsoever (including, without limitation, as a
sole proprietor, general partner, limited partner, member of
a limited liability company, joint venturer, shareholder
(other than as a shareholder of a corporation listed on a
public stock exchange), consultant, principal, agent,
independent contractor, employee, officer, director, lender,
or otherwise), become associated with a Competitor with
operations in the Restricted Territory or engage in the
Restricted Business within the Restricted Territory, or any
part thereof.
(ii) During the entire Restrictive Period, Xxxx shall not become
involved in the teaching of any class, course, seminar or
the like, which is for the primary benefit of employees,
agents, contractors, officers or directors of a Competitor.
(iii)During the entire Restrictive Period, Xxxx (except as
otherwise authorized in writing by Publix) shall not
divulge, disclose, reveal or communicate any of the Trade
Secrets to any Person or any of the other Confidential
Information to any Competitor; provided, that the
restriction prohibiting the disclosure of Confidential
Information to a Competitor shall not apply to a work of
fiction sold to the general public. Furthermore, during the
entire Restrictive Period, Xxxx shall not use, or attempt to
use, within the Restricted Territory, any of the Trade
Secrets (except as otherwise authorized in writing by Publix
or except as required or allowed by law or civil process and
procedure).
(iv) Any activity of Xxxx which does not violate either of the
above covenants when such activity is initiated, but
subsequently violates either of the above covenants as a
result of a change of circumstances shall not be deemed a
violation of this Agreement until such change of
circumstances makes such an activity a violation of this
Agreement.
(c) RIGHTS AND REMEDIES OF PUBLIX. Xxxx expressly acknowledges and
confirms that any breach of any of the Restrictive Covenants by
Xxxx shall be presumed to result in irreparable and continuing
injury to Publix. Therefore, in the event of any breach by Xxxx
of any of the Restrictive Covenants and after Publix has given
Xxxx written notice of such breach and a ten (10) day opportunity
to cure such breach, Xxxx acknowledges and confirms that Publix,
in Publix's absolute and uncontrolled discretion, shall be
entitled (without limiting any other available remedy, whether
conferred by statute, common law or otherwise), by an appropriate
action instituted in any Court of competent jurisdiction, to
specific performance or injunctive relief, both temporary and
permanent, without proof of actual monetary damages and without
further proof of irreparable injury (referred to herein as the
AEquitable Relief"). Furthermore, Xxxx acknowledges and confirms
that if, in any such lawsuit instituted by Publix, Equitable
Relief shall not be available to Publix for any reason whatsoever
or the Court having jurisdiction of such lawsuit shall refuse to
grant Equitable Relief for any reason whatsoever, then Publix
shall be entitled to recover from Xxxx money damages, subject to
the limitations of section 8(h) below.
(d) LEGITIMATE BUSINESS INTERESTS. Xxxx acknowledges and confirms to
Publix that Publix has, and will continue to have, "legitimate
business interests" (as such term is used in Section 542.335,
Florida Statutes, as amended) which justify and support the
Restrictive Covenants in the form of, and by reason of:
(i) The Trade Secrets;
(ii) The Confidential Information other than Trade Secrets;
(iii) The Customer Relationships; and
(iv) The Customer Goodwill.
(e) ADDITIONAL CONFIRMATIONS BY XXXX. Xxxx further acknowledges and
confirms to Publix that: (a) the Restrictive Covenants are
reasonable limitations necessary to protect the value of the
Business; (b) the Restrictive Covenants are reasonably limited
with respect to the activities prohibited, the duration thereof,
the geographical area thereof and the scope thereof; (c) the
Restrictive Covenants do not unduly oppress or restrict the
business future or the earning capacity of Xxxx; and (d) the
purpose and the effect of the Restrictive Covenants are solely to
protect Publix for a limited period of time.
(f) RULES OF CONSTRUCTION. If any of the Restrictive Covenants, or
any provision thereof, shall ever be determined by a Court of
competent jurisdiction to be invalid, illegal or incapable of
being enforced for any reason, then any such Restrictive
Covenant, or any such provision thereof, shall be modified in
such manner, including, without limitation, a reduction in the
applicable time period or a reduction in the applicable
geographical area, as shall be required in order to render such
Restrictive Covenant, or such provision thereof, not invalid,
illegal or incapable of being enforced. Furthermore, Xxxx
acknowledges and confirms that the Restrictive Period (as defined
above) shall be extended by any period of time during which Xxxx
shall be in violation of any of the Restrictive Covenants.
(g) TERMINATION OF THE RESTRICTIVE COVENANTS. The parties acknowledge
and agree that the Restrictive Covenants set forth herein can be
terminated upon the mutual written consent of both Publix and
Xxxx.
(h) RESTRICTIVE COVENANT CONSIDERATION. In addition to the
compensation provided for in section 4 above, and in
consideration of the Restrictive Covenants, upon a termination of
Xxxx' employment under this Agreement pursuant to sections 5(b)
and 5(c) above, Publix shall pay to Xxxx restrictive covenant
consideration (the "Restrictive Covenant Consideration") in an
amount calculated as follows:
The initial amount of the Restrictive Covenant Consideration
as of January 1, 1999 and through March 1, 1999, shall be
$775,000.00. Commencing April 1, 1999, the amount of the
Restrictive Covenant Consideration shall increase monthly
with such increase to be effective on the first day of each
and every month, to reflect the increase, if any, that
occurred during the previous month in the Consumer Price
Index for Urban Wage Earners and Clerical Workers ("CPI-W"),
U. S. City Average (1984 = 100), published by the Bureau of
Labor Statistics of the United States Department of Labor
(the "Price Index"). The increase in the Restrictive
Covenant Consideration shall be calculated by comparing a
"Comparison Index" with a "Base Index" on the first day of
each and every month (an "Adjustment Date") commencing on
April 1, 1999. The "Base Index" shall be the Price Index for
the month of January, 1999. The "Comparison Index" shall be
the Price Index for the month occurring two months prior to
the applicable Adjustment Date. Accordingly, the Restrictive
Covenant Consideration during any month commencing on April
1, 1999 shall be equal to the product of $775,000.00
multiplied by a fraction, the numerator of which is the
Comparison Index and the denominator of which is the Base
Index; provided, however, that the Restrictive Covenant
Consideration shall never be less than $775,000.00.
If for any reason the Price Index ceases to be published,
Publix and Xxxx shall use such equivalent Consumer Price
Index as is then published by any successor governmental or
such non-governmental agency as may then be publishing a
reasonably equivalent Consumer Price Index. In either case,
such Consumer Price Index shall be adjusted to the Price
Index. If the basis upon which the Price Index is computed
changes prior to any Adjustment Date, then a proper
adjustment shall be made so that the results obtained are as
nearly equivalent as possible to those which would have been
obtained had such basis not changed. Notwithstanding
anything contrary which may be contained herein, in no event
shall the Restrictive Covenant Consideration be increased by
more than .66% per month.
The foregoing amount shall be paid in a lump sum upon any
applicable termination, less any deductions required by law.
7. NOTICES. Any notice, request, demand, consent, approval, instruction
or other communication required or permitted under this Agreement
(collectively a "notice") shall be in writing and shall be
sufficiently given if delivered in person, sent by telex or
telecopier, sent by a reputable overnight courier service or sent by
registered or certified mail, postage prepaid, as follows:
If to Xxxx: Xxxxxxx X. Xxxx
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to Publix: Publix Super Markets, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx,
Senior Vice President
With copy to: Xxxx X. Xxxxxxx, Xx., Esquire
Corporate Counsel
Publix Super Markets, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, XX 00000-0000
Any notice which is delivered personally in the manner provided
herein shall be deemed to have been duly given to the party to whom it
is directed upon actual receipt by such party (or by such party's
agent for notices hereunder). Any notice which is addressed and mailed
in the manner herein provided shall be presumed to have been duly
given to the party to whom it is addressed at the close of business,
local time of the recipient, on the fifth day after the date it is so
placed in the mail. Any notice which is telexed or telecopied in the
manner provided herein shall be presumed to have been duly given to
the party to whom it is directed upon confirmation of such telex or
telecopy. Any notice which is sent by a reputable overnight courier
service in the manner provided herein shall be presumed to have been
duly given to the party to which it is addressed at the close of
business on the next day after the day it is deposited with such
courier service.
Any person wishing to change the person or address to whom
notices are to be given may do so by complying with the foregoing
notice provisions.
8. GENERAL PROVISIONS.
(a) This Agreement embodies the entire agreement and understanding
among the parties with respect to the subject matter hereof,
expressly superseding all prior agreements and understandings,
whether oral or written.
(b) No change, modification or attempted waiver of any of the
provisions of this Agreement shall be binding upon any party
hereto unless reduced to writing and signed by or on behalf of
all of the parties to this Agreement or their successors.
(c) Any number of counterparts of this Agreement may be signed and
delivered, each of which shall be considered an original and all
of which, together, shall constitute one and the same instrument.
(d) Whenever used in this Agreement, the singular number shall
include the plural, the plural number shall include the singular,
and the use of any gender shall include all genders where the
context so permits.
(e) Section and paragraph titles are used solely for convenience in
this Agreement and shall not be used in interpreting or
construing any provision of this Agreement.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
(g) The waiver by any party to this Agreement of any breach of any
provision of this Agreement shall not operate or be construed as
a waiver of any other provision of this Agreement or of any
future breach of the provision so waived.
(h) In the event any litigation shall be instituted for the purpose
of enforcing any of Publix's rights and remedies by reason of any
breach of any of the Restrictive Covenants by Xxxx, the
prevailing party or parties, as determined by the Court having
jurisdiction thereof, shall be entitled to recover from the
non-prevailing party or parties, in addition to all other relief,
an amount equal to all costs and expenses incurred in connection
with such litigation, including, without limitation, reasonable
fees of attorneys, accountants and other experts at the pretrial
level, the trial level and in connection with all appellate
proceedings. However, if Xxxx is not the prevailing party, such
recovery shall not exceed the amount of the Restrictive Covenant
Consideration paid to Xxxx pursuant to section 6(h). Neither
party can litigate any matter under this Agreement after the
expiration of the first annual anniversary of the end of the
Restrictive Period.
(i) Xxxx and Publix each severally acknowledges and confirm that the
proper, exclusive and convenient venue for any legal proceeding
instituted in connection with this Agreement, and with respect to
any rights and liabilities hereunder, shall be in Polk County,
Florida, and Xxxx and Publix each waive any defense, whether
asserted by motion, pleading or otherwise, that Polk County,
Florida, is an improper or inconvenient venue, and each hereby
consent to the personal jurisdiction of any Court of competent
jurisdiction located in Polk County, Florida.
IN WITNESS WHEREOF, Xxxx has executed this Agreement this 28th day of
August, 1998.
Signed in the presence of the following two witnesses:
/s/Xxxxx X. Xxxx /s/ Xxxxxxx X. Xxxx
------------------------- -------------------
(WITNESS SIGNATURE) Xxxxxxx X. Xxxx
PRINT NAME: Xxxxx X. Xxxx
/s/Xxxxxx X. Xxxxx
(WITNESS SIGNATURE)
PRINT NAME: Xxxxxx X. Xxxxx
IN WITNESS WHEREOF, Publix has caused this Agreement to be executed by
its undersigned officer duly authorized this 28th day of August, 1998.
Signed in the presence of the PUBLIX SUPER MARKETS, INC.
following two witnesses:
/s/Xxxx X. Xxxxxxx By:/s/Xxxxxx X. Xxxxxxx
------------------ -------------------------
(WITNESS SIGNATURE) NAME: Xxxxxx X. Xxxxxxx
PRINT NAME: Xxxx X. Xxxxxxx TITLE: Chief Executive Officer
/s/Xxxxx X. Xxxxx
-------------------
(WITNESS SIGNATURE)
PRINT NAME: Xxxxx X. Xxxxx
