Exhibit 10.31
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RETENTION AGREEMENT
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THIS RETENTION AGREEMENT (this "Agreement") is made September __, 2001
by and between DAIRY MART CONVENIENCE STORES, INC., a Delaware corporation (the
"Company"), and First_Name" Last_Name" ("Employee").
WHEREAS, on August 6, 2001, the Board of Directors of the Company (the
"Board") adopted a Change of Control Severance Plan - 2001 (the "Plan") to
provide for certain severance payments upon a Change in Control (as defined
in the Plan), and the termination of the Participant (as defined in the Plan)
within a year thereafter;
WHEREAS, the Board has identified a need to supplement Employee's
benefits to provide an additional incentive for Employee to remain employed with
the Employer;
WHEREAS, Employee desires to continue to remain employed by the
Employer, subject to assurance that Employee will receive certain monetary
benefits if Employee remains employed by the Employer on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the Company and Employee agree as follows:
1. RELATIONSHIP TO PLAN. This Agreement is intended to provide a
benefit supplemental to and different from the benefits to which Employee
may be entitled under the Plan. All capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Plan.
2. RETENTION BENEFITS.
(a) Notwithstanding anything in Section 2(b) of this Agreement to
the contrary, Employee shall receive three separate retention benefit payments,
each totaling "Ret_Pmt_Amt", on the first normal payroll cycle after April 1,
2002, October 1, 2002, and April 1, 2003 so long as Employee has not been
terminated by the Employer for Cause or resigned from the Employer after a
Change of Control other than for Good Reason prior to any such payment date. If
Employee is terminated by the Employer for Cause, resigns without Good Reason,
or is unable to continue employment due to death or Disability, Employee's right
to receive all remaining unpaid retention benefit payments shall be forfeited.
(b) The payment of outstanding retention benefits will be
accelerated upon the following conditions and in the following manner:
(i) If Employee is terminated by the Employer other than for
Cause or resigns after a Change of Control for Good Reason, Employee shall
receive all remaining unpaid retention benefit payments on the first normal
payroll cycle after the employee's termination or resignation.
(ii) If a Change of Control occurs, Employee shall receive 50%
of the outstanding retention benefits on the first normal payroll cycle after
the Change of Control. The remaining 50% of the outstanding retention benefits
shall be paid upon the earlier of (A) the termination of the Employee by the
Employer without Cause, (B) the resignation of the Employee for Good Reason, or
(C) six months following the Change of Control; provided, however, that if the
Employee is terminated by the Employer for Cause or
resigns without Good Reason before the six month anniversary of the Change of
Control, the Employee's right to receive the remaining unpaid retention benefit
payment will be forfeited.
3. NO MITIGATION. Employee shall not be obligated to seek other
employment or compensation in mitigation of any amount payable under any
provision of this Agreement, and the obtaining of any such other employment or
compensation shall in no event reduce or limit the Company's obligations to make
the payments and arrangements required to be made under this Agreement.
Notwithstanding anything in Section 4(g) of the Plan to the contrary, payments
under this Agreement shall not reduce amounts payable to Employee under the
Plan.
4. SEVERABILITY. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5. EFFECT ON OTHER AGREEMENTS AND THE PLAN.
(a) Except as specifically set forth herein, this Agreement shall
not be deemed to negate, supersede or alter any other agreement or arrangement
between Employee and the Company or any other rights to which Employee may be
entitled, including rights to severance payments under the Plan, and shall be
and remain in effect in addition to any such other agreement or rights, whether
now existing or later created.
(b) This Agreement shall not constitute an employment agreement,
and Employee shall remain an employee-at-will.
6. TERM OF AGREEMENT. This Agreement shall be effective until all
retention benefit payments have been paid. This Agreement will otherwise
terminate earlier upon:
(a) Employee's termination of employment by the Employer for
Cause;
(b) Employee's voluntary termination of employment other than
for Good Reason;
(c) the mutual agreement of Employee and the Company; or
(d) Employee's breach of the attached Confidentiality Agreement.
7. WITHHOLDING OF 401(k) ELECTIONS; TAXES; TAX REPORTING; BENEFIT/
COMPENSATION PLANS. The Company may withhold from any amounts payable under this
Agreement all 401(k) elections and all such federal, state, city and other taxes
and withholdings, and may file with appropriate governmental authorities all
such information returns or other reports with respect to the tax consequences
attendant to any amounts payable under this Agreement, as may, in its reasonable
judgment, be retired by law. Any payments made hereunder shall not be taken into
account in computing Employee's salary or compensation for the purposes of
determining any benefits or compensation under any pension (other than the Dairy
Mart Convenience Stores, Inc. 401(k) and profit Sharing Plan), retirement, life
insurance, bonus, incentive or other benefit or compensation plan of the Company
or its affiliates.
8. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs and legal representatives. The Company shall require any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or
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assets of the Company, by agreement in form and substance satisfactory to
Employee, expressly to assume and agree to perform and discharge all obligations
of the Company arising under this Agreement. All references herein to the
Company shall be deemed to include any such successor.
9. GOVERNING LAW. This Agreement shall in all respects be subject to,
governed by and construed in accordance with the laws of the State of Ohio,
without regard to conflict of laws principles.
10. NOTICES. All notices, requests, demands, letters, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, or
(c) sent by next-day or overnight mail or delivery, as follows:
To Employee:
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
To the Company:
Dairy Mart Convenience Stores, Inc.
One Dairy Mart Way
000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attn: Chief Executive Officer
or to such other person or address as any party shall specify by notice in
writing to the party or parties entitled to notice. All such notices,
requests, demands, letters, waivers and other communications shall be deemed to
have been received (i) if by personal delivery on the day of delivery, (ii) if
by certified or registered mail, on the fifth business day after the mailing
thereof, or (iii) if by next-day or overnight mail or delivery, on the next day
following the day on which it was sent.
11. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by each party hereto. No waiver by any party hereto at any
time of any breach by any other party hereto or compliance with any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
12. ENTIRE AGREEMENT. This Agreement and the attached Confidentiality
Agreement constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and, except as set forth in Section 13 hereof,
supersede all prior verbal or written agreements, covenants, communications,
understandings, commitments, representations or warranties, whether oral or
written, by any party hereto or any of its representatives pertaining to such
subject matter.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
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14. CAPTIONS AND SECTION HEADINGS. Captions and Section headings used
herein are for convenience and are not part of this Agreement and shall not be
used in construing it.
15. FURTHER ASSURANCES. Each party hereto shall execute such additional
documents and do such additional things as may be reasonably be requested by any
other party to effectuate the purposes and provisions of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
COMPANY:
DAIRY MART CONVENIENCE STORES, INC.
By:___________________________________
Its:__________________________________
EMPLOYEE:
______________________________________
______________________________________
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Schedule A to Exhibit 10.32
DAIRY MART - RETENTION AGREEMENT MATERIAL TERMS SUMMARY
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RETENTION
VP Class
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Xxxxx Xxxxx Chief Financial Officer $ 75,000
Xxxxx Xxxxxx VP, Human Resources 83,750
Xxxx Xxxxx VP, Retail Ops. and Gas 100,000
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$258,750
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Director Class
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None over $60,000
