Exhibit 10.36.2
July 24, 2003
Xx. Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Dear Xxxxx:
This Release of Claims (this "Agreement") is made and entered into as of
July 24, 2003, by and between Albertson's, Inc., a Delaware corporation (the
"Company"), and you. In consideration of the Termination Benefits payable
pursuant to the letter agreement between you and the Company dated January 26,
2001, as amended by a letter agreement between you and the Company dated April
23, 2001 (as so amended, the "Letter Agreement") and in consideration of the
additional benefits provided in Paragraph 3 of the Agreement, you agree to the
following terms and conditions as a condition of receiving such Termination
Benefits and the benefits provided in Paragraph 3.
Terms not defined herein shall have the meaning set forth in the
Letter Agreement.
1. This Agreement will be effective on the eighth day after it is
executed by you, provided that you have not revoked your release as
provided below.
2. You and the Company acknowledge that the Termination Date occurred on
July 24, 2003. You agree that effective the day after the Termination
Date, you hereby resign (a) subject to the Letter Agreement, as an
employee of the Company, (b) from the Board of Directors of the
Company and from all other Company boards and offices, including those
of any affiliate or subsidiary of the Company, and (c) from all
administrative, fiduciary or other positions you may hold or have held
with respect to arrangements or plans for, of or relating to the
Company. The Company hereby consents to and accepts all such
resignations. After the Termination Date, neither the Company nor you
will represent or state to any other party that you have any authority
to act for or on behalf of the Company or have any relationship with
the Company other than as a stockholder or as a special employee under
the terms of the Letter Agreement. You and the Company acknowledge
that your resignation from the Board of Directors of the Company is
not because of a disagreement with the Company on any matter relating
to the Company's operations, policies or practices.
3. You will receive the Termination Benefits in accordance with the
Letter Agreement. In addition to the Termination Benefits, (a) you
will continue to receive financial counseling services from AYCO for
the period you are classified as a special employee under the Letter
Agreement, and (b) you will receive outplacement services at a level
commensurate with your position as a senior executive of the Company
from a firm mutually agreeable to you and the Company.
4. You do hereby knowingly and voluntarily, fully and finally release and
forever discharge the Company, including its related or affiliated
companies, partnerships, subsidiaries or other business entities, and
its and their present and former respective officers, directors,
shareholders, members, owners, agents, consultants, employees,
representatives, insurers, successors and assigns (hereinafter
referred to collectively as the "Released Parties"), from any and all
claims, charges, complaints, liens, demands, causes of action,
obligations, damages and liabilities, known or unknown, suspected or
unsuspected, that you had, now have, or may hereafter claim to have
against the Released Parties, arising out of or relating in any way to
your employment with or separation from the Company or otherwise
relating to any of the Released Parties from the beginning of time
through the date you sign this agreement. This release specifically
extends to, without limitation, claims or causes of action under any
local, state and federal laws governing employment relations,
including but not limited to federal equal employment opportunity laws
and federal and state labor statutes and regulations, including, but
not limited to, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, and the Employee Retirement
Income Security Act of 1974, all as amended from time to time.
With respect to the Released Parties, you expressly waive all rights
afforded by any provision under Idaho or Delaware law, which generally
provides that a general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor. Notwithstanding any such
foregoing provision or comparable provision, you understand and agree
that this agreement is intended to include all claims, if any, which
you may have and which you do not now know or suspect to exist in your
favor against the Released Parties and that this agreement
extinguishes those claims.
You expressly waive all rights to termination or severance benefits
except as may be provided in this Agreement and the Letter Agreement.
This release specifically extends to any rights under your Change of
Control Severance Agreement dated as of November 1, 2002.
5. Notwithstanding anything to the contrary contained in this release,
you are not releasing any of your rights to the following:
a. To indemnification as an officer or director pursuant to Section
145 of the Delaware General Corporation Law.
b. To exercise and obtain, in accordance with the terms of such
options, any and all the benefits appurtenant to the options to
purchase the Company's common stock held by you on the
Termination Date; or
c. To continuation coverage, at your expense, as provided under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
and any other continuation coverage as provided under applicable
state law.
d. Any of your rights to enforce the Letter Agreement.
6. You acknowledge that the Company has advised you that you should
consult with an attorney of your choosing prior to signing this
agreement and that you have been given at least twenty-one days during
which to review and consider the provisions of this agreement before
signing, although you may sign and return it sooner if you so desire.
You further acknowledge that you have been advised by the Company that
you have the right to revoke this agreement for a period of seven days
after signing it and that this agreement shall not become effective or
enforceable until such seven-day revocation period has expired. You
acknowledge and agree that if you wish to revoke this agreement, you
must do so in writing, and that such revocation must be signed by you
and received by Xxxxxxxx X. Xxxxxxxx, Chief Executive Officer, at
Xxxxxxxxx'x Inc., 000 X. Xxxxxxxxxx Xxxx., Xxxxx, Xxxxx 00000, no
later than 5:00 p.m. Mountain Standard Time, on the seventh day after
you have signed this agreement. You acknowledge and agree that, in the
event that you revoke this agreement, you shall have no right to
receive the Termination Benefits as described in the Letter Agreement
or the benefits described in Paragraph 3.
7. You agree that you will not, without the prior written consent of the
Company, on your behalf or on behalf of any person, firm or company,
directly or indirectly, attempt to influence, persuade or induce, or
assist any other person in so persuading or inducing, any employee of
the Company or any subsidiary or affiliate of the Company to give up,
or to not commence, employment or a business relationship with the
Company or any subsidiary or affiliate of the Company.
8. You agree that you will not, without the prior written consent of the
Company, on your behalf or on behalf of any person, firm or company,
directly or indirectly, engage or cause to be engaged in an employment
or a consulting capacity any employee of the Company or a subsidiary
or affiliate of the Company.
9. You agree that you shall not publish or cause to be published any
public or private statement disparaging the Company, its related or
affiliated companies, partnerships, subsidiaries or other business
entities, and its and their present and former respective officers,
directors, members, shareholders, owners, agents, consultants, or
employees. The Company agrees not to make any public or private
statements disparaging you.
10. You shall cooperate with the Company, its affiliates, and each of
their respective attorneys or other legal representatives
(collectively, the "Company attorneys") in connection with any claim,
litigation, or judicial or arbitral proceeding which is now pending or
may hereinafter be brought against the Company and/or its affiliates
by any third party. Your duty of cooperation shall include, but not be
limited to, (a) meeting with the Company attorneys by telephone or in
person at mutually convenient times and places in order to state
truthfully your knowledge of matters at issue and recollection of
events; (b) appearance by you (that does not conflict with the needs
or requirements of your then-current employer) as a witness at
depositions or trials, without necessity of a subpoena, in order to
state truthfully your knowledge of matters at issue; and (c) signing,
upon the Company attorneys' request, declarations or affidavits that
truthfully state matters of which you have knowledge. The Company
shall promptly reimburse you for your actual and reasonable travel or
other expenses that you may incur in cooperating with the Company in
this Paragraph 10. You shall provide such other cooperation as the
Company may reasonably request to assist the Company in the
administration of its business, it being expressly agreed that
requests for such cooperation which do not require more than four (4)
hours of your time in any 30-day period are reasonable. You further
agree that you will immediately forward to the Company's Chief
Executive Officer any business information related to the Company that
inadvertently has been directed to you. The Company agrees that it
will immediately forward to you any mail addressed to you at the
Company's offices which does not relate to the Company's business or
affairs.
In addition, for a period of 12 months beginning on the Termination
Date, you agree to cooperate with the Company from time to time to
provide information or answer questions with respect to financial
matters with which you are familiar as reasonably requested by the
Company. You also agree during such 12-month period to furnish the
Company with such certificates as it may from time to time request
regarding (i) the truthfulness, accuracy and completeness of the
Company's books and records with which you are familiar, and (ii) the
adequacy of the Company's disclosure controls and internal controls
with which you are familiar.
11. Without the express prior written consent of the Company, you shall
never disclose, communicate, divulge, furnish, make accessible to any
person, firm, partnership, corporation or other entity, or use for
your own benefit or purposes, any information of a confidential or
proprietary nature obtained from or pertaining to the Company, its
assets or business, including information concerning the Company's
current or future proposed business plans, processes, operational
methods, customer lists, trade secrets, suppliers, employees'
personnel files and compensation, financial affairs or marketing
strategies.
12. You represent and agree that neither you nor anyone acting on your
behalf has assigned or transferred, or attempted to assign or
transfer, to any person or entity, any of the claims you are releasing
in this agreement.
13. You represent that you have not filed, initiated, or caused to be
filed or initiated, any legal action covering any claim released in
this agreement and hereby agree and promise that you will never file,
initiate, or cause to be filed or initiated, at any time subsequent to
the execution of this agreement, any claim, suit, complaint, action,
or cause of action, in any state or federal court, based in whole or
in part on the matters herein released, except to the extent such
waiver is prohibited by law, order or regulation. You further agree
not to seek any recovery arising out of, based upon, or relating to
matters released hereunder, and agree you will not voluntarily
participate, assist, or cooperate in any suit, action, or proceeding
against or regarding the Released Parties, or any of them, unless
compelled by law or except to the extent such waiver is prohibited by
law, order or regulation.
14. You acknowledge that you might hereafter discover facts different
from, or in addition to, those you now know or believe to be true with
respect to a claim or claims released herein, and you expressly agree
to assume the risk of possible discovery of additional or different
facts, and agree that this agreement shall be and remain effective, in
all respects, regardless of such additional or different discovered
facts.
15. By signing this release, you represent and certify that:
a. Based on your knowledge, the Company's annual report filed on
April 24, 2003 and the Company's quarterly reports filed on
September 13, 2002, December 11, 2002 and June 6, 2003
(collectively, the "Reports") do not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements made in each Report, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered be the applicable
Report.
b. Based on your knowledge, the financial statements, and other
financial information contained in the Reports, fairly present in
all material respects the financial condition, results of
operations and cash flows of the Company as of, and for, the
periods presented in each Report.
c. You have disclosed to the Company's auditors and the Company's
Audit Committee (i) that there are no significant deficiencies in
the design or operation of internal controls which could
adversely affect the Company's ability to record, process,
summarize and report financial data and that there are no
material weakness in the Company's internal controls and (ii)
there has been no fraud, whether or not material, that involves
management or other employees who have a significant role in the
registrant's internal controls.
16. If any provision of this Agreement shall be determined under
applicable law to be overly broad in duration, geographical coverage,
substantive scope, or otherwise, such provision shall be deemed
narrowed to the broadest term permitted by applicable law and shall be
enforced as so narrowed. If any provision of this Agreement
nevertheless shall be unlawful, void, or unenforceable, it shall be
deemed severable from and shall in no way affect the validity or
enforceability of the remaining provisions of this Agreement. This
Agreement will survive the performance of the specific arrangements
herein. This Agreement is binding on and shall inure to the benefit of
the Company and you and each of our respective heirs, executors,
administrators, successors and assigns.
17. The validity, interpretation, construction and performance of this
Agreement shall in all respects be governed by the laws of Delaware,
without reference to principles of conflict of law.
18. This Agreement may be executed in one or more counterparts, or
duplicates of originals, all of which, taken together, shall
constitute one and the same instrument.
Very truly yours,
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
XXXXXXXXX'X, INC.
By signing this agreement, I acknowledge that I have had the
opportunity to seek the advice of an attorney in connection
with the negotiation and execution of this agreement; that I
have read this agreement and understand its terms; that I
have had sufficient time within which to consider the
provisions of this agreement, and that I entered into this
agreement freely, voluntarily, and without coercion.
Agreed and accepted this 24th day of July, 2003 in Boise, Idaho.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
