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Exhibit 10(f)
RETIREMENT AGREEMENT
THIS AGREEMENT (this "Agreement"), made and entered into as of this
31st day of August, 2000, by and between Delhaize America, Inc., a North
Carolina corporation (the "Company"), and Xxxxxx X. Xxxx, Xx. (the "Executive"),
W I T N E S S E T H:
WHEREAS, the Executive is serving as a Director of the Company,
President and Chief Operating Officer of Food Lion, LLC ("Food Lion"), as a
Director and Executive Vice President of Kash n' Xxxxx Food Stores, Inc.
("KNK"), as a Director of Super Discount Markets, Inc. ("SDM"), and as a
Director of Bel-Thai Supermarket Co., Ltd. ("Bel-Thai") (herein referred to
collectively as the " Delhaize Companies"); and
WHEREAS, in recognition of the Executive's long and distinguished
service with the Delhaize Companies; and
WHEREAS, by mutual agreement between the Executive and the Company, the
Executive shall retire from the Delhaize Companies as of the date hereof (the
"Retirement Date") and the Executive's employment with the Company, Food Lion,
and KNK, and his service as a Director of the Company, KNK, SDM, and Bel-Thai
shall terminate as of such Retirement Date.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, the Company and the Executive agree
as follows:
ARTICLE I: RETIREMENT AND CONSULTANCY
Section 1.1 Retirement. The Executive hereby retires and resigns as an
employee, officer and director, as applicable, of each of the Delhaize Companies
effective as of the close of business on the Retirement Date. Notwithstanding
any provision of the Employment Agreement between the Company and the Executive
dated March 13, 2000 (the "Employment Agreement") to the contrary, such
retirement and resignation shall not be deemed to be a breach by the Executive
of the Employment Agreement, and the Employment Agreement shall terminate as of
the Retirement Date.
Section 1.2 Consulting Services. The Executive agrees to be available
from time to time during the period beginning on the Retirement Date and ending
August 31, 2003, for consulting with the Chief Executive Officer and the
Chairman of the Company, as either the Chief Executive Officer or the Chairman
may reasonably request. Reasonable unavailability of the Executive for such
consulting at any time shall not be deemed a breach of this Agreement.
ARTICLE II: RETIREMENT PAYMENTS AND BENEFITS
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Section 2.1 Retirement Payments. The Executive shall continue to
receive the annual salary he currently receives through August 31, 2003. The
Executive shall receive an incentive and wellness bonus for 2000 prorated to the
Retirement Date. Such salary and bonus payments shall be made on the same
schedule as currently made for the Executive.
Section 2.2 Options. As provided in the stock option agreements
governing such stock options, all vested stock options held by the Executive as
of the Retirement Date shall remain exercisable for three months following the
Retirement Date, and thereafter any of such stock options that remain
unexercised shall terminate and cease to be exercisable. All other stock options
that have been granted to the Executive that have not vested prior to the
Retirement Date, shall remain outstanding and shall vest as of the Retirement
Date, and shall remain exercisable for three months following the Retirement
Date. For purposes of clarification, Schedule A attached hereto sets forth the
unexercised stock options that have been granted to the Executive as of the date
immediately prior to the Retirement Date.
Section 2.3 Restricted Stock. The Executive shall continue to be vested
in all restricted stock that has vested as of the Retirement Date. All
restricted stock under awards to the Executive that have not vested prior to the
Retirement Date shall remain outstanding following the Retirement Date and shall
vest as of the Retirement Date. For purposes of clarification, Schedule A
attached hereto sets forth the restricted stock that has been awarded to the
Executive as of the date immediately prior to the Retirement Date.
Section 2.4. Vehicle. As soon as practicable after the Retirement Date,
the Company shall transfer title to the vehicle currently used by the Executive
to the Executive. Thereafter, the Executive shall be responsible for all
maintenance, insurance and other expenses relating to such vehicle, and the
Company shall have no further obligations with respect to such vehicle.
Section 2.5. Split-Dollar Life. The Company shall continue to pay the
premiums on and shall maintain in effect the split-dollar life insurance policy
currently in effect with respect to the Executive (Policy No.3650144) through
August 31, 2003. As of August 31, 2003, such insurance policies shall be
transferred to the Executive, and thereafter the Executive shall be responsible
for all premiums under such policies, and the Company shall waive its right to
receive reimbursement for premiums paid on such policies.
Section 2.6 Withholding of Taxes. The Company may withhold from any
benefits or compensation payable under this Agreement all federal, state, city
or other taxes as may be required pursuant to any law or governmental regulation
or ruling.
Section 2.7 Miscellaneous. Except as specifically provided herein or as
otherwise may be required by law, the Executive shall not be entitled to receive
any other payments, benefits or severance amounts from the Delhaize Companies
following the Retirement Date.
ARTICLE III: CONFIDENTIAL INFORMATION
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The Executive acknowledges that during his service and
employment with the Delhaize Companies that he has been privy and made party to
confidential information, including but not limited to knowledge or data
relating to the Delhaize Companies and their businesses and investments,
information regarding vendors, employees, strategic and business plans, and
analysis of competitors ("Confidential Information") and Trade Secrets (as
defined below). Following the Retirement Date, the Executive shall hold in a
fiduciary capacity for the benefit of the Delhaize Companies all Trade Secrets
and Confidential Information, which shall have been obtained by the Executive
during his service and employment with the Delhaize Companies and which is not
generally available public knowledge (other than by acts by the Executive in
violation of this Agreement). For three years following the Retirement Date, the
Executive shall not, without the prior written consent of the Company or as may
otherwise be required by law or any legal process, or as is necessary in
connection with any adversarial proceeding against any of the Delhaize Companies
(in which case the Executive shall use his reasonable best efforts in
cooperating with the Company in obtaining a protective order against disclosure
by a court of competent jurisdiction), communicate or divulge any such Trade
Secrets or Confidential Information to anyone other than the Company and those
designated by the Company. All records, files, drawings, documents, models,
equipment, and the like relating to the Delhaize Companies' business, which the
Executive has control over, shall not be removed from the Company's premises
and, if so removed, shall be returned to the Company by the Retirement Date. The
Executive acknowledges that he has assigned to the Company all rights to Trade
Secrets and other products relating to the Delhaize Companies' business
developed by him alone or in conjunction with others at any time while employed
by or in the service of the Delhaize Companies. For purposes of this Agreement,
Trade Secrets shall mean all information, without regard to form, including, but
not limited to, technical or non-technical data, formulae, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, business projects, product plans, distribution
lists or lists of actual or potential customers, advertisers or suppliers which
is not commonly known by or available to the public and which information: (i)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
ARTICLE IV: NON-COMPETITION; NON-SOLICITATION; NON-DISPARAGEMENT
Section 4.1 Acknowledgements. The Executive acknowledges (i) that
during his service and employment with the Delhaize Companies, he required
special expertise and talent in conducting his duties and that the Executive had
substantial contacts with customers, suppliers, advertisers and vendors of the
Delhaize Companies and their affiliates; (ii) that the Executive was placed in a
position of trust and responsibility and had access to a substantial amount of
Confidential Information and Trade Secrets and that the Delhaize Companies
placed him in such position and gave him access to such information in reliance
upon his agreement not to compete with the Delhaize Companies during the time
periods set forth below, including, but not limited to, the review and
preparation of strategic plans and business strategies to expand the Delhaize
Companies' business operations; (iii) that due to the Executive's management and
supervising duties, the Executive is a repository of a substantial portion of
the goodwill of the Delhaize
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Companies and would have an unfair advantage in competing with the Delhaize
Companies; (iv) that due to the Executive's special experience and talent, the
breach of this Article 4 cannot be reasonably or adequately compensated solely
by damages in an action at law; (v) that the Executive is capable of competing
with the Delhaize Companies and their subsidiaries; (vi) that the Executive is
capable of obtaining gainful employment that does not violate the restrictions
contained in this Agreement; and (vii) that a material inducement for the
Company in executing this Agreement and making the payments hereunder was the
Executive's willingness to be bound by the terms of this Article 4.
Section 4.2 Non-Competition. In light of the acknowledgements set forth
above and in consideration of the payments made to the Executive hereunder, the
Executive shall not, directly or indirectly, own, manage, operate, control, be
employed by, or perform services (i) for three years following the Retirement
Date, for any business, howsoever organized and in whatsoever form, that engages
in any retail grocery or supermarket business and which is located anywhere
within the continental United States, and (ii) for two years following the
Retirement Date, for any business, however organized and in whatever form, that
engages in any non-retail grocery or supermarket business and which is located
anywhere within the continental United States; provided, however , that the
Company will not unreasonably withhold waivers of the restrictions under Section
4.2(ii).
Section 4.3. Non-Solicitation. To protect the goodwill of the Delhaize
Companies and the Delhaize Companies' legitimate business interests and in
consideration of the payments made to the Executive hereunder, for three years
after the Retirement Date, the Executive shall not, directly or indirectly,
solicit the customers, suppliers or employees of the Delhaize Companies or any
of their affiliates to terminate their relationship with any of the Delhaize
Companies or their affiliates (or to modify such relationship in a manner that
is adverse to the interests of any of the Delhaize Companies or their
affiliates), or to violate any valid contracts they may have with the Delhaize
Companies or their subsidiaries; provided, however, that nothing in this Section
4.3 shall prohibit the Executive from responding to an unsolicited request from
any third party for an employment reference with respect to any person who was
an employee of any of the Delhaize Companies during the period of the
Executive's employment by and service with the Delhaize Companies.
Section 4.4. Non-Disparagement. Following the Retirement Date, the
Executive shall not disparage the Company or any of the Company's subsidiaries,
affiliates, and their respective officers, directors, employees, agents,
successors and assigns, and the Company shall not disparage the Executive or any
of his representatives or agents, or any of their respective heirs and assigns.
A proceeding brought by any party to enforce its rights shall not be deemed to
be a breach of this Section 4.4.
Section 4.5. Miscellaneous. The Executive acknowledges that the
restrictions, prohibitions and other provisions of this Article 4 are
reasonable, fair and equitable in scope, term and duration, are necessary to
protect the legitimate business interests of the Company and its affiliates and
are a material inducement to the Company to enter into this Agreement and make
the payments hereunder. It is the intention of the parties hereto that the
restrictions contained in this Article 4 be enforceable to the fullest extent
permitted by applicable law.
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Therefore, if, at any time, the provisions of this Article 4 shall be determined
to be invalid or unenforceable, by reason of being vague or unreasonable as to
area, duration or scope of activity, this Article 4 shall be considered
divisible and shall become and be immediately amended to only such area,
duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter and
the Executive agrees that this Article 4 as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein.
ARTICLE V: MISCELLANEOUS
Section 5.1 Remedy. Should the Executive engage in or perform, either
directly or indirectly, any of the acts prohibited by Articles 3 and 4, it is
agreed that the Company shall be entitled to immediately withhold any payments
or benefits to be made to the Executive under Article 2 of this Agreement and
all outstanding stock options held by the Executive shall immediately be
canceled and cease to be exercisable (and to the extent such payments and
benefits have already been made, the Executive shall immediately repay such
amounts to the Company upon such breach, including, but not limited to, any gain
realized upon the lapse of restricted stock or exercise of stock options, as
provided in Sections 2.2 and 2.3 hereof) and the Company shall be entitled to
full injunctive relief, to be issued by any competent court of equity, enjoining
and restraining the Executive and each and every other person, firm,
organization, association, or corporation concerned therein, from the
continuance of such violative acts. The foregoing remedy shall not be deemed to
limit or prevent the exercise by the Company of any or all further rights and
remedies which may be available to the Company hereunder or at law or in equity.
Section 5.2 Notices. For purposes of this Agreement, notices and all
other communications provided for herein shall be in writing and shall be deemed
to have been duly given when personally delivered, sent by facsimile or when
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed to such address or sent to such facsimile number as
each party may furnish to the other in writing from time to time.
Section 5.3 Applicable Law, Jurisdiction and Venue. This Agreement is
entered into under, and shall be governed for all purposes by, the laws of the
State of North Carolina, without giving effect to any choice of law principles.
In any such litigation, each party hereto waives personal service of any
summons, complaint or other process and agrees that the service thereof may be
made by certified mail directed to such party at his or its address for purposes
of notice under Section 5.2 hereof.
Section 5.4 No Waiver. No failure by either party hereto at any time to
give notice of any breach by the other party of, or to require compliance with,
any condition or provision of this Agreement shall (i) be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time or (ii) preclude insistence upon strict compliance in the
future.
Section 5.5 Severability. If a court of competent jurisdiction
determines that any provision of this Agreement is invalid or unenforceable,
then the invalidity or unenforceability of
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that provision shall not affect the validity or enforceability of any other
provision of this Agreement, and all other provisions shall remain in full force
and effect.
Section 5.6 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 will constitute one and the same Agreement.
Section 5.7 Headings. The paragraph headings have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
Section 5.8 Gender and Plurals. Wherever the context so requires, the
masculine gender includes the feminine or neuter, and the singular number
includes the plural and conversely.
Section 5.9 Affiliate. As used in this Agreement, unless otherwise
indicated, "affiliate" shall mean any person or entity which directly or
indirectly through any one or more intermediaries owns or controls, is owned or
controlled by, or is under common ownership or control with the Company.
Section 5.10 Assignment. This Agreement is binding on the Executive and
the Company and their successors and assigns; provided, however, that the rights
and obligations of the Company under this Agreement may be assigned to a
successor entity which assumes (either by operation of law or otherwise) the
Company's obligations hereunder. Any such assignment by the Company will not
release the Company unless and until all obligations to the Executive hereunder
are fully discharged. No rights or obligations of the Executive hereunder may be
assigned by the Executive to any other person or entity, except by will or the
laws of descent and distribution. In the event of the Executive's death prior to
receipt by the Executive of all amounts payable by the Company hereunder, such
amounts shall be payable to the Executive's designated beneficiaries on the same
schedule as provided for in this Agreement.
Section 5.11 Entire Agreement. Except as otherwise specifically
provided herein, this Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof, contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
the Executive's resignation from the Delhaize Companies, and amends and
supersedes all prior employment or severance agreements between the Executive
and the Company or any of its predecessors or affiliates, including, but not
limited to, the Employment Agreement. The Executive acknowledges and agrees that
the consideration provided for herein is adequate consideration for the
Executive waiving his rights under the Employment Agreement. Except as otherwise
provided herein, each party to this Agreement acknowledges that no
representation, inducement, promise or agreement, oral or written, has been made
by either party, or by anyone acting on behalf of either party, which is not
embodied herein, and that no agreement, statement, or promise relating to the
Executive's resignation from the Delhaize Companies, which is not contained in
this Agreement, shall be valid or binding. Any modification of this Agreement
will be effective only if it is in writing and signed by the party to be
charged.
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Section 5.12 Release. In consideration of the amounts set forth in this
Agreement, Executive, for himself, his heirs, executors, administrators,
successors and assigns (hereinafter referred to as the "Releasors"), hereby
fully releases and discharges the Delhaize Companies, their officers, directors,
executives, agents, insurers, subsidiaries, parents, affiliates, successors or
assigns (all such persons, firms, corporations and entities being deemed
beneficiaries hereof and are referred to herein as the "Delhaize Entities") from
any and all actions, causes of action, claims, obligations, costs, losses,
liabilities, damages and demands of whatsoever character, whether or not known,
suspected or claimed, which the Releasors have, through the date of this
Agreement, against the Delhaize Entities arising out of or in any way related to
Executive's employment or termination of his employment; provided, however, that
this shall not be a release with respect to any amounts and benefits owed to
Executive pursuant to this Agreement.
Section 5.13 Waiver of Rights Under Other Statutes. Executive
understands that this Agreement waives claims and rights Executive may have
under certain statutes, if applicable, including without limitation, the Age
Discrimination in Employment Act (including the Older Workers Benefit Protection
Act) ("ADEA"), Title VII of the Civil Rights Act, as amended; the Executive
Retirement Income Security Act of 1974, as amended; the Equal Pay Act; the
Rehabilitation Act of 1973; the Americans with Disabilities Act; the Worker
Adjustment and Retraining Notification Act; and under any other law or
regulation of any jurisdiction that in any way relates to Executive's employment
or termination of employment and any and all amendments to any of same.
Section 5.14 Waiver of Rights Under the Age Discrimination Act.
Executive understands that this Agreement, and the release contained herein,
waives claims and rights Executive might have under the ADEA. The waiver of
Executive's rights under the ADEA does not extend to claims or rights that might
arise after the date this Agreement is executed. For a period of seven (7) days
following execution of this Agreement, Executive may revoke the terms of this
Agreement relating to ADEA claims by a written document received by Company on
or before the end of the seven (7) day period. The Agreement will not be
effective until said revocation period has expired. Executive acknowledges that
he has been given up to 21 days to decide whether to sign this Agreement.
Section 5.15 Arbitration. Except as otherwise necessary to secure the
remedy specified in Section 5.1 of this Agreement, any dispute arising between
the Company and the Executive with respect to the performance or interpretation
of this Retirement Agreement shall be submitted to arbitration in Salisbury,
North Carolina, for resolution in accordance with the commercial arbitration
rules of the American Arbitration Association, modified to provide that the
decision by the arbitrators shall be binding on the parties, shall be furnished
in writing, separately and specifically stating the findings of fact and
conclusions of law on which the decision is based, and shall be rendered within
90 days following impanelment of the arbitrators. The cost of arbitration shall
initially be borne by the party requesting arbitration. Following a decision by
the arbitrators, the costs of arbitration shall be divided as directed by the
arbitrators.
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ARTICLE VI: EXECUTIVE ACKNOWLEDGEMENTS
The Executive acknowledges that:
(a) He has read and understands the terms of this Agreement
and has voluntarily agreed to their terms without coercion or undue
persuasion by the Delhaize Companies or any officer, director or other
agent thereof;
(b) He has been encouraged by the Company to seek, and has
sought, competent legal counsel in his review and consideration of this
Agreement and its terms; and
(c) This Agreement does not purport to waive, and does not
waive, any rights the Executive may have which arise after the date on
which this Agreement is finally executed.
[The next page is the signature page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
DELHAIZE AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chairman
Senior Management Compensation
Committee
/s/ Xxxxxx X. Xxxx, Xx.
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Xxxxxx X. Xxxx, Xx., Individually
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