EXHIBIT 10.48
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
26th day of January, 2000 (the "Effective Date") by and between Rite Aid
Corporation, a Delaware corporation (the "Company"), and Xxxxxxxxxxx Xxxx (the
"Executive").
WHEREAS, Executive desires to provide the Company with his services and
that Company desires to employ Executive in the capacity of Senior Vice
President and Chief Accounting Officer on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Term of Employment.
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The term of Executive's employment with the Company hereunder (the
"Term") shall commence on the Effective Date and, unless earlier terminated
pursuant to Section 5 below, shall continue for a period ending on the date that
is three (3) years following the Effective Date; provided, however, that on each
anniversary of the Effective Date occurring prior to the termination of
Executive's employment hereunder (each such date a "Renewal Date"), an
additional year shall be added to the Term, unless notice of non-renewal has
been delivered by one party to the other party at least 180 days prior to such
Renewal Date. For purposes of this Agreement, the phrases "year during the Term"
or "during any year of the Term" or similar language shall refer to each
12-month period commencing on the Effective Date or applicable anniversaries
thereof.
2. Position And Duties.
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2.1 Position. During the Term, Executive shall be employed as Senior
Vice President and Chief Accounting Officer of the Company. Following
termination of Executive's employment for any reason, Executive shall
immediately resign from all offices and positions he holds with the Company or
any subsidiary.
2.2 Duties. Subject to the supervision and control of the Chief
Financial Officer of the Company, to whom he shall report, Executive shall do
and perform all services and acts necessary or advisable to fulfill the duties
and responsibilities of his position as Senior Vice President and Chief
Accounting Officer and shall render such services on the terms set forth herein.
In addition, Executive shall have such other executive and managerial powers and
duties with respect to the Company and its subsidiaries, affiliates and
strategic partners as may be assigned to him by the Chief Financial Officer.
Except for sick leave, vacations (as provided in Section 4.3 below), and excused
leaves of absence, Executive shall, throughout the Term, devote substantially
all his working time, attention, knowledge and skills faithfully and to the best
of his ability, to the duties and responsibilities of his position in
furtherance of the business affairs and activities of the Company and its
subsidiaries, affiliates and strategic partners. Executive shall at all times be
subject to, observe and carry out such rules, regulations, policies, directions
and restrictions as the Board of Directors of the Company (the "Board") or the
Chief Executive Officer of the Company may from time to time establish for
senior executive officers of the Company.
3. Compensation.
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3.1 Base Salary. During the Term, as compensation for his services
hereunder, Executive shall receive a salary at the annualized rate of Three
Hundred Fifty Thousand Dollars ($350,000) per year ("Base Salary"), which shall
be paid in accordance with the Company's normal payroll practices and
procedures, less such deductions or offsets required by applicable law or
otherwise authorized by Executive. During the Term the Base Salary shall be
reviewed periodically by the Compensation Committee of the Board for possible
increase. Any increase in the Base Salary shall not limit or reduce any other
obligation of the Company under this Agreement. The Base Salary shall not be
reduced after any such increase, and the term "Base Salary" shall thereafter
refer to the Base Salary as from time to time so increased.
3.2 Guaranteed Bonus. Executive shall be entitled to receive a
guaranteed bonus (the "Guaranteed Bonus") in the amount of $116,000 payable on
April 1, 2000, provided Executive is employed with the Company hereunder on that
date.
3.3 Annual Performance Bonus. Commencing with the Company's fiscal year
beginning on or about February 27, 2000, the Executive shall participate during
the Term in the Company's annual bonus plan as adopted and approved by the Board
or the Compensation Committee from time to time. The Executive's annual target
bonus opportunity pursuant to such plans (the "Annual Target Bonus") shall equal
50% of the Base Salary in effect for the Executive at the beginning of each such
fiscal year.
3.4 Stock Awards.
(a) The Compensation Committee of the Board has approved the grant to
Executive of an option (the "Option") to purchase 350,000 shares of the
Company's common stock, par value $1.00 per share ("Company Stock"). The Option
shall (i) be a non-qualified stock option, (ii) have an exercise price equal to
the closing price of the Company Stock as reported on the New York Stock
Exchange on the Effective Date, (iii) have a term of ten (10) years following
the Effective Date, (iv) vest and become exercisable as to one-third of the
shares of Company Stock subject to the Option on each of the first three
anniversaries of the Effective Date, (v) be subject to the acceleration,
exercise and termination provisions set forth in Section 3.4(o) and Article 5
hereof and (vi) otherwise be evidenced by and subject to the terms of the
Company's form of stock option agreement for officers.
(b) The Compensation Committee of the Board has approved the grant to
Executive of 50,000 shares of restricted Company Stock (the "Restricted Stock").
Subject to (i) the acceleration and forfeiture provisions set forth in Section
3.4(c) and Article 5 hereof and (ii) the terms of the Company's form of
restricted stock agreement for officers, the restrictions applicable to the
Restricted Stock shall lapse to one-third of such shares on each of the first
three anniversaries of the Effective Date.
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(c) Upon the occurrence of a Change in Control of the Company prior to
the termination of Executive's employment with the Company, the Option shall
immediately vest and become exercisable in full, and all remaining restrictions
on the Restricted Stock shall immediately lapse. For purposes of this Agreement
"Change in Control" shall have the meaning set forth in the attached Appendix A.
(d) It is understood and acknowledged by Executive that the securities
underlying the Option will not be subject to an effective registration statement
under the federal securities laws until some time after the Effective Date. The
Company agrees that if, as of the date of termination of Executive's employment
under the circumstances described in Sections 5.3 and 5.5, the securities
underlying the then vested and exercisable portion of the Option (or any other
option to purchase Company Stock then held by Executive) are not subject to an
effective registration statement, the 90-day periods in Sections 5.3 and 5.5, as
applicable, will be deemed to run from the first date such securities become
subject to an effective registration statement. The Company further agrees that
if, as of the date of Executive's voluntary termination of employment other than
for Good Reason, the securities underlying the then vested and exercisable
portion of the Option (or any other option to purchase Company Stock then held
by Executive) are not subject to an effective registration statement, Executive
will be permitted to exercise the Option, to the extent vested and exercisable
as of the date of such termination of employment, during the 30-day period
following the first date such securities become subject to an effective
registration statement.
4. Additional Benefits.
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4.1 Employee Benefits. During the Term, Executive shall be entitled to
participate in the employee benefit plans in which executive officers of the
Company are generally eligible to participate, subject to any eligibility
requirements and the other generally applicable terms of such plans.
4.2 Expenses. During the Term, the Company shall reimburse Executive
for any expenses reasonably incurred by him in furtherance of his duties
hereunder, including, without limitation, travel, meals and accommodations, upon
submission of vouchers or receipts and in compliance with such rules and
policies relating thereto as the Company may from time to time adopt or as may
be required in order to permit such payments to be taken as proper deductions by
the Company or any subsidiary under the Internal Revenue Code of 1986, as
amended, and the rules and regulations adopted pursuant thereto now or hereafter
in effect.
4.3 Vacation. Executive shall be entitled to four weeks paid vacation
during each year of the Term.
4.4 Automobile Allowance. During the Term, the Company shall provide
Executive with an automobile allowance of $750 per month.
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4.5 Annual Financial Planning Allowance. During each year of the Term,
the Company shall provide Executive with a financial planning allowance in the
amount of $5,000.
4.6 Relocation Expenses.
(a) The Company shall reimburse Executive for his reasonable
expenses incurred in moving his household goods and cars from the Los Angeles,
California area to the Harrisburg, Pennsylvania area, in accordance with the
Company's moving expense policies applicable to executive officers generally.
(b) The Company shall reimburse Executive for any loss incurred
upon sale of his principal Los Angeles residence (measured as the excess, if
any, of (i) the sum of (A) the original purchase price of the residence plus (B)
the documented actual cost of any improvement thereto since the date of
purchase, the approximate aggregate amount of which has previously been
disclosed to the Company, plus (C) a standard real estate commission over (ii)
the sale price), such amount to be "grossed up" to offset in full any net
increase in Executive's federal, state and local income, employment and other
taxes resulting therefrom (and from such gross-up); provided, that the aggregate
amount payable pursuant to this Section 4.6(b), including any such gross-up,
shall not exceed $100,000. Executive agrees that he shall use his best efforts
to sell such residence at its fair market value.
(c) The Company shall reimburse Executive for his reasonable living
expenses for a temporary residence in the Harrisburg area until the date of
relocation.
(d) The Company shall reimburse Executive for the reasonable costs
of round trip air travel between Harrisburg and Los Angeles for each weekend
during the period from the Effective Date through the earlier of his relocation
date or August 31, 2000. The Company shall also reimburse Executive for a
reasonable number of round-trip visits between Los Angeles and the Harrisburg
area by his immediate family members prior to the relocation date, including
reasonable costs for meals, lodging and transportation during such trips.
(e) The Company shall pay Executive an additional "gross-up" amount
to offset in full any net increase in Executive's federal, state and local
income, employment and other taxes resulting from any of the amounts and/or
benefits payable pursuant to Section 4.6(a), (c) and (d) being taxable to
Executive.
4.7 Indemnification. The Company shall (a) indemnify and hold Executive
harmless, to the full extent permitted under applicable law, for, from and
against any and all losses, claims, costs, expenses, damages, liabilities or
actions (including security holder actions, in respect thereof) related to or
arising out of the Executive's employment with and service as an officer of the
Company; and (b) pay all reasonable costs, expenses and attorney's fees incurred
by Executive in connection with or relating to the defense of any such loss,
claim, cost, expense, damage, liability or action. Following any termination of
the Executive's employment or service with the Company, the Company shall cause
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any director and officer liability insurance policies applicable to the
Executive prior to such termination to remain in effect for six (6) years
following the date of termination of employment.
5. Termination.
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5.1 Termination of Executive's Employment by the Company for Cause. The
Company may terminate Executive's employment hereunder for Cause (as defined
below). Such termination shall be effected by written notice thereof delivered
by the Company to Executive, indicating in reasonable detail the facts and
circumstances alleged to provide a basis for such termination, and shall be
effective as of the date of such notice in accordance with Section 12 hereof.
"Cause" shall mean (i) Executive's gross negligence or willful misconduct in the
performance of the duties or responsibilities of his position with the Company
or any subsidiary, or failure to timely carry out any lawful directive of the
Board, the Chief Executive Officer or Chief Financial Officer; (ii) Executive's
misappropriation of any funds or property of the Company or any subsidiary;
(iii) the commission by Executive of an act of fraud or dishonesty toward the
Company or any subsidiary; or (iv) the use or imparting by Executive of any
confidential or proprietary information of the Company or any subsidiary in
violation of any confidentiality or proprietary agreement to which Executive is
a party.
5.2 Compensation upon Termination by the Company for Cause or by
Executive without Good Reason. In the event of Executive's termination of
employment (i) by the Company for Cause or (ii) by Executive voluntarily without
Good Reason:
(a) Executive shall be entitled to receive (i) all amounts accrued
but unpaid Base Salary through the effective date of such termination, (ii)
reimbursement for reasonable and necessary expenses incurred by Executive
through the date of notice of such termination, to the extent otherwise provided
under Section 4.2 above and (iii) all other vested payments and benefits to
which Executive may otherwise be entitled pursuant to the terms of the
applicable benefit plan or arrangement through the effective date of such
termination ((i), (ii) and (iii), the "Accrued Benefits"). All other rights of
Executive (and, except as provided in Section 5.6 below, all obligations of the
Company) hereunder or otherwise in connection with Executive's employment with
the Company shall terminate effective as of the date of such termination of
employment.
(b) Except as provided in Section 3.4(d), any portion of the Option
or any other then outstanding stock option that has not been exercised prior to
the date of termination shall immediately terminate as of such date, and any
portion of the Restricted Stock or any other restricted stock or other equity
incentive awards as to which the restrictions have not lapsed or as to which any
other conditions shall not have been satisfied prior to the date of termination
shall be forfeited as of such date.
Any termination of Executive's employment by Executive voluntarily without Cause
shall be effective upon 30 days' notice to the Company.
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5.3 Compensation upon Termination of Executive's Employment by the
Company Other Than for Cause or by Executive for Good Reason. Executive's
employment hereunder may be terminated by the Company other than for Cause or by
Executive for Good Reason. In the event that Executive's employment hereunder is
terminated by the Company other than for Cause or by Executive for Good Reason:
(a) Executive shall be entitled to receive (i) the Accrued
Benefits, (ii) any previously unpaid Guaranteed Bonus, (iii) a pro rata annual
bonus determined by multiplying Executive's then Annual Target Bonus by a
fraction, (x) the numerator of which is the number of days between the beginning
of the then current fiscal year of the Company and the date of termination of
employment and (y) the denominator of which is 365, (iv) an amount equal to two
times the sum of Executive's Base Salary plus Annual Target Bonus as of the date
of termination of employment, such amount payable in equal installments pursuant
to the Company's standard payroll procedures for executive officers over a
period of two years following the date of termination of employment, and (v)
continued health insurance coverage for Executive and his immediate family for a
period of two years following the date of termination of employment.
(b) All stock option awards held by Executive shall vest and become
immediately exercisable and the restrictions with respect to any awards of
restricted stock shall lapse, in each case to the extent such options would
otherwise have become vested and exercisable (or such restrictions would have
lapsed) had Executive remained in the employ of the Company for a period of two
years following the date of termination. Except as provided in Section 3.4(d),
such portion of Executive's stock options (together with any portion of
Executive's stock options that have vested and become exercisable prior to the
date of termination) shall remain exercisable for a period of 90 days following
the date of termination of employment (or, if earlier, until the expiration of
the respective terms of the options), whereupon all such options shall
terminate. Any portion of Executive's stock options that have not vested as of
the date of termination shall terminate as of such date; and all shares of
Restricted Stock as to which the restrictions shall not have lapsed as of the
date of termination shall be forfeited as of such date.
(c) All other rights of Executive (and, except as provided in
Section 5.6 below, all obligations of the Company) hereunder or otherwise in
connection with Executive's employment with the Company shall terminate
effective as of the date of such termination of employment.
Any termination of employment pursuant to this Section 5.3 shall be effective
upon thirty (30) days notice thereof.
5.4 Definition of Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any one of the following:
(a) any material adverse alteration in Executive's titles,
positions, status, duties, authorities, reporting relationships or
responsibilities with the Company or its subsidiaries from those specified in
this Agreement, as the same may be augmented from time to time;
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(b) the assignment to Executive of any duties or responsibilities
materially inconsistent with Executive's status as Senior Vice President and
Chief Accounting Officer of the Company (it being understood that, if the
Company is no longer a public company, the failure of Executive to hold such
positions and the attendant duties and responsibilities with any ultimate
corporate or other parent of the Company or any successor shall be deemed to
constitute such Good Reason); or
(c) any other material breach of this Agreement by the Company,
including, without limitation, any decrease in Executive's Base Salary or Annual
Target Bonus opportunity as set forth in Sections 3.1 and 3.3;
provided, however, that in each such case the Company shall have the right,
within ten (10) days after receipt of notice from Executive of the Company's
violation of any of the foregoing, to cure the event or circumstances giving
rise to such Good Reason, in the event of which cure such event or circumstances
shall be deemed not to constitute Good Reason hereunder.
5.5 Compensation upon Termination of Executive's Employment by Reason
of Executive's Death or Total Disability. In the event that Executive's
employment with the Company is terminated by reason of Executive's death or
Total Disability (as defined below):
(a) Executive or Executive's estate, as the case may be, shall be
entitled to receive (i) the Accrued Benefits, (ii) any previously unpaid
Guaranteed Annual Bonus, (iii) any other benefits payable under the then current
disability and/or death benefit plans, as applicable, in which Executive is a
participant and (iv) continued health insurance coverage for Executive and/or
his immediate family, as applicable, for a period of two years following the
date of termination of employment.
(b) All stock option awards held by Executive shall vest and become
immediately exercisable and the restrictions with respect to any awards of
restricted stock shall lapse, in each case to the extent such options would
otherwise have become vested and exercisable (or such restrictions would have
lapsed) had Executive remained in the employ of the Company for a period of two
years following the date of termination. Except as provided in Section 3.4(d),
such portion of Executive's stock options (together with any portion of
Executive's stock options that have vested and become exercisable prior to the
date of termination) shall remain exercisable for a period of 90 days following
the date of termination of employment (or, if earlier, until the expiration of
the respective terms of the options), whereupon all such options shall
terminate. Any portion of Executive's stock options that have not vested as of
the date of termination shall terminate as of such date; and all shares of
Restricted Stock as to which the restrictions shall not have lapsed as of the
date of termination shall be forfeited as of such date.
(c) All other rights of Executive (and, except as provided in
Section 5.6 below, all obligations of the Company) hereunder or otherwise in
connection with Executive's employment with the Company shall terminate
effective as of the date of such termination of employment.
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"Total Disability" shall mean any physical or mental disability that prevents
Executive from performing one or more of the essential functions of his position
for a period of not less than 90 days in any 12-month period and/or which is
expected to be of permanent duration.
5.6 Survival. In the event of any termination of Executive's employment
for any reason, Executive and the Company nevertheless shall continue to be
bound by the terms and conditions set forth in Sections 6 through 10 below,
which shall survive the expiration of the Term.
5.7 Excise Tax Gross-Up.
(a) In the event that any payment or benefit received or to be
received by the Executive pursuant to the terms of this Agreement or of any
other plan, arrangement or agreement of the Company (or any affiliate)
(collectively, the "Payments") would be subject to the excise tax (the "Excise
Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), as determined as provided below, the Company shall pay to the
Executive, at the time specified in Section 5.7(b) below, an additional amount
(the "Gross-Up Payment") such that the net amount retained by the Executive,
after deduction of the Excise Tax on Payments and any federal, state and local
income and employment or other tax and the Excise Tax upon the Gross-Up Payment,
and any interest, penalties or additions to tax payable by the Executive with
respect thereto, shall be equal to the total Payments. For purposes of
determining whether any of the Payments will be subject to the Excise Tax and
the amounts of such Excise Tax, (1) the total amount of the Payments shall be
treated as "parachute payments" within the meaning of section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to
the extent that, in the opinion of tax counsel ("Tax Counsel") reasonably
acceptable to Executive and selected by the accounting firm which was,
immediately prior to the event giving rise to the Payment, the Company's
independent auditor (the "Auditor"), a Payment (in whole or in part) does not
constitute a "parachute payment" within the meaning of section 280G(b)(2) of the
Code, or such "excess parachute payments" (in whole or in part) are not subject
to the Excise Tax, (2) the amount of the Payments that shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total amount
of the Payments or (B) the amount of "excess parachute payments" within the
meaning of section 280G(b)(1) of the code (after applying cause (1) hereof), and
(3) the value of any noncash benefits or any deferred payment or benefit shall
be determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at
the highest marginal rates of federal income taxation applicable to individuals
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation applicable to
individuals as are in effect in the state and locality of the Executive's
residence in the calendar year in which the Gross-Up Payment is to be made, net
of the maximum reduction in federal income taxes that can be obtained from
deduction of such state and local taxes, taking into account any limitations
applicable to individuals subject to federal income tax at the highest marginal
rates.
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(b) The Gross-Up Payments provided for in Section 5.7(a) hereof
shall be made upon the earlier of (i) ten days following the date of termination
of Executive's employment or (ii) the imposition upon the Executive or payment
by the Executive of any Excise Tax.
(c) If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding that the Excise Tax is less than
the amount taken into account under Section 5.7(a) hereof, the Executive shall
repay to the Company within thirty (30) days of the Executive's receipt of
notice of such final determination the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income tax imposed
on the portion of the Gross-Up Payment being repaid by the Executive if and to
the extent that such repayment results in a reduction in Excise Tax and a
dollar-for-dollar reduction in the Executive's taxable income and wages for the
purposes of federal, state and local income taxes) plus any interest received by
the Executive on the amount of such repayment. If it is established pursuant to
a final determination of a court or an Internal Revenue Service proceeding that
the Excise Tax exceeds the amount taken into account hereunder (including
without limitation by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment pursuant to Section 5.7(a) in respect of
such excess within thirty (30) days of the Company's receipt of notice of such
final determination or proceedings. The Executive and the Company shall each
reasonably cooperate with the other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for Excise
Tax with respect to the Payments.
(d) In the event of any change in, or further interpretation of,
sections 280G or 4999 of the Code and the regulations promulgated thereunder,
the Executive shall be entitled, by written notice to the Company, to request an
opinion of Tax Counsel regarding the application of such change to any of the
foregoing, and the Company shall use its best efforts to cause such opinion to
be rendered as promptly as practicable. All fees and expenses of the Auditor and
Tax Counsel incurred in connection with this Agreement shall be borne by the
Company.
5.8 No Other Severance or Termination Benefits. Except as expressly set
forth herein, Executive shall not be entitled to damages or to any severance or
other benefits upon termination of employment with the Company under any
circumstances and for any or no reason.
6. Protection of Confidential Information.
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Executive acknowledges that during the course of his employment with
the Company, its subsidiaries, affiliates and strategic partners, he will be
exposed to documents and other information regarding the confidential affairs of
the Company, its subsidiaries, affiliates and strategic partners, including
without limitation information about their past, present and future financial
condition, the markets for their products, key personnel, past, present or
future actual or threatened litigation, trade secrets, current and prospective
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customer lists, operational methods, acquisition plans, prospects, plans for
future development and other business affairs and information about the Company
and its subsidiaries, affiliates and strategic partners not readily available to
the public (the "Confidential Information"). Executive further acknowledges that
the services to be performed under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character. In recognition of the
foregoing, the Executive covenants and agrees as follows:
6.1 No Disclosure or Use of Confidential Information. At no time shall
Executive ever divulge, disclose, or otherwise use any Confidential Information,
unless and until such information is readily available in the public domain by
reason other than Executive's disclosure or use thereof in violation of the
first clause of this Section 6.1
6.2 Return of Company Property, Records and Files. Upon the termination
of Executive's employment at any time and for any reason, or at any other time
the Board may so direct, Executive shall promptly deliver to the Company's
offices in Harrisburg, Pennsylvania all of the property and equipment of the
Company, its subsidiaries, affiliates and strategic partners (including any cell
phones, pagers, credit cards, personal computers, etc.) and any and all
documents, records, and files, including any notes, memoranda, customer lists,
reports or any and all other documents, including any copies thereof, whether in
hard copy form or on a computer disk or hard drive, which relate to the Company,
its subsidiaries, affiliates, strategic partners, successors or assigns, and/or
their respective past and present officers, directors, employees or consultants
(collectively, the "Company Property, Records and Files"); it being expressly
understood that, upon termination of Executive's employment at any time and for
any reason, Executive shall not be authorized to retain any of the Company
Property, Records and Files.
7. Noncompetition and Other Matters.
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7.1 Noncompetition. During the Term and, as applicable, for the
two-year period immediately following the date of termination of Executive's
employment either (x) by the Company for Cause or (y) by Executive other than
for Good Reason, Executive shall not, directly or indirectly, in any city, town,
county, parish or other municipality in any state of the United States (the
names of each such city, town, parish, or other municipality, including, without
limitation, the name of each county in the Commonwealth of Pennsylvania being
expressly incorporated by reference herein), or any other place in the world,
where the Company, or its subsidiaries, affiliates, strategic partners,
successors, or assigns, engages in the ownership, management and operations of
retail drugstores (i) engage in a Competing Business for Executive's own
account; (ii) enter the employ of, or render any consulting services to, any
Competing Business; or (iii) become interested in any Competing Business in any
capacity, including, without limitation, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or consultant; provided, however,
Executive may own, directly or indirectly, solely as a passive investment,
securities of any entity traded on any national securities exchange if Executive
is not a controlling person of, or a member of a group which controls, such
entity and does not, directly or indirectly, own 1% or more of any class of
securities of such entity. For purposes of this Section 7.1, the phrase
"Competing Business" shall mean any entity a majority of whose business involves
the ownership and operation of retail drug stores.
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7.2 Noninterference. During the Term and for the two-year period
immediately following the date of termination of Executive's employment at any
time and for any reason (the "Restricted Period"), Executive shall not, directly
or indirectly, solicit, induce, or attempt to solicit or induce any officer,
director, employee, agent or consultant of the Company or any of its
subsidiaries, affiliates, strategic partners, successors or assigns to terminate
his, her or its employment or other relationship with the Company or its
subsidiaries, affiliates, strategic partners, successors or assigns for the
purpose of associating with any competitor of the Company or its subsidiaries,
affiliates, strategic partners, successors or assigns, or otherwise encourage
any such person or entity to leave or sever his, her or its employment or other
relationship with the Company or its subsidiaries, affiliates, strategic
partners, successors or assigns for any other reason.
7.3 Nonsolicitation. During the Restricted Period, Executive shall not,
directly or indirectly, solicit, induce, or attempt to solicit or induce any
customers, clients, vendors, suppliers or consultants then under contract to the
Company or its subsidiaries, affiliates, strategic partners, successors or
assigns, to terminate his, her or its relationship with the Company or its
subsidiaries, affiliates, strategic partners, successors or assigns, for the
purpose of associating with any competitor of the Company or its subsidiaries,
affiliates, strategic partners, successors or assigns, or otherwise encourage
such customers, clients, vendors, suppliers or consultants then under contract
to terminate his, her or its relationship with the Company or its subsidiaries,
affiliates, strategic partners, successors or assigns for any reason.
8. Rights and Remedies upon Breach.
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If Executive breaches, or threatens to commit a breach of, any of the
provisions of Sections 6 or 7 above (the "Restrictive Covenants"), the Company
and its subsidiaries, affiliates, strategic partners, successors or assigns
shall have the following rights and remedies, each of which shall be independent
of the others and severally enforceable, and each of which shall be in addition
to, and not in lieu of, any other rights or remedies available to the Company or
its subsidiaries, affiliates, strategic partners, successors or assigns at law
or in equity.
8.1 Specific Performance. The right and remedy to have the Restrictive
Covenants specifically enforced by any court of competent jurisdiction by
injunctive decree or otherwise, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company or its subsidiaries, affiliates, strategic partners, successors or
assigns and that money damages would not provide an adequate remedy to the
Company or its subsidiaries, affiliates, strategic partners, successors or
assigns.
8.2 Accounting. The right and remedy to require Executive to account
for and pay over to the Company or its subsidiaries, affiliates, strategic
11
partners, successors or assigns, as the case may be, all compensation, profits,
monies, accruals, increments or other benefits derived or received by Executive
as a result of any transaction or activity constituting a breach of any of the
Restrictive Covenants.
8.3 Severability of Covenants. Executive acknowledges and agrees that
the Restrictive Covenants are reasonable and valid in geographic and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full force and effect without regard to the invalid portions.
8.4 Modification by the Court. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or scope of such provisions, such court shall have the power (and is
hereby instructed by the parties) to reduce the duration or scope of such
provisions, as the case may be (it being the intent of the parties that any such
reductions be limited to the minimum extent necessary to render such provision
enforceable), and, in its reduced form, such provision shall then be
enforceable.
8.5 Enforceability in Jurisdiction. Executive intends to and hereby
confers jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographic scope of such covenants. If the courts of any
one or more of such jurisdictions hold the Restrictive Covenants unenforceable
by reason of the breadth of such scope or otherwise, it is the intention of
Executive that such determination not bar or in any way affect the right of the
Company or its subsidiaries, affiliates, strategic partners, successors or
assigns to the relief provided herein in the courts of any other jurisdiction
within the geographic scope of such covenants, as to breaches of such covenants
in such other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
9. No Violation of Third-Party Rights.
----------------------------------
Executive represents, warrants and covenants that he:
(i) will not, in the course of employment, infringe upon or violate any
proprietary rights of any third party (including, without limitation, any third
party confidential relationships, patents, copyrights, mask works, trade
secrets, or other proprietary rights);
(ii) is not a party to any conflicting agreements with third parties
which will prevent him from fulfilling the terms of employment and the
obligations of this Agreement;
(iii) does not have in his possession any confidential or proprietary
information or documents belonging to others and will not disclose to the
Company, use, or induce the Company to use, any confidential or proprietary
information or documents of others; and
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(iv) agrees to respect any and all valid obligations which he may now
have to prior employers or to others relating to confidential information,
inventories, discoveries or other intellectual property which are the property
of those prior employers or others, as the case may be.
Executive has supplied to the Company a copy of each written agreement
to which Executive is subject which includes any obligations of confidentiality,
assignment of intellectual property or noncompetition.
Executive agrees to indemnify and save harmless the Company from any
loss, claim, damage, cost or expense of any kind (including, without limitation,
reasonable attorney fees) to which the Company may be subjected by virtue of a
breach by Executive of the foregoing representations, warranties, and covenants.
10. Arbitration.
-----------
Except as necessary for the Company and its subsidiaries, affiliates,
strategic partners, successors or assigns or Executive to specifically enforce
or enjoin a breach of this Agreement (to the extent such remedies are otherwise
available), the parties agree that any and all disputes that may arise in
connection with, arising out of or relating to this Agreement, or any dispute
that relates in any way, in whole or in part, to Executive's employment with the
Company or any subsidiary, affiliate or strategic partner, the termination of
that employment or any other dispute by and between the parties or their
subsidiaries, affiliates, strategic partners, successors or assigns, shall be
submitted to binding arbitration in Harrisburg, Pennsylvania according to the
National Employment Dispute Resolution Rules and procedures of the American
Arbitration Association. The parties agree that the parties shall each bear his
or its own attorneys' fees and costs in connection with any such arbitration.
This arbitration obligation extends to any and all claims that may arise by and
between the parties or their subsidiaries, affiliates, strategic partners,
successors or assigns, and expressly extends to, without limitation, claims or
cause of action for wrongful termination, impairment of ability to compete in
the open labor market, breach of an express or implied contract, breach of the
covenant of good faith and fair dealing, beach of fiduciary duty, fraud,
misrepresentation, defamation, slander, infliction of emotional distress,
disability, loss of future earnings, and claims under the Pennsylvania
constitution, the United States Constitution, and applicable state and federal
fair employment laws, federal and state equal employment opportunity laws, and
federal and state labor statutes and regulations, including, but not limited to,
the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as
amended, the Americans With Disabilities Act of 1990, as amended, the
Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security
Act of 1974, as amended, the Age Discrimination in Employment Act of 1967, as
amended, and any other state or federal law.
11. Assignment.
----------
Neither this Agreement, nor any of Executive's rights or obligations
hereunder, may be assigned or otherwise subject to hypothecation by Executive.
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The Company may assign its rights and obligations hereunder, in whole or in
part, (i) to any of the Company's subsidiaries, affiliates, or parent
corporations; or (ii) to any other successor or assign in connection with the
sale of all or substantially all of the Company's assets or stock or in
connection with any merger, acquisition and/or reorganization involving the
Company.
12. Notices.
-------
All notices and other communications under this Agreement shall be in
writing and shall be given by fax or first class mail, certified or registered
with return receipt requested, and shall be deemed to have been duly given three
(3) days after mailing or twenty-four (24) hours after transmission of a fax to
the respective persons named below:
If to the Company: Rite Aid Corporation
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
With a copy to: Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxx, Esq.
Fax: (000) 000-0000
If to Executive: Xxxxxxxxxxx Xxxx
________________
________________
Fax: ___________
Any party may change such party's address for notices by notice duly given
pursuant hereto.
13. General.
-------
13.1 No Offset or Mitigation. The Company's obligation to make the
payments provided for in, and otherwise to perform its obligations under, this
Agreement shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against the
Executive or others whether in respect of claims made under this Agreement or
otherwise. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts, benefits and other
compensation payable or otherwise provided to the Executive under any of the
provisions of this Agreement, and such amounts shall not be reduced, regardless
of whether the Executive obtains other employment.
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13.2 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania
without giving effect to conflicts of laws principles thereof which might refer
such interpretations to the laws of a different state or jurisdiction.
13.3 Entire Agreement. This Agreement sets forth the entire
understanding of the parties relating to Executive's employment with the Company
and cancels and supersedes all agreements, arrangements and understandings
relating thereto made prior to the date hereof, written or oral, between the
Executive and the Company and/or any subsidiary or affiliate.
13.4 Amendments; Waivers. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms or covenants hereof may
be waived, only by a written instrument executed by the parties, or in the case
of a waiver, by the party waiving compliance. The failure of any party at any
time or times to require performance of any provisions hereof shall in no manner
affect the right of such party at a later time to enforce the same. No waiver by
any party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
13.5 No Conflict with Other Agreements. Executive represents and
warrants that neither his execution of this Agreement nor the full and complete
performance of his obligations hereunder will violate or conflict in any respect
with any written or oral agreement or understanding with any person or entity.
13.6 Successors and Assigns. This Agreement shall inure to the benefit
of and shall be binding upon the Company (and its successors and assigns) and
Executive and his heirs, executors and personal representatives.
13.7 Withholding. Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this Agreement
all federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
13.8 Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
13.9 No Assignment. The rights and benefits of the Executive under this
Agreement may not be anticipated, assigned, alienated or subject to attachment,
garnishment, levy, execution or other legal or equitable process except as
required by law. Any attempt by the Executive to anticipate, alienate, assign,
15
sell, transfer, pledge, encumber or charge the same shall be void. Payments
hereunder shall not be considered assets of the Executive in the event of
insolvency or bankruptcy.
13.10 Survival. This Agreement shall survive the termination of
Executive's employment and the expiration of the Term to the extent necessary to
give effect to its provisions.
13.11 Captions. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
13.12 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement as of the date first written above.
RITE AID CORPORATION
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
By: Xxxxx X. Xxxxxxx
Its: Senior Executive Vice President
EXECUTIVE
/s/ Xxxxxxxxxxx Xxxx
-------------------------------------
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APPENDIX A
A "Change in Control of the Company" shall be deemed to have occurred
if, as the result of a single transaction or a series of transactions, the event
set forth in any one of the following paragraphs shall have occurred:
(1) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding voting
securities; or
(2) Incumbent Directors cease at any time and for any reason to
constitute a majority of the number of directors then serving on the
Board. "Incumbent Directors" shall mean directors who either (A) are
directors of the Company as of the Effective Date or (B) are elected,
or nominated for election, to the Board with the affirmative votes of
at least a majority of the Incumbent Directors at the time of such
election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation,
relating to the election of directors to the Board); or
(3) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation, other than (i) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof) at least 60% of the
combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately after
such merger or consolidation, or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 25%
or more of the combined voting power of the Company's then outstanding
voting securities; or
(4) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale
or disposition by the Company of all or substantially all of the
Company's assets, other than a sale or disposition by the Company of
all or substantially all of the Company's assets to an entity, at least
60% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately prior to such
sale.
"Affiliate" shall have the meaning set forth in Rule 12b-2 under
Section 12 of the Exchange Act.
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"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under
the Exchange Act, except that a Person shall not be deemed to be the Beneficial
Owner of any securities which are properly filed on a Form 13G.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities or (iv) a
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
19
