EMPLOYMENT AGREEMENT
Agreement made as of the 8th day of June, 1995, by and between
DAIRY MART CONVENIENCE STORES, INC., a Delaware corporation with
its principal offices at One Vision Drive, Enfield, Connecticut
06082 (the "Company"), and GREGG GUY, with his residence located in
Simsbury, Connecticut (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to secure the services of the
Employee in the capacities set forth herein, and the Employee has
agreed to supply his services in such capacities, upon the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter contained, the parties
hereby agree as follows:
1. Definitions. For purposes of this Agreement, the
following capitalized terms used herein shall have the respective
meanings set forth below. Other capitalized terms used herein are
defined elsewhere in this Agreement.
"Cause" shall mean (i) the Employee's willful breach of
duty in the course of his employment, or his habitual neglect of
his employment duties, (ii) an act of fraud or theft committed by
the Employee against the Company or (iii) the Employee having been
convicted by a court of competent jurisdiction of a felony. For
purposes of this Agreement, no act, or failure to act, on the
Employee's part shall be deemed "willful" unless done, or omitted
to be done, by him not in good faith and without reasonable belief
that his action or omission was in the best interests of the
Company and its subsidiaries. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of
a resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Company's
Board of Directors (the "Board") at a meeting of the Board called
and held for such purpose (after reasonable notice to the Employee
and an opportunity for him, together with his counsel, to be heard
before the Board), finding that in the good faith opinion of the
Board the Employee was guilty of conduct set forth above in this
definition and specifying the particulars thereof in detail.
"Date of Termination" shall mean (i) if the Employee's
employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that the Employee shall
not have returned to the full-time performance of his duties during
such thirty (30) day period), and (ii) if the Employee's employment
is terminated for Cause or Good Reason or for any other reason
(other than Disability or death), the date specified in the Notice
of Termination (which, in the case of a termination for Cause shall
not be less than thirty (30) days, and in the case of a termination
for Good Reason shall not be less than thirty (30) nor more than
ninety (90) days, respectively, from the date such Notice of
Termination is given).
"Disability" shall mean permanent and total disability as
such term is defined under Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended (the "Code"). Any questions as to the
existence of the Employee's Disability upon which he and the
Company cannot agree shall be determined by a qualified independent
physician selected by the Employee (or, if he is unable to make
such selection, such selection shall be made by any adult member of
the Employee's immediate family or his legal representative), and
approved by the Company, said approval not to be unreasonably
withheld. The determination of such physician made in writing to
the Company and to the Employee shall be final and conclusive for
all purposes of this Agreement.
"Good Reason" shall mean the occurrence, without the
Employee's express written consent, of any of the following
circumstances:
(i) the assignment to the Employee of any duties
inconsistent with his status as Executive Vice President -
Operations and Marketing of the Company, his removal from that
position, or a diminution in the nature or status of his
responsibilities from those in effect immediately prior to the date
hereof; or
(ii) a reduction by the Company in the Employee's Base
Salary (as defined in Paragraph 5 hereof) or fringe benefits as in
effect on the date hereof or as the same may be increased from time
to time during the Employment Term (as hereinafter defined in
Paragraph 3 hereof).
"Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated.
2. Employment. The Company shall employ the Employee, and
the Employee shall serve the Company, upon the terms and conditions
hereinafter set forth.
3. Term. The employment of the Employee by the Company
hereunder commenced as of June 1, 1995 and, unless sooner
terminated on an earlier date in accordance with the provisions
hereinafter provided, shall terminate on May 31, 1997; provided,
however, that commencing on June 1, 1996 and each June 1
thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than February 28
of such calendar year, either the Company or the Employee shall
have given notice to the other party that it or he does not wish to
extend the term of this Agreement. The period commencing on June
1, 1995 and ending on May 31, 1997 or such earlier or later date to
which the term of the Employee's employment hereunder may be
shortened or extended as provided in this Agreement is referred to
herein as the "Employment Term".
4. Duties. During the Employment Term, the Employee shall:
(i) Serve as Executive Vice President - Operations and
Marketing of the Company, faithfully and to the best of his
ability, subject to the direction and supervision of the Board;
(ii) Serve as an officer and/or director of, and shall
perform such services on behalf of, any subsidiary or other
affiliate of the Company as may be designated by the Board, all
without further compensation other than that provided for in this
Agreement; and
(iii) Devote his full business time, energy and skill
to such employment and shall not, without prior written approval of
the Board, directly or indirectly, engage or participate in, or
become employed by, or become an officer or partner of, or render
advisory services to or provide other services in connection with,
any business activity other than that of the Company or any of its
subsidiaries or affiliates as provided above; provided, however,
that the Employee shall be permitted to (x) serve as a board member
of and render services to charitable organizations of his choice
and (y) personally invest in any corporation, partnership or other
entity, so long as any such investment does not require or involve
the active participation of the Employee in the management of the
business of any such corporation, partnership or other entity such
as to materially interfere with the execution of the Employee's
duties hereunder and does not otherwise violate any provision of
this Agreement.
5. Salary. During the term of this Agreement, the Company
shall pay to the Employee a salary for his services (the "Base
Salary") at a rate not less than $150,000 per year, payable in
accordance with the regular payroll practices of the Company. The
Base Salary shall be subject to annual review by the Board;
provided, however, that such salary may be increased, but not
decreased, in the sole discretion of the Board.
6. Cash Bonus Arrangements. In addition to the Base Salary
provided for in Paragraph 5 hereof, the Board, or a duly authorized
committee thereof, may pay to the Employee, pursuant to an
incentive compensation plan formally adopted by the Board or a
committee thereof or otherwise, bonus payments dependent upon the
Employee's individual performance and contribution for a given
fiscal year, the Company's financial performance for such fiscal
year and/or such other criteria as the Board, or such designated
committee thereof, shall determine. The payment of any such
amounts to be made to the Employee shall be in the sole discretion
of the Board, or such designated committee thereof.
7. Expenses. It is contemplated that, in connection with
his employment hereunder, the Employee may be required to incur
reasonable and necessary travel, business entertainment and other
business expenses. The Company agrees to reimburse the Employee
for all reasonable and necessary travel, business entertainment and
other business expenses incurred or expended by him incident to the
performance of his duties hereunder, upon submission by the
Employee to the Company of vouchers or expense statements (i)
satisfactorily evidencing the incurrence of such expenses and (ii)
that would enable the Company to deduct such expenses from its
income under applicable tax laws.
8. Employee Benefits, Vacation.
(a) The Employee shall be fully vested and entitled to
participate in any and all life insurance, medical insurance,
disability insurance, pension, incentive and savings and other
employee benefit plans which are made available by the Company
during the Employment Term to executives of the Company of the
Employee's rank, to the extent that the Employee qualifies under
the eligibility provisions of such plans.
(b) The Employee shall be entitled to vacations (taken
consecutively or in segments), aggregating four (4) weeks for each
fiscal year of the Company during the Employment Term, to be taken
at times consistent with the effective discharge of the Employee's
duties. Unused vacation time shall not accumulate from year to
year and, in the event any such unused vacation time is remaining
at the end of the fiscal year, the Employee shall not be entitled
to be paid for any such remaining time.
9. Automobile. During the Employment Term, the Company
will, at the Company's sole cost and expense (including, without
limitation, insurance, gasoline and upkeep and repairs), provide
the Employee with an automobile for his use in accordance with past
practice.
10. Permanent Disability. In the event of the Disability of
the Employee during the Employment Term, the Company shall have the
right, following the sending of a Notice of Termination to the
Employee, to terminate his employment hereunder. Effective on the
Date of Termination, the Company shall be discharged and released
from any further obligations under the Agreement (including, but
not limited to, any obligation to pay any bonus in respect of the
fiscal year in which termination occurs, or any fiscal year
thereafter), other than (x) the obligation to continue to make
periodic payments to the Employee of his Base Salary then in effect
(reduced by any amounts received by the Employee pursuant to any
temporary disability plan or program maintained by the Company and
any federal or state disability plan or program) for the period, if
any, from the commencement of the period of Disability through and,
if necessary, after the Date of Termination until the time in
respect of which full payments to the Employee or his
representatives are commenced under the Company's permanent
disability plan or program or (y) pursuant to the next sentence, if
applicable. Notwithstanding the foregoing, if at the time the
Employee's employment hereunder is terminated in the event of
Disability the Company does not maintain a permanent disability
plan or program or if the Employee does not participate in a
permanent disability plan or program offered or sponsored by the
Company, then the Company shall pay to the Employee, within 30 days
after the Date of Termination, an amount equal to (i) 100% of the
annual Base Salary in effect at the time of the Notice of
Termination in accordance with the provisions of Paragraph 5 hereof
and (ii) an amount equal to the highest of the annual bonus
payments made to or earned by the Employee in respect of the three
fiscal years of the Company preceding the Date of Termination.
Notwithstanding the foregoing, the Employee shall have the
continuing obligations provided for in Paragraph 13(b) hereof, but
shall be released from any obligations after the Date of
Termination pursuant to Paragraph 13(a) hereof. Disability
benefits, if any, due under applicable plans and programs of the
Company shall be determined under the provisions of such plans and
programs.
11. Death. In the event of the death of the Employee during
the Employment Term, the Base Salary to which the Employee is
entitled pursuant to Paragraph 5 hereof shall continue to be paid
through the date of death and the Company shall pay an additional
amount equal to the sum of (i) 100% of the annual Base Salary in
effect at the time of death in accordance with the provisions of
Paragraph 5 hereof and (ii) an amount equal to the highest of the
annual bonus payments made to or earned by the Employee in respect
of the three fiscal years of the Company preceding the date of
death. Such additional sum shall be paid within 30 days after the
date of death to the last beneficiary designated by the Employee by
written notice to the Company, or, failing such designation, to his
estate. The Employee shall have the right to name, from time to
time, any one person as beneficiary hereunder, or with the consent
of the Company to make other forms of designation of beneficiary or
beneficiaries. The Employee's designated beneficiary or personal
representative, as the case may be, shall accept the payments
provided for in this Paragraph 11 in full discharge and release of
the Company of and from any further obligations under this
Agreement. Any other benefits due under applicable plans and
programs of the Company shall be determined under the provisions of
such plans and programs.
12. Termination.
(a) If the Employee's employment hereunder is terminated
by the Company for Cause or by the Employee other than for Good
Reason, the Company shall pay the Employee his full Base Salary
through the Date of Termination and shall pay any additional
amounts to be paid to the Employee pursuant to any compensation
plans or programs then in effect and thereupon the Company shall
have no further obligations under this Agreement (including, but
not limited to, any obligation to pay any bonus in respect of the
fiscal year in which termination occurs, or any fiscal year
thereafter), but the Employee shall have the continuing obligations
provided for in Paragraph 13(b) hereof, but shall be released from
any obligations after the date of termination pursuant to Paragraph
13(a) hereof.
(b) If the Employee's employment by the Company shall be
terminated by (x) the Company other than for Cause, his death,
or Disability or (y) the Employee for Good Reason, then the
Employee shall be entitled to the benefits provided below:
(i) The Company shall pay the Employee his full
Base Salary and annual bonus in effect at the time the Notice of
Termination is given through the Date of Termination, no later than
the fifth day following the Date of Termination, plus all other
amounts to which he is entitled under any compensation plan of the
Company applicable to him, at the time such payments are due. For
purposes of this Paragraph 12(b)(i) and the other provisions of
this Agreement, the Employee's "annual bonus in effect at the time
the Notice of Termination is given" shall mean the highest of the
annual bonus payments made to or earned by the Employee in respect
of the three fiscal years of the company preceding the year in
which the Notice of Termination is given.
(ii) The Company shall pay the Employee, on a date
that is no later than the fifth day following the Date of
Termination, as severance pay and in consideration of the
Employee's continued obligations provided for in Paragraph 13(a)
and (b) hereof, a payment equal to 1 1/2 times the sum of (x) his
full Base Salary and (y) annual bonus, in each case in effect at
the time the Notice of Termination is given. Except as provided in
Paragraph 12(b)(iii) hereof, the payment to be made to the Employee
pursuant to this Paragraph 12(b)(ii) shall not be reduced by the
amount of any other payment or the value of any benefit received or
to be received by him in connection with his termination of
employment (whether payable pursuant to the terms of this Agreement
or any other agreement, plan or arrangement with the Company or an
affiliate, predecessor or successor of the Company).
(iii) In the event that any payment or benefit
received or to be received by the Employee pursuant to the terms of
this Agreement (the "Contract Payments") would be subject to the
excise tax (the "Excise Tax") imposed by Section 4999 of the Code,
as determined below, the Contract Payments payable hereunder will
be reduced to an amount that will not be subject to the Excise Tax,
as determined below, such reductions in Contract Payments to be
made in such manner as designated by the Employee in his sole
discretion. In the event that the Contract Payments and any
payment or benefit received or to be received by the Employee in
connection with his termination of employment pursuant to any plan
or arrangement or other agreement with the Company (or any
affiliate) ("Other Payments" and, together with the Contract
Payments, the "Payments") would be subject to the Excise Tax as
determined as provided below, the Company shall pay to the
Employee, at the time specified in Paragraph 12(b)(iv) below, an
additional amount (the "Gross-Up Payment") such that the net amount
retained by the Employee, after deduction of the Excise Tax on
Contract Payments and Other Payments and any federal, state and
local income tax and Excise Tax upon the payment provided for by
this Paragraph 12(b)(iii), and any interest, penalties or additions
to tax payable by him with respect thereto, shall be equal to the
total present value of the Contract Payments and Other Payments at
the time such Payments are to be made. 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 independent tax counsel selected by
the Company's independent auditors and reasonably acceptable to the
Employee ("Tax Counsel"), a Payment (in whole or in part) does not
constitute a "parachute payment" within the meaning of Section
280(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
clause (1) hereof), and (3) the value of any noncash benefits or
any deferred payment or benefit shall be determined by Tax Counsel
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 Employee shall be deemed to pay federal income tax 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 his 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.
(iv) The Gross-Up Payments provided for in Paragraph
12(b)(iii) hereof shall be made upon the earlier of (A) the payment
to the Employee of any Contract Payment or other Payment or (B) the
imposition upon him or payment by him of any Excise Tax.
(v) If it is established pursuant to a final
determination of a court or an Internal Revenue Service proceeding
or the opinion of Tax Counsel that the Excise Tax is less than the
amount taken into account under Paragraph 12(b)(iii) hereof, the
Employee shall repay to the Company within five days of his receipt
of notice of such final determination or opinion 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 Gross-Up Payment being
repaid by him if such repayment results in a reduction in Excise
Tax or a federal, state and local income tax deduction) plus any
interest received by him on the amount of such repayment. If it is
established pursuant to a final determination of a court or an
Internal Revenue Service proceeding or the opinion of Tax Counsel
that the Excise Tax exceeds the amount taken into account hereunder
(including 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 in respect of
such excess within five days of the Company's receipt of notice of
such final determination or opinion.
(vi) On the Date of Termination, the Company shall
at its sole cost and expense transfer unrestricted ownership and
legal title, free and clear of any liens or other encumbrances, to
the automobile made available by the Company for the Employee's use
as of the Notice of Termination, including, without limitation,
payment or reimbursement by the Company of any sales or other
similar taxes due and owning as a result of such transfer.
(vii) For the period of time from the Date of
Termination through the earlier of two years thereafter or the date
on which the Employee and his dependents become eligible for
substantially equivalent coverage provided by a subsequent
employer, the Company shall provide the Employee and his eligible
dependents with continued coverage under all health, medical,
dental and hospitalization plans maintained by the Company during
such time period on the same terms and conditions applicable to
executive officers of the Company.
(viii) Upon the Date of Termination all options
to purchase stock and other rights to purchase or own stock
(including grants of stock) held by the Employee that are not
vested shall immediately vest and become exercisable and all
options to purchase stock and other rights to purchase or own stock
(including grants of stock) then held by him shall remain in effect
and, in the case of rights to purchase stock, be exercisable for 18
months after the Date of Termination, notwithstanding any other
provisions that otherwise would be applicable.
(ix) Upon the Date of Termination, the Company shall
assign and transfer to the Employee, or his designee, all of its
right, title and interest in the life insurance policies covering
the Employee's life that were held by the Company as of such date.
From and after the Date of Termination, the Employee shall, at his
election, assume and pay any and all premiums and other costs
associated with the continuation of such policies. The Company
shall execute and deliver any and all appropriate instruments
necessary to evidence the foregoing assignment and transfer as
promptly as practicable after the Termination Date.
(x) The Employee shall not be required to mitigate
the amount of any payment provided for in this Paragraph 12(b) by
seeking other employment or otherwise, nor, except as otherwise
specifically provided herein, shall the amount of any payment or
benefit provided for in the Paragraph 12(b) be reduced by any
compensation or benefit earned by the Employee as the result
of employment by another employer after the Date of Termination or
otherwise.
The Employee shall accept the payments and other
benefits provided for in the Paragraph 12(b) in full discharge and
release of the Company of and from any further obligations under
this Agreement but the Employee shall have the continuing
obligations provided for in Paragraphs 13(a) and 13(b) hereof.
(c) In the event that the Company elects to terminate
the Employee's Employment Term hereunder pursuant to the proviso to
the first sentence of Paragraph 3 hereof, the Employee shall be
entitled to all of the payments and benefits provided for in
Paragraphs 12(b)(i)-(x) hereof, except that the payment and
consideration provided for in Paragraph 12(b)(ii) hereof to which
the Employee will be entitled will be equal to one-half times the
sum of (x) his full Base Salary in effect for the last fiscal year
of the Company completed during the Employment Term and (y) the
highest of the annual bonus payments made to or earned by the
Employee in respect of the last three fiscal years of the Company
completed during the Employment Term. All references in Paragraph
12(b) to the date of the "Notice of Termination" or "Date of
Termination" shall for purposes of this Paragraph 12(c) be deemed
to be references to the last day of the Employment Term. The
Employee shall accept the payments and other benefits provided for
in this Paragraph 12(c) in full discharge and release of the
Company of and from any further obligations under this Agreement
but the Employee shall have the continuing obligations provided for
in Paragraphs 13(a) and 13(b) hereof.
13. Restrictive Covenants and Confidentiality: Injunctive
Relief.
(a) The Employee agrees, as a condition to the
performance by the Company of its obligation hereunder, that during
the Employment Term and, except if the Employee's employment is
terminated by the Company for Disability or for Cause or by the
Employee other than for Good Reason, during the further period of
one (1) year after the end of such Employment Term, the Employee
shall not, without the prior written approval of the Company,
directly or indirectly through any other person, firm or
corporation, (i) engage or participate or make any financial
investment in or become employed by or render advisory or other
services to or for any person, firm or corporation, or in
connection with any business enterprise, whether for compensation
or otherwise, which is in competition with any of the business
operations or activities of the Company and its subsidiaries then
existing in all geographical places where the Company and its
subsidiaries does or did business during the Employment Term, or
(ii) solicit, raid, entice or induce any person who on the date of
termination of employment of the Employee is, or within the last
twelve (12) months of the Employee's employment by the Company was,
an employee of the Company or any of its subsidiaries, to become
employed by any person, firm or corporation, and the Employee shall
not approach any such employee for such purpose or authorize or
knowingly approve the taking of such actions by any other person,
or (iii) solicit any person or entity who on the Date of
Termination is a vendor of the Company to terminate its
relationship with the Company. Nothing herein contained, however,
shall restrict the Employee from making any investments in any
company, partnership or other entity, so long as such investment
does not require or involve the active participation of the
Employee in the management of any business or enterprise which is
in competition with any of the business operations or activities of
the Company.
(b) Recognizing that the knowledge, information and
relationship with customers, suppliers, and agents, and the
knowledge of the Company's and its subsidiary companies' business
methods, systems, plans and policies which he shall hereafter
establish, receive or obtain as an employee of the Company or its
subsidiary companies, are valuable and unique assets of the
respective businesses of the Company and its subsidiary companies,
the Employee agrees that, during and after the Employment Term he
shall not (otherwise than pursuant to his duties hereunder)
disclose, publish, or furnish to any person, firm or corporation
(other than to representatives of the Company and its affiliates in
furtherance of the performance of the Employee's services
hereunder) any confidential or proprietary information, systems,
programs, know how or trade secrets or any other knowledge,
information, documents or materials, the confidentiality of which
the Company and its affiliates take reasonable measures to protect,
acquired by the Employee during the term of this Agreement as a
result of the performance of his services hereunder.
(c) The Employee represents and acknowledges that, in
light of the payments to be made by the Company to the Employee
hereunder and for other good and valid reasons, the restrictions
stated in Paragraphs 13(a) and 13(b) on the activities in which he
may engage upon termination of his employment with the Company are
reasonable, the locations designated above are reasonable because
they are limited to the locations in which the Company and its
subsidiaries did business during the Employment Term, and the
period of time designated above is reasonable because it extends
only for 12 months following the termination of his employment with
the Company.
(d) The Employee acknowledges that the services to be
rendered by him are of a special, unique and extraordinary
character and, in connection with such services, he will have
access to confidential information vital to the Company's and its
subsidiary companies' businesses. By reason of this, the Employee
consents and agrees that if he violates any of the provisions of
Paragraphs 13(a) or 13(b) the Company and its subsidiary companies
would sustain irreparable harm and, therefore, in addition to any
other remedies which the Company may have under this Agreement or
otherwise, the Company shall be entitled to apply to any court of
competent jurisdiction for an injunction restraining the Employee
from committing or continuing any such violation of this Agreement,
and the Employee shall not object to any such application.
14. Deductions and Withholding. The Employee agrees that the
Company shall withhold from any and all payments required to be
made to the Employee pursuant to this Agreement, all federal,
state, local and/or other taxes which the Company determines are
required to be withheld in accordance with applicable statutes
and/or regulations from time to time in effect.
15. Attorneys' Fees. The Company shall pay to the Employee
all legal fees and expenses reasonably incurred by him in
connection with this Agreement (including all such fees and
expenses, if any, incurred in contesting or disputing in good faith
the nature of any such termination for purposes of this Agreement
or in seeking to obtain or enforce any right or benefit provided by
this Agreement).
16. Notices. All notices or other documents to be given
hereunder by either party hereto to the other shall be in writing
and delivered personally or sent postage prepaid by registered or
certified mail, return receipt requested. Notices shall be deemed
to have been received on the date of delivery, or if sent by
certified or registered mail, return receipt requested, shall be
deemed to be delivered on the third business day after the date of
mailing. The postal receipt specifying a mailing date shall be
sufficient proof of the date of notice. Notices shall be sent to
the following addresses until a notice of change of address by like
notice has been duly provided:
To the Employee: Gregg Guy
To the Company: Dairy Mart Convenience Stores, Inc.
One Vision Drive
Enfield, CT 06082
Attn: Robert B. Stein, Jr.
17. Assignability, Binding Effect and Survival. This
Agreement shall inure to the benefit of and shall be binding upon
the heirs, executors, administrators, successors and legal
representatives of the Employee, and shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
Notwithstanding the foregoing, the obligations of the Employee may
not be delegated and, except as expressly provided in Paragraph 11
hereof relating to the designation of beneficiaries, the employee
may not assign, pledge, encumber, hypothecate or otherwise dispose
of this Agreement, or any of his rights hereunder, and any such
attempted delegation or disposition shall be null and void and
without effect. The provisions of Paragraphs 10, 11, 12 and 13
hereof shall survive termination of this Agreement. The Company
will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company is required to
perform it.
18. Complete Understanding: Amendment. This Agreement
constitutes the complete understanding between the parties with
respect to the employment of the Employee hereunder, and no
statement, representation, warranty or covenant has been made by
either party with respect thereto except as expressly set forth
herein. This Agreement shall not be altered, modified, amended or
terminated except by written instrument signed by each of the
parties hereto. Waiver by either party hereto of any breach
hereunder by the other party shall not operate as a waiver of any
other breach, whether similar to or different from the breach
waived.
19. Governing Law. This Agreement shall be governed by the
laws of the state of Connecticut.
20. Paragraph Headings. The paragraph headings contained in
this Agreement are for reference purposes only and shall not effect
in any way the meaning or interpretation of this Agreement.
21. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances
shall be determined by any court of competent jurisdiction to be
invalid and unenforceable, shall not be affected thereby, and each
provision hereof shall be validated and shall be enforced to the
fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto set their hands as of
the day and year first above written.
DAIRY MART CONVENIENCE STORES, INC.
By: /s/ Robert B. Stein, Jr.
Name: Robert B. Stein, Jr.
Title: President
Agreed to as of this 8th day
of June, 1995
Address for notices: