EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement dated effective as of
February 23, 1997, is made and entered into by and between
Jitney-Jungle Stores of America, Inc., a Mississippi corporation
(the "Company"), and Michael E. Julian (the "Executive").
RECITALS
The Company desires to employ the Executive in the
business operated by the Company, according to the terms,
covenants and conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Executive
hereto agree as follows:
1. Employment and Duties. Subject to the terms
hereof, the Company employs Executive as Chief Executive
Officer of the Company and in such capacities with its affiliates
and subsidiaries as the Company shall designate, with full
authority to manage the day-to-day business of the Company,
subject only to the direction of the Company's Board of
Directors. Executive accepts such employment and agrees to
devote substantially his entire professional time, attention and
energies to the business of the Company and to perform such
additional responsibilities and duties consistent with his position
as provided in the Bylaws and as may be assigned to him from
time to time by the Board of Directors. Executive shall work at
the principal office of the Company located in or near the
Jackson, Mississippi metropolitan area or at such other location
in or near the Jackson, Mississippi metropolitan area as the
Board of Directors, in its discretion, may select.
2. Extent of Services. Executive shall devote
substantially all his working time (during normal business hours)
and attention (other than during any illness and vacations) and
give his good faith efforts, skills and abilities to the management
and operations of the Company; it being understood and agreed
that Executive shall be permitted to manage his own personal
affairs and serve as director or officer of any trade association,
civic, corporate, educational or charitable organization or
governmental entity, provided that Executive's service does not
materially interfere with Executive's performance of his duties
hereunder. Executive shall report only and directly to the
Company's Board of Directors. Notwithstanding the above, the
Executive shall not be required to perform any duties or
responsibilities which would be likely to result in non-
compliance with or violation of any applicable law or regulation.
3. Term. The initial term of this Agreement shall
commence as of the effective date hereof and, unless earlier
terminated pursuant to Section 8, shall continue thereafter until
terminated by either party upon the giving of at least thirty (30)
days' advance written notice.
4. Compensation. Executive's compensation under
this Agreement shall be as follows:
(a) Base Salary. Company shall pay
Executive a base salary ("Base Salary") at a rate of no
less than $450,000.00 per year from the date hereof.
The Base Salary shall be inclusive of all compensation
for any services Executive may be elected or selected to
perform (i) as a member of the Board of Directors of the
Company and/or any of its affiliates and subsidiaries, or
(ii) as a member of any appointed committees of such
Boards of Directors, including the Executive Committee.
In addition, the Board of Directors of Company shall, in
good faith, consider granting increases in such Base
Salary based upon such factors as Executive's
performance and the growth and/or profitability of the
Company and those affiliates and subsidiaries that
Executive is directed to serve. Executive's Base Salary
shall be paid in installments in accordance with the
Company's normal payment schedule for its senior
management. All payments shall be subject to the
deduction of payroll taxes and similar assessments as
required by law.
(b) Bonus. In addition to the Base Salary,
Executive shall be eligible each year for a cash bonus of
up to 100% of the Base Salary based upon his
performance in accordance with specific quarterly or
annual objectives as set forth under the Company's
Supervisory Personnel Bonus Plan or such other similar
plan as may be approved by the Board of Directors.
5. Fringe Benefits.
(a) The Company agrees to furnish an
automobile to Executive of his choice and to make such
automobile available for the Executive's exclusive use
during the period of his employment with the Company.
All maintenance, taxes and other operating costs shall be
paid by the Company, subject to appropriate withholding
requirements.
(b) The Company shall also make available
to Executive those benefits which are made available to
the executive officers of the Company as a group, which
benefits currently include, without limitation, 401(k)
plans, profit sharing plans, and health, dental, and
disability insurance. The Company shall also acquire
from Executive's previous employer and maintain that
certain term life insurance policy currently outstanding
for the benefit of the Employee and maintained by his
previous employer.
6. Vacation. Executive shall be entitled to take
three weeks of paid vacation during each fiscal year in which he
is employed. Accrued but unused vacation shall be carried over
only in accordance with the Company's standard policies.
7. Expense Reimbursement. In addition to the
compensation and benefits provided in Sections 4, 5 and 6
hereof, the Company shall, upon receipt of appropriate
documentation, reimburse Executive for his reasonable travel,
lodging, entertainment, and other ordinary and necessary
business expenses incurred in the course of his duties on behalf
of the Company.
8. Termination of Employment.
(a) Either party may terminate Executive's
employment under this Agreement for any reason by
giving thirty (30) days' written notice to the other party.
In the event of a termination by the Company, the
Company may elect that the Executive cease all services
and leave the premises immediately. If the Company
terminates Executive's employment without Cause
pursuant to this Section 8(a) or if the Executive resigns
at the request (without Cause) of the Board of Directors
or terminates his employment for Good Reason (as
hereinafter defined), Executive shall be paid, in addition
to his Base Salary earned through the date of
termination, an amount equal to that percentage of the
average of Executive's bonuses for the previous three
(3) years, or the period of the actual employment if
shorter, determined by dividing the number of days in
the year prior to the date of termination by 365 and the
Company shall pay Executive as severance pay an
amount equal to one year's annual Base Salary plus
100% of the average of his bonuses for the previous
three (3) years, or the period of his actual employment if
shorter. The Executive shall continue to receive all
benefits under the health benefit plans, practices,
policies and programs provided by the Company to the
extent applicable generally to other peer executives of
the Company for a period of the lesser of one year or
until the date Executive becomes re-employed with
another employer and is eligible to receive medical or
other welfare benefits under another employer provided
plan. All cash severance compensation amounts owed
pursuant to this Section 8(a) shall be paid within thirty
(30) days following the effective date of Executive's
termination. If Executive notifies the Company of his
intention to terminate his employment pursuant to this
Section 8(a) for any reason, the Company shall have the
right to accelerate the date of termination to a date on or
after the date of Executive's notice. The Executive's
termination of employment is deemed for "Good
Reason," if any of the following occurs without the
Executive's written consent: (i) the assignment to
Executive of any duties materially inconsistent with, or
the substantial reduction of powers or functions
associated with, his positions, duties, responsibilities and
status with the Company (other than changes in
reporting or management responsibilities required by
applicable federal or state law); (ii) a reduction by the
Company of Executive's salary or a material reduction
in other benefits taken as a whole (except to the extent
such benefits are no longer generally available to
members of management of the Company), except in
connection with the termination of such Executive's
employment by the Company for Cause (it being
understood that failure to receive bonus payments at the
same level as in prior years or periods shall not be
deemed to be a reduction in salary); (iii) a change in
Executive's principal work location, except for required
travel on the Company's business; or (iv) the willful and
continuing failure by the Company substantially to
perform its obligations under this Agreement; provided,
however, "Good Reason" shall not be deemed to exist
hereunder unless the Company shall have failed to cure
any breach or nonperformance within thirty (30) days
after receipt by the Company of written notice thereof
from the Executive, which notice shall be given by
Executive promptly and in any event within fifteen (15)
days after any event that the Executive believes
constitutes "Good Reason." It is hereby expressly
acknowledged that the foregoing definition of "Good
Reason" shall be effective solely for purposes of this
Agreement and shall not be applicable to any other
agreement or understanding between Executive and the
Company. "Cause" when used in connection with the
termination of Executive's employment with the
Company, means (A) act or acts of dishonesty or
conviction of a felony by Executive; provided acts of
"dishonesty" shall not extend to expense account items
to the extent the items involved are nominal and any
error is attributable to carelessness or committed in good
faith within reasonable interpretation of the Company's
policies, (B) failure by the Executive in any material
respect as to his obligations, services or duties
hereunder, which determination shall be made by the
Board of Directors of the Company acting in good faith;
provided, however, "cause" shall not be deemed to exist
hereunder unless the Executive shall have failed to cure
any such breach or nonperformance within thirty (30)
days after receipt by the Executive of written notice
thereof from the Company, (C) willful and deliberate
violations of Executive's obligations (whether such
obligations are designated by the Board of Directors or
are set forth herein) to the Company that result in
material injury to the Company and (D)
misappropriation or embezzlement of any funds or
property of the Company by the Executive. For
purposes of this definition of cause, no act or failure to
act, shall be considered "willful" unless done, or omitted
to be done, (1) in bad faith and without reasonable belief
that the action or omission was in the best interest of the
Company or, (2) in the event the direction of the Board
of Directors is unclear, without the reasonable belief that
the action or omission was in the best interest of the
Company. In the event that there is a disagreement
regarding the existence of Good Reason or Cause (other
than for conviction of a felony), either party may submit
such disagreement to arbitration under the rules of the
American Arbitration Association or such other
procedure as the parties may agree. The ruling of the
arbitration shall be final and binding on both parties.
The Company and the Executive shall each pay their
own arbitration costs unless the arbitrator's award
determines otherwise, in which case such costs,
expenses, and fees shall be paid in accordance with the
arbitrator's award. The arbitration proceeding shall be
conducted in Atlanta, Georgia.
(b) Notwithstanding anything to the
contrary in Section 8(a), the Company may terminate
Executive's employment, effective immediately upon
written notice to Executive or on any other dates
specified in such notice, for Cause. Termination by the
Company of Executive's employment for any other
reason shall be deemed for the purposes of this
Agreement to be without Cause.
(c) Executive's employment hereunder
shall terminate immediately upon his death or disability
except as to any right which Executive's estate or
dependents may have under COBRA or any other
federal or state law or which are derived independent of
this Agreement by reason of his participation in any plan
maintained by the Company. Executive or his estate
shall be entitled to receive the accrued Base Salary and
bonus through the date of termination, with the accrued
bonus being computed on a per diem basis based upon
the bonus which would have otherwise been payable to
the Executive for the fiscal year during which the date of
termination falls had the Agreement not been terminated,
computed on the same basis as in effect immediately
prior to the date of termination, which bonus shall be
paid as and when the same would have otherwise been
payable under the bonus plan had the Agreement not
been terminated. For purposes of this Section 8(c),
Executive shall be deemed to be disabled if, on account
of illness or other incapacity, he has been unable to
perform his duties for seventy-five (75) consecutive
days and, in the good faith judgment of the Board of
Directors, will be unable to perform his duties hereunder
for a period of twelve (12) consecutive months. The
Company shall continue to pay Executive his base salary
and other employment benefits hereunder prior to the
termination by the Board of Directors pursuant to this
Section 8(c) even though Executive is disabled during
that period of time.
(d) Severance payments due under Section
8(a) shall be paid when due regardless whether
Executive accepts employment with a new employer.
(e) The Company and Executive
acknowledge that they are entering into a change of
control Agreement ("Control Agreement") regarding the
Executive's employment upon the event of a change of
control of the Company as defined in the Control
Agreement (the "Change of Control"). In the event of a
Change of Control the Control Agreement shall govern
Executive's future employment.
9. Confidentiality. From and after the date hereof,
Executive shall, and shall cause his affiliates and representatives
to, keep confidential and not disclose to any other person or use
for his own benefit or the benefit of any other person any trade
secrets or other confidential proprietary information in his or
their possession or control regarding the Company or its
affiliates or their respective businesses and operations. The
obligation of Executive under this Section 9 shall not apply to
information which (i) is or becomes generally available to the
public without breach of the commitment provided for in this
Section; or (ii) is required to be disclosed by law, order or
regulation of a court or tribunal or governmental authority;
provided, however, that, in any such case, Executive shall notify
the Company as early as reasonably practicable prior to
disclosure to allow the Company to take appropriate measures to
preserve the confidentiality of such information.
10. Stock Options. The Company has granted to
Executive, on terms to be set forth in the separate option
agreement attached hereto, options to acquire shares of capital
stock of the Company. The Company agrees that upon exercise
of the Option by Executive, the Company shall pay to the
Executive funds equal to 20% of the difference between the
exercise price and the fair market value of the exercised shares
on the date of exercise.
11. Competition; Solicitation. Executive hereby
agrees that during the Term he will not, unless authorized in
writing to do so by the Company, (a) directly or indirectly own,
manage, operate, join, control or participate in the ownership,
management, operation or control of, or be employed or
otherwise connected in any substantial manner with any business
which directly or indirectly competes to a material extent with
any line of business of the Company or its subsidiaries;
provided, that nothing in this Agreement shall prohibit Executive
from acquiring up to 2% of any class of outstanding equity
securities of any corporation whose equity securities are
regularly traded on a national securities exchange or in the
"over-the-counter market"; (b) recruit any employee of the
Company or solicit or induce, or attempt to solicit or induce, any
employee of the Company to terminate his or her employment
with, or otherwise cease his or her relationship with, the
Company; or (c) solicit, divert or take away, or attempt to solicit,
divert or to take away, the business or patronage of any of the
clients, customers or accounts as prospective clients, customers
or accounts, of the Company. Provided that the Company pays
the Executive (i) the severance payment due to Executive in
accordance with Section 8(a) hereof or, (ii) an amount equal to
the Section 8(a) severance payment within thirty (30) days
following the effective date of Executive's termination, the
covenants contained in the preceding sentence regarding
competition and solicitation shall extend for a period of one year
from the termination or expiration of the Term in consideration
for such payment.
12. Equitable Relief. The Company and Executive
confirm that the restrictions contained in Sections hereof are, in
view of the nature of the business of the Company, reasonable
and necessary to protect the legitimate interests of the Company
and that any violation of any provision of Sections will result in
irreparable injury to the Company. Executive hereby agrees
that, in the event of any breach or threatened breach of the terms
or conditions of this Agreement by Executive, the Company's
remedies at law will be inadequate and, in any such event, the
Company shall be entitled to commence an action for
preliminary and permanent injunctive relief and other equitable
relief in any court of competent jurisdiction.
13. Indemnity. The Company agrees to indemnify
Executive against all costs, charges and expenses incurred or
sustained by Executive in connection with any action, suit or
proceeding to which he may be a party by reason of being or
having been a director, officer or employee at the request of the
Company to the fullest extent permitted by applicable law.
14. Amendment. This Agreement contains and its
terms constitute the entire Agreement of the parties and
supersedes all prior Agreements regarding employment, and may
be amended only by a written document signed by both parties to
this Agreement
15. Governing Law. This Agreement shall be
governed by the laws of the State of Mississippi. The parties
hereby irrevocably consent to, and waive any objection to the
exercise of, personal jurisdiction by the state and federal courts
located in the State of Mississippi with respect to any action or
proceeding arising out of this Agreement.
16. Attorneys' Fees. The Company agrees to pay,
to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any
contest (only to the extent the Executive prevails in the outcome
thereof) by the Company of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a
result of any contest by the Executive about the amount of any
payment pursuant to this Agreement).
17. Severability. Should any provision hereof be
deemed, for any reason whatsoever, to be invalid or inoperative,
that provision shall be deemed severable and shall not affect the
force and validity of all other provisions of this Agreement.
18. Survival. All provisions which may reasonably
be interpreted or construed to survive the expiration or
termination of this Agreement shall survive the expiration or
termination of this Agreement.
19. Notices. Any notice, request or instruction to be
given hereunder shall be in writing and shall be deemed given
when personally delivered or three (3) days after being sent by
certified mail, postage prepaid, to the other party at such party's
address set forth below.
IF TO EXECUTIVE:
Michael E. Julian
c/o Jitney-Jungle Stores of America, Inc.
P.O. Box 3409
Jackson, Mississippi 39207-3409
IF TO COMPANY:
Jitney-Jungle Stores of America, Inc.
P.O. Box 3409
Jackson, Mississippi 39207-3409
Attention: W. H. Holman. Jr.
with a copy to:
Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser II
Each party may change the address to which notices from the
other party are to be sent by notifying such party of its new
address in accordance with this Section 16.
20. Waiver. No waiver of any condition, obligation
or term hereof shall constitute a waiver of any other or a waiver
of a subsequent right to demand strict compliance with all
conditions, obligations and terms hereof.
21. Successors. This Agreement, including the
documents and instruments referred to herein, shall inure to the
benefit of and be binding upon and enforceable against the heirs,
legal representatives, successors, and assigns of the parties
hereto.
22. Delegation of Duties. Executive may not
delegate or assign any of his duties or obligations hereunder.
With the exception of assigning duties to the Executive relating
to the business of the affiliates or any subsidiaries of the
Company and with the exception of an assignment to any
acquiror in connection with (i) an acquisition of 50% or more of
the Company's voting stock, (ii) a merger or consolidation of the
Company resulting in the holders of the Company's voting stock
immediately prior to such transaction holding less than 50% of
the total voting common stock of the surviving corporation after
such termination or (iii) a sale or exchange of all or substantially
all of the property or assets of the Company, the Company shall
have no right to assign this Agreement without Executive's
written consent.
23. Partial Invalidity. If any provision in this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall,
nevertheless, continue in full force and without being impaired
or invalidated in any way.
24. Entire Agreement. This Agreement contains the
entire agreement between the parties hereto with respect to the
transactions contemplated hereby and supersedes all prior
arrangements or understandings with respect thereto.
Executed as of the day and year first above written.
JITNEY-JUNGLE STORES OF AMERICA, INC.
("Company")
By:
Name:
Title:
MICHAEL E. JULIAN ("Executive")
EMPLOYMENT AGREEMENT
This Employment Agreement dated effective as of
December 8, 1997, is made and entered into by and between
Jitney-Jungle Stores of America, Inc., a Mississippi corporation
(the "Company"), and Ronald E. Johnson (the "Executive").
RECITALS
The Company desires to employ the Executive in the
business operated by the Company, according to the terms,
covenants and conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Executive
hereto agree as follows:
1. Employment and Duties. Subject to the terms
hereof, the Company employs Executive as President and Chief
Operating Officer of the Company and in such capacities with its
affiliates and subsidiaries as the Company shall designate, with
full authority to manage the day-to-day business of the
Company, subject only to the direction of the Company's Chief
Executive Officer and Board of Directors. Executive accepts
such employment and agrees to devote substantially his entire
professional time, attention and energies to the business of the
Company and to perform such additional responsibilities and
duties consistent with his position as provided in the Bylaws and
as may be assigned to him from time to time by the Board of
Directors. Executive shall work at the principal office of the
Company located in or near the Jackson, Mississippi
metropolitan area or at such other location in or near the
Jackson, Mississippi metropolitan area as the Board of Directors,
in its discretion, may select.
2. Extent of Services. Executive shall devote
substantially all his working time (during normal business hours)
and attention (other than during any illness and vacations) and
give his good faith efforts, skills and abilities to the management
and operations of the Company; it being understood and agreed
that Executive shall be permitted to manage his own personal
affairs and serve as director or officer of any trade association,
civic, corporate, educational or charitable organization or
governmental entity, provided that Executive's service does not
materially interfere with Executive's performance of his duties
hereunder. Executive shall report only and directly to the
Company's Chief Executive Officer and Board of Directors.
Notwithstanding the above, the Executive shall not be required
to perform any duties or responsibilities which would be likely
to result in non-compliance with or violation of any applicable
law or regulation.
3. Term. The initial term of this Agreement shall
commence as of the effective date hereof and, unless earlier
terminated pursuant to Section 8, shall continue thereafter until
terminated by either party upon the giving of at least thirty (30)
days' advance written notice.
4. Compensation. Executive's compensation under
this Agreement shall be as follows:
(a) Base Salary. Company shall pay
Executive a base salary ("Base Salary") at a rate of no
less than $400,000.00 per year from the date hereof.
The Base Salary shall be inclusive of all compensation
for any services Executive may be elected or selected to
perform (i) as a member of the Board of Directors of the
Company and/or any of its affiliates and subsidiaries, or
(ii) as a member of any appointed committees of such
Boards of Directors, including the Executive Committee.
In addition, the Board of Directors of Company shall, in
good faith, consider granting increases in such Base
Salary based upon such factors as Executive's
performance and the growth and/or profitability of the
Company and those affiliates and subsidiaries that
Executive is directed to serve. Executive's Base Salary
shall be paid in installments in accordance with the
Company's normal payment schedule for its senior
management. All payments shall be subject to the
deduction of payroll taxes and similar assessments as
required by law.
(b) Bonus. In addition to the Base Salary,
Executive shall be eligible each year for a cash bonus of
up to 100% of the Base Salary based upon his
performance in accordance with specific quarterly or
annual objectives as set forth under the Company's
Supervisory Personnel Bonus Plan or such other similar
plan as may be approved by the Board of Directors.
5. Fringe Benefits.
(a) The Company agrees to furnish an
automobile to Executive of his choice and to make such
automobile available for the Executive's exclusive use
during the period of his employment with the Company.
All maintenance, taxes and other operating costs shall be
paid by the Company, subject to appropriate withholding
requirements.
(b) The Company shall also make available
to Executive those benefits which are made available to
the executive officers of the Company as a group, which
benefits currently include, without limitation, 401(k)
plans, profit sharing plans, and health, dental, disability
and term life insurance (providing life insurance benefits
of $1,000,000.00).
6. Vacation. Executive shall be entitled to take
three weeks of paid vacation during each fiscal year in which he
is employed. Accrued but unused vacation shall be carried over
only in accordance with the Company's standard policies.
7. Expense Reimbursement. In addition to the
compensation and benefits provided in Sections 4, 5 and 6
hereof, the Company shall, upon receipt of appropriate
documentation, reimburse Executive for his reasonable travel,
lodging, entertainment, and other ordinary and necessary
business expenses incurred in the course of his duties on behalf
of the Company.
8. Termination of Employment.
(a) Either party may terminate Executive's
employment under this Agreement for any reason by
giving thirty (30) days' written notice to the other party.
In the event of a termination by the Company, the
Company may elect that the Executive cease all services
and leave the premises immediately. If the Company
terminates Executive's employment without Cause
pursuant to this Section 8(a) or if the Executive resigns
at the request (without Cause) of the Board of Directors
or terminates his employment for Good Reason (as
hereinafter defined), Executive shall be paid, in addition
to his Base Salary earned through the date of
termination, an amount equal to that percentage of the
average of Executive's bonuses for the previous three
(3) years, or the period of the actual employment if
shorter, determined by dividing the number of days in
the year prior to the date of termination by
365 and the Company shall pay
Executive as severance pay an amount equal to one
year's annual Base Salary plus 100% of the average of
his bonuses for the previous three (3) years, or the
period of his actual employment if shorter. The
Executive shall continue to receive all benefits under the
health benefit plans, practices, policies and programs
provided by the Company to the extent applicable
generally to other peer executives of the Company for a
period of the lesser of one year or until the date
Executive becomes re-employed with another employer
and is eligible to receive medical or other welfare
benefits under another employer provided plan. All cash
severance compensation amounts owed pursuant to this
Section 8(a) shall be paid within thirty (30) days
following the effective date of Executive's termination.
If Executive notifies the Company of his intention to
terminate his employment pursuant to this Section 8(a)
for any reason, the Company shall have the right to
accelerate the date of termination to a date on or after the
date of Executive's notice. The Executive's termination
of employment is deemed for "Good Reason," if any of
the following occurs without the Executive's written
consent: (i) the assignment to Executive of any duties
materially inconsistent with, or the substantial reduction
of powers or functions associated with, his positions,
duties, responsibilities and status with the Company
(other than changes in reporting or management
responsibilities required by applicable federal or state
law); (ii) a reduction by the Company of Executive's
salary or a material reduction in other benefits taken as a
whole (except to the extent such benefits are no longer
generally available to members of management of the
Company), except in connection with the termination of
such Executive's employment by the Company for
Cause (it being understood that failure to receive bonus
payments at the same level as in prior years or periods
shall not be deemed to be a reduction in salary); (iii) a
change in Executive's principal work location, except
for required travel on the Company's business; or (iv)
the willful and continuing failure by the Company
substantially to perform its obligations under this
Agreement; provided, however, "Good Reason" shall
not be deemed to exist hereunder unless the Company
shall have failed to cure any breach or nonperformance
within thirty (30) days after receipt by the Company of
written notice thereof from the Executive, which notice
shall be given by Executive promptly and in any event
within fifteen (15) days after any event that the
Executive believes constitutes "Good Reason." It is
hereby expressly acknowledged that the foregoing
definition of "Good Reason" shall be effective solely for
purposes of this Agreement and shall not be applicable
to any other agreement or understanding between
Executive and the Company. "Cause" when used in
connection with the termination of Executive's
employment with the Company, means (A) act or acts of
dishonesty or conviction of a felony by Executive;
provided acts of "dishonesty" shall not extend to
expense account items to the extent the items involved
are nominal and any error is attributable to carelessness
or committed in good faith within reasonable
interpretation of the Company's policies, (B) failure by
the Executive in any material respect as to his
obligations, services or duties hereunder, which
determination shall be made by the Board of Directors of
the Company acting in good faith; provided, however,
"cause" shall not be deemed to exist hereunder unless
the Executive shall have failed to cure any such breach
or nonperformance within thirty (30) days after receipt
by the Executive of written notice thereof from the
Company, (C) willful and deliberate violations of
Executive's obligations (whether such obligations are
designated by the Board of Directors or are set forth
herein) to the Company that result in material injury to
the Company and (D) misappropriation or
embezzlement of any funds or property of the Company
by the Executive. For purposes of this definition of
cause, no act or failure to act, shall be considered
"willful" unless done, or omitted to be done, (1) in bad
faith and without reasonable belief that the action or
omission was in the best interest of the Company or, (2)
in the event the direction of the Board of Directors is
unclear, without the reasonable belief that the action or
omission was in the best interest of the Company. In the
event that there is a disagreement regarding the
existence of Good Reason or Cause (other than for
conviction of a felony), either party may submit such
disagreement to arbitration under the rules of the
American Arbitration Association or such other
procedure as the parties may agree. The ruling of the
arbitration shall be final and binding on both parties.
The Company and the Executive shall each pay their
own arbitration costs unless the arbitrator's award
determines otherwise, in which case such costs,
expenses, and fees shall be paid in accordance with the
arbitrator's award. The arbitration proceeding shall be
conducted in Atlanta, Georgia.
(b) Notwithstanding anything to the
contrary in Section 8(a), the Company may terminate
Executive's employment, effective immediately upon
written notice to Executive or on any other dates
specified in such notice, for Cause. Termination by the
Company of Executive's employment for any other
reason shall be deemed for the purposes of this
Agreement to be without Cause.
(c) Executive's employment hereunder
shall terminate immediately upon his death or disability
except as to any right which Executive's estate or
dependents may have under COBRA or any other
federal or state law or which are derived independent of
this Agreement by reason of his participation in any plan
maintained by the Company. Executive or his estate
shall be entitled to receive the accrued Base Salary and
bonus through the date of termination, with the accrued
bonus being computed on a per diem basis based upon
the bonus which would have otherwise been payable to
the Executive for the fiscal year during which the date of
termination falls had the Agreement not been terminated,
computed on the same basis as in effect immediately
prior to the date of termination, which bonus shall be
paid as and when the same would have otherwise been
payable under the bonus plan had the Agreement not
been terminated. For purposes of this Section 8(c),
Executive shall be deemed to be disabled if, on account
of illness or other incapacity, he has been unable to
perform his duties for seventy-five (75) consecutive
days and, in the good faith judgment of the Board of
Directors, will be unable to perform his duties hereunder
for a period of twelve (12) consecutive months. The
Company shall continue to pay Executive his base salary
and other employment benefits hereunder prior to the
termination by the Board of Directors pursuant to this
Section 8(c) even though Executive is disabled during
that period of time.
(d) Severance payments due under Section
8(a) shall be paid when due regardless of whether
Executive accepts employment with a new employer.
(e) The Company and Executive
acknowledge that they are entering into a change of
control Agreement ("Control Agreement") regarding the
Executive's employment upon the event of a change of
control of the Company as defined in the Control
Agreement (the "Change of Control"). In the event of a
Change of Control the Control Agreement shall govern
Executive's future employment.
9. Confidentiality. From and after the date hereof,
Executive shall, and shall cause his affiliates and representatives
to, keep confidential and not disclose to any other person or use
for his own benefit or the benefit of any other person any trade
secrets or other confidential proprietary information in his or
their possession or control regarding the Company or its
affiliates or their respective businesses and operations. The
obligation of Executive under this Section 9 shall not apply to
information which (i) is or becomes generally available to the
public without breach of the commitment provided for in this
Section; or (ii) is required to be disclosed by law, order or
regulation of a court or tribunal or governmental authority;
provided, however, that, in any such case, Executive shall notify
the Company as early as reasonably practicable prior to
disclosure to allow the Company to take appropriate measures to
preserve the confidentiality of such information.
10. Stock Options. The Company has granted to
Executive, on terms to be set forth in the separate option
agreement attached hereto, options to acquire shares of capital
stock of the Company.
11. Competition; Solicitation. Executive hereby
agrees that during the Term he will not, unless authorized in
writing to do so by the Company, (a) directly or indirectly own,
manage, operate, join, control or participate in the ownership,
management, operation or control of, or be employed or
otherwise connected in any substantial manner with any business
which directly or indirectly competes to a material extent with
any line of business of the Company or its subsidiaries;
provided, that nothing in this Agreement shall prohibit Executive
from acquiring up to 2% of any class of outstanding equity
securities of any corporation whose equity securities are
regularly traded on a national securities exchange or in the
"over-the-counter market"; (b) recruit any employee of the
Company or solicit or induce, or attempt to solicit or induce, any
employee of the Company to terminate his or her employment
with, or otherwise cease his or her relationship with, the
Company; or (c) solicit, divert or take away, or attempt to solicit,
divert or to take away, the business or patronage of any of the
clients, customers or accounts as prospective clients, customers
or accounts, of the Company. Provided that the Company pays
the Executive (i) the severance payment due to Executive in
accordance with Section 8(a) hereof or, (ii) an amount equal to
the Section 8(a) severance payment within thirty (30) days
following the effective date of Executive's termination, the
covenants contained in the preceding sentence regarding
competition and solicitation shall extend for a period of one year
from the termination or expiration of the Term in consideration
for such payment.
12. Equitable Relief. The Company and Executive
confirm that the restrictions contained in Sections hereof are, in
view of the nature of the business of the Company, reasonable
and necessary to protect the legitimate interests of the Company
and that any violation of any provision of Sections will result in
irreparable injury to the Company. Executive hereby agrees
that, in the event of any breach or threatened breach of the terms
or conditions of this Agreement by Executive, the Company's
remedies at law will be inadequate and, in any such event, the
Company shall be entitled to commence an action for
preliminary and permanent injunctive relief and other equitable
relief in any court of competent jurisdiction.
13. Indemnity. The Company agrees to indemnify
Executive against all costs, charges and expenses incurred or
sustained by Executive in connection with any action, suit or
proceeding to which he may be a party by reason of being or
having been a director, officer or employee at the request of the
Company to the fullest extent permitted by applicable law.
14. Amendment. This Agreement contains and its
terms constitute the entire Agreement of the parties and
supersedes all prior Agreements regarding employment, and may
be amended only by a written document signed by both parties to
this Agreement.
15. Governing Law. This Agreement shall be
governed by the laws of the State of Mississippi. The parties
hereby irrevocably consent to, and waive any objection to the
exercise of, personal jurisdiction by the state and federal courts
located in the State of Mississippi with respect to any action or
proceeding arising out of this Agreement.
16. Attorneys' Fees. The Company agrees to pay,
to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any
contest (only to the extent the Executive prevails in the outcome
thereof) by the Company of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a
result of any contest by the Executive about the amount of any
payment pursuant to this Agreement).
17. Severability. Should any provision hereof be
deemed, for any reason whatsoever, to be invalid or inoperative,
that provision shall be deemed severable and shall not affect the
force and validity of all other provisions of this Agreement.
18. Survival. All provisions which may reasonably
be interpreted or construed to survive the expiration or
termination of this Agreement shall survive the expiration or
termination of this Agreement.
19. Notices. Any notice, request or instruction to be
given hereunder shall be in writing and shall be deemed given
when personally delivered or three (3) days after being sent by
certified mail, postage prepaid, to the other party at such party's
address set forth below.
IF TO EXECUTIVE:
Ronald E. Johnson
c/o Jitney-Jungle Stores of America, Inc.
P.O. Box 3409
Jackson, Mississippi 39207-3409
IF TO COMPANY:
Jitney-Jungle Stores of America, Inc.
P.O. Box 3409
Jackson, Mississippi 39207-3409
Attention: Michael E. Julian
with a copy to:
Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser II
Each party may change the address to which notices from the
other party are to be sent by notifying such party of its new
address in accordance with this Section 16.
20. Waiver. No waiver of any condition, obligation
or term hereof shall constitute a waiver of any other or a waiver
of a subsequent right to demand strict compliance with all
conditions, obligations and terms hereof.
21. Successors. This Agreement, including the
documents and instruments referred to herein, shall inure to the
benefit of and be binding upon and enforceable against the heirs,
legal representatives, successors, and assigns of the parties
hereto.
22. Delegation of Duties. Executive may not
delegate or assign any of his duties or obligations hereunder.
With the exception of assigning duties to the Executive relating
to the business of the affiliates or any subsidiaries of the
Company and with the exception of an assignment to any
acquiror in connection with (i) an acquisition of 50% or more of
the Company's voting stock, (ii) a merger or consolidation of the
Company resulting in the holders of the Company's voting stock
immediately prior to such transaction holding less than 50% of
the total voting common stock of the surviving corporation after
such termination or (iii) a sale or exchange of all or substantially
all of the property or assets of the Company, the Company shall
have no right to assign this Agreement without Executive's
written consent.
23. Partial Invalidity. If any provision in this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall,
nevertheless, continue in full force and without being impaired
or invalidated in any way.
24. Entire Agreement. This Agreement contains the
entire agreement between the parties hereto with respect to the
transactions contemplated hereby and supersedes all prior
arrangements or understandings with respect thereto.
Executed as of the day and year first above written.
JITNEY-JUNGLE STORES OF AMERICA, INC.
("Company")
By:
Name:
Title:
RONALD E. JOHNSON ("Executive")
EMPLOYMENT AGREEMENT
This Employment Agreement dated effective as of
January 1, 1998, is made and entered into by and between
Jitney-Jungle Stores of America, Inc., a Mississippi corporation
(the "Company"), and R. Barry Cannada (the "Executive").
RECITALS
The Company desires to employ the Executive in the
business operated by the Company, according to the terms,
covenants and conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Executive
hereto agree as follows:
1. Employment and Duties. Subject to the terms
hereof, the Company employs Executive as Chief Administrative
Officer, Executive Vice President and General Counsel of the
Company and in such capacities with its affiliates and
subsidiaries as the Company shall designate, with full authority
to manage the day-to-day business of the Company, subject only
to the direction of the Company's Chief Executive Officer and
Board of Directors, or at either of their direction, to the
Company's President and Chief Operating Officer. Executive
accepts such employment and agrees to devote substantially his
entire professional time, attention and energies to the business of
the Company and to perform such additional responsibilities and
duties consistent with his position as provided in the Bylaws and
as may be assigned to him from time to time by the Board of
Directors. Executive shall work at the principal office of the
Company located in or near the Jackson, Mississippi
metropolitan area or at such other location in or near the
Jackson, Mississippi metropolitan area as the Board of Directors,
in its discretion, may select.
2. Extent of Services. Executive shall devote
substantially all his working time (during normal business hours)
and attention (other than during any illness and vacations) and
give his good faith efforts, skills and abilities to the management
and operations of the Company; it being understood and agreed
that Executive shall be permitted to manage his own personal
affairs and serve as director or officer of any trade association,
civic, corporate, educational or charitable organization or
governmental entity, provided that Executive's service does not
materially interfere with Executive's performance of his duties
hereunder. Executive shall report only and directly to the
Company's Chief Executive Officer and Board of Directors, or
at either of their direction, to the Company's President and Chief
Operating Officer. Executive is specifically permitted to be a
member of the Board of Directors of Campus Crusade for Christ,
Inc., and its affiliates and to attend all meetings thereof.
Notwithstanding the above, the Executive shall not be required
to perform any duties or responsibilities which would be likely
to result in non-compliance with or violation of any applicable
law or regulation.
3. Term. The initial term of this Agreement shall
commence as of the effective date hereof and, unless earlier
terminated pursuant to Section 8, shall continue thereafter until
terminated by either party upon the giving of at least thirty (30)
days' advance written notice.
4. Compensation. Executive's compensation under
this Agreement shall be as follows:
(a) Base Salary. Company shall pay
Executive a base salary ("Base Salary") at a rate of
$250,000 from the effective date through June 30, 1998
and no less than $275,000.00 per year effective July 1,
1998. The Base Salary shall be inclusive of all
compensation for any services Executive may be elected
or selected to perform (i) as a member of the Board of
Directors of the Company and/or any of its affiliates and
subsidiaries, or (ii) as a member of any appointed
committees of such Boards of Directors, including the
Executive Committee. In addition, the Board of
Directors of Company shall, in good faith, consider
granting increases in such Base Salary based upon such
factors as Executive's performance and the growth
and/or profitability of the Company and those affiliates
and subsidiaries that Executive is directed to serve.
Executive's Base Salary shall be paid in installments in
accordance with the Company's normal payment
schedule for its senior management. All payments shall
be subject to the deduction of payroll taxes and similar
assessments as required by law.
(b) Bonus. In addition to the Base Salary,
Executive shall be eligible each year for a cash bonus of
up to 75% of Base Salary from the effective date
through June 30, 1998 and up to 100% of the Base
Salary effective July 1, 1998 and thereafter based upon
his performance in accordance with specific quarterly or
annual objectives as set forth under the Company's
Supervisory Personnel Bonus Plan or such other similar
plan as may be approved by the Board of Directors.
5. Fringe Benefits.
(a) The Company agrees to furnish an
automobile to Executive of his choice and to make such
automobile available for the Executive's exclusive use
during the period of his employment with the Company.
All maintenance, taxes and other operating costs shall be
paid by the Company, subject to appropriate withholding
requirements.
(b) The Company shall also make available
to Executive those benefits which are made available to
the executive officers of the Company as a group, which
benefits currently include, without limitation, 401(k)
plans, profit sharing plans, and health, dental, disability
and term life insurance.
(c) The Company shall also supply
reasonable secretarial support with an experienced legal
secretary.
(d) The Company shall also pay for
association dues and expenses associated with
continuing legal education requirements.
6. Vacation. Executive shall be entitled to take
four weeks of paid vacation during each fiscal year in which he
is employed. Accrued but unused vacation shall be carried over
only in accordance with the Company's standard policies.
7. Expense Reimbursement. In addition to the
compensation and benefits provided in Sections 4, 5 and 6
hereof, the Company shall, upon receipt of appropriate
documentation, reimburse Executive for his reasonable travel,
lodging, entertainment, and other ordinary and necessary
business expenses incurred in the course of his duties on behalf
of the Company.
8. Termination of Employment.
(a) Either party may terminate Executive's
employment under this Agreement for any reason by
giving thirty (30) days' written notice to the other party.
In the event of a termination by the Company, the
Company may elect that the Executive cease all services
and leave the premises immediately. If the Company
terminates Executive's employment without Cause
pursuant to this Section 8(a) or if the Executive resigns
at the request (without Cause) of the Board of Directors
or terminates his employment for Good Reason (as
hereinafter defined), Executive shall be paid, in addition
to his Base Salary earned through the date of
termination, an amount equal to that percentage of the
average of Executive's bonuses for the previous three
(3) years, or the period of the actual employment if
shorter, determined by dividing the number of days in
the year prior to the date of termination by 365 and the
Company shall pay Executive as severance pay an
amount equal to one year's annual Base Salary plus
100% of the average of his bonuses for the previous
three (3) years, or the period of his actual employment if
shorter. The Executive shall continue to receive all
benefits under the health benefit plans, practices,
policies and programs provided by the Company to the
extent applicable generally to other peer executives of
the Company for a period of the lesser of one year or
until the date Executive becomes re-employed with
another employer and is eligible to receive medical or
other welfare benefits under another employer provided
plan. All cash severance compensation amounts owed
pursuant to this Section 8(a) shall be paid within thirty
(30) days following the effective date of Executive's
termination. If Executive notifies the Company of his
intention to terminate his employment pursuant to this
Section 8(a) for any reason, the Company shall have the
right to accelerate the date of termination to a date on or
after the date of Executive's notice. The Executive's
termination of employment is deemed for "Good
Reason," if any of the following occurs without the
Executive's written consent: (i) the assignment to
Executive of any duties materially inconsistent with, or
the substantial reduction of powers or functions
associated with, his positions, duties, responsibilities and
status with the Company (other than changes in
reporting or management responsibilities required by
applicable federal or state law); (ii) a reduction by the
Company of Executive's salary or a material reduction
in other benefits taken as a whole (except to the extent
such benefits are no longer generally available to
members of management of the Company), except in
connection with the termination of such Executive's
employment by the Company for Cause (it being
understood that failure to receive bonus payments at the
same level as in prior years or periods shall not be
deemed to be a reduction in salary); (iii) a change in
Executive's principal work location, except for required
travel on the Company's business; or (iv) the willful and
continuing failure by the Company substantially to
perform its obligations under this Agreement; provided,
however, "Good Reason" shall not be deemed to exist
hereunder unless the Company shall have failed to cure
any breach or nonperformance within thirty (30) days
after receipt by the Company of written notice thereof
from the Executive, which notice shall be given by
Executive promptly and in any event within fifteen (15)
days after any event that the Executive believes
constitutes "Good Reason." It is hereby expressly
acknowledged that the foregoing definition of "Good
Reason" shall be effective solely for purposes of this
Agreement and shall not be applicable to any other
agreement or understanding between Executive and the
Company. "Cause" when used in connection with the
termination of Executive's employment with the
Company, means (A) act or acts of dishonesty or
conviction of a felony by Executive; provided acts of
"dishonesty" shall not extend to expense account items
to the extent the items involved are nominal and any
error is attributable to carelessness or committed in good
faith within reasonable interpretation of the Company's
policies, (B) failure by the Executive in any material
respect as to his obligations, services or duties
hereunder, which determination shall be made by the
Board of Directors of the Company acting in good faith;
provided, however, "cause" shall not be deemed to exist
hereunder unless the Executive shall have failed to cure
any such breach or nonperformance within thirty (30)
days after receipt by the Executive of written notice
thereof from the Company, (C) willful and deliberate
violations of Executive's obligations (whether such
obligations are designated by the Board of Directors or
are set forth herein) to the Company that result in
material injury to the Company and (D)
misappropriation or embezzlement of any funds or
property of the Company by the Executive. For
purposes of this definition of cause, no act or failure to
act, shall be considered "willful" unless done, or omitted
to be done, (1) in bad faith and without reasonable belief
that the action or omission was in the best interest of the
Company, or, (2) in the event the direction of the Board
of Directors is unclear, without the reasonable belief that
the action or omission was in the best interest of the
Company. In the event that there is a disagreement
regarding the existence of Good Reason or Cause (other
than for conviction of a felony), either party may submit
such disagreement to arbitration under the rules of the
American Arbitration Association or such other
procedure as the parties may agree. The ruling of the
arbitration shall be final and binding on both parties.
The Company and the Executive shall each pay their
own arbitration costs unless the arbitrator's award
determines otherwise, in which case such costs,
expenses, and fees shall be paid in accordance with the
arbitrator's award. The arbitration proceeding shall be
conducted in Atlanta, Georgia.
(b) Notwithstanding anything to the
contrary in Section 8(a), the Company may terminate
Executive's employment, effective immediately upon
written notice to Executive or on any other dates
specified in such notice, for Cause. Termination by the
Company of Executive's employment for any other
reason shall be deemed for the purposes of this
Agreement to be without Cause.
(c) Executive's employment hereunder
shall terminate immediately upon his death or disability
except as to any right which Executive's estate or
dependents may have under COBRA or any other
federal or state law or which are derived independent of
this Agreement by reason of his participation in any plan
maintained by the Company. Executive or his estate
shall be entitled to receive the accrued Base Salary and
bonus through the date of termination, with the accrued
bonus being computed on a per diem basis based upon
the bonus which would have otherwise been payable to
the Executive for the fiscal year during which the date of
termination falls had the Agreement not been terminated,
computed on the same basis as in effect immediately
prior to the date of termination, which bonus shall be
paid as and when the same would have otherwise been
payable under the bonus plan had the Agreement not
been terminated. For purposes of this Section 8(c),
Executive shall be deemed to be disabled if, on account
of illness or other incapacity, he has been unable to
perform his duties for seventy-five (75) consecutive
days and, in the good faith judgment of the Board of
Directors, will be unable to perform his duties hereunder
for a period of twelve (12) consecutive months. The
Company shall continue to pay Executive his base salary
and other employment benefits hereunder prior to the
termination by the Board of Directors pursuant to this
Section 8(c) even though Executive is disabled during
that period of time.
(d) Severance payments due under Section
8(a) shall be paid when due regardless of whether
Executive accepts employment with a new employer.
(e) The Company and Executive
acknowledge that they are entering into a change of
control Agreement ("Control Agreement") regarding the
Executive's employment upon the event of a change of
control of the Company as defined in the Control
Agreement (the "Change of Control"). In the event of a
Change of Control the Control Agreement shall govern
Executive's future employment.
9. Confidentiality. From and after the date hereof,
Executive shall, and shall cause his affiliates and representatives
to, keep confidential and not disclose to any other person or use
for his own benefit or the benefit of any other person any trade
secrets or other confidential proprietary information in his or
their possession or control regarding the Company or its
affiliates or their respective businesses and operations. The
obligation of Executive under this Section 9 shall not apply to
information which (i) is or becomes generally available to the
public without breach of the commitment provided for in this
Section; or (ii) is required to be disclosed by law, order or
regulation of a court or tribunal or governmental authority;
provided, however, that, in any such case, Executive shall notify
the Company as early as reasonably practicable prior to
disclosure to allow the Company to take appropriate measures to
preserve the confidentiality of such information.
10. Stock Options. The Company has granted to
Executive, on terms to be set forth in the separate option
agreement attached hereto, options to acquire shares of capital
stock of the Company.
11. Competition; Solicitation. Executive hereby
agrees that during the Term he will not, unless authorized in
writing to do so by the Company, (a) directly or indirectly own,
manage, operate, join, control or participate in the ownership,
management, operation or control of, or be employed or
otherwise connected in any substantial manner with any business
which directly or indirectly competes to a material extent with
any line of business of the Company or its subsidiaries;
provided, that nothing in this Agreement shall prohibit Executive
from acquiring up to 2% of any class of outstanding equity
securities of any corporation whose equity securities are
regularly traded on a national securities exchange or in the
"over-the-counter market"; (b) recruit any employee of the
Company or solicit or induce, or attempt to solicit or induce, any
employee of the Company to terminate his or her employment
with, or otherwise cease his or her relationship with, the
Company; or (c) solicit, divert or take away, or attempt to solicit,
divert or to take away, the business or patronage of any of the
clients, customers or accounts as prospective clients, customers
or accounts, of the Company. Provided that the Company pays
the Executive (i) the severance payment due to Executive in
accordance with Section 8(a) hereof or, (ii) an amount equal to
the Section 8(a) severance payment within thirty (30) days
following the effective date of Executive's termination, the
covenants contained in the preceding sentence regarding
competition and solicitation shall extend for a period of one year
from the termination or expiration of the Term in consideration
for such payment.
12. Equitable Relief. The Company and Executive
confirm that the restrictions contained in Sections hereof are, in
view of the nature of the business of the Company, reasonable
and necessary to protect the legitimate interests of the Company
and that any violation of any provision of Sections will result in
irreparable injury to the Company. Executive hereby agrees
that, in the event of any breach or threatened breach of the terms
or conditions of this Agreement by Executive, the Company's
remedies at law will be inadequate and, in any such event, the
Company shall be entitled to commence an action for
preliminary and permanent injunctive relief and other equitable
relief in any court of competent jurisdiction.
13. Indemnity. The Company agrees to indemnify
Executive against all costs, charges and expenses incurred or
sustained by Executive in connection with any action, suit or
proceeding to which he may be a party by reason of being or
having been a director, officer or employee at the request of the
Company to the fullest extent permitted by applicable law.
14. Amendment. This Agreement contains and its
terms constitute the entire Agreement of the parties and
supersedes all prior Agreements regarding employment, and may
be amended only by a written document signed by both parties to
this Agreement
15. Governing Law. This Agreement shall be
governed by the laws of the State of Mississippi. The parties
hereby irrevocably consent to, and waive any objection to the
exercise of, personal jurisdiction by the state and federal courts
located in the State of Mississippi with respect to any action or
proceeding arising out of this Agreement.
16. Attorneys' Fees. The Company agrees to pay,
to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any
contest (only to the extent the Executive prevails in the outcome
thereof) by the Company of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a
result of any contest by the Executive about the amount of any
payment pursuant to this Agreement).
17. Severability. Should any provision hereof be
deemed, for any reason whatsoever, to be invalid or inoperative,
that provision shall be deemed severable and shall not affect the
force and validity of all other provisions of this Agreement.
18. Survival. All provisions which may reasonably
be interpreted or construed to survive the expiration or
termination of this Agreement shall survive the expiration or
termination of this Agreement.
19. Notices. Any notice, request or instruction to be
given hereunder shall be in writing and shall be deemed given
when personally delivered or three (3) days after being sent by
certified mail, postage prepaid, to the other party at such party's
address set forth below.
IF TO EXECUTIVE:
R. Barry Cannada
c/o Jitney-Jungle Stores of America, Inc.
P.O. Box 3409
Jackson, Mississippi 39207-3409
IF TO COMPANY:
Jitney-Jungle Stores of America, Inc.
P.O. Box 3409
Jackson, Mississippi 39207-3409
Attention: Michael E. Julian
with a copy to:
Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser II
Each party may change the address to which notices from the
other party are to be sent by notifying such party of its new
address in accordance with this Section 16.
20. Waiver. No waiver of any condition, obligation
or term hereof shall constitute a waiver of any other or a waiver
of a subsequent right to demand strict compliance with all
conditions, obligations and terms hereof.
21. Successors. This Agreement, including the
documents and instruments referred to herein, shall inure to the
benefit of and be binding upon and enforceable against the heirs,
legal representatives, successors, and assigns of the parties
hereto.
22. Delegation of Duties. Executive may not
delegate or assign any of his duties or obligations hereunder.
With the exception of assigning duties to the Executive relating
to the business of the affiliates or any subsidiaries of the
Company and with the exception of an assignment to any
acquiror in connection with (i) an acquisition of 50% or more of
the Company's voting stock, (ii) a merger or consolidation of the
Company resulting in the holders of the Company's voting stock
immediately prior to such transaction holding less than 50% of
the total voting common stock of the surviving corporation after
such termination or (iii) a sale or exchange of all or substantially
all of the property or assets of the Company, the Company shall
have no right to assign this Agreement without Executive's
written consent.
23. Partial Invalidity. If any provision in this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall,
nevertheless, continue in full force and without being impaired
or invalidated in any way.
24. Entire Agreement. This Agreement contains the
entire agreement between the parties hereto with respect to the
transactions contemplated hereby and supersedes all prior
arrangements or understandings with respect thereto.
Executed as of the day and year first above written.
JITNEY-JUNGLE STORES OF AMERICA, INC.
("Company")
By:
Name:
Title:
R. BARRY CANNADA ("Executive")