UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended January 2, 1999
_______________
Commission file number 33-80833
________
JITNEY-JUNGLE STORES OF AMERICA, INC.
_____________________________________
(Exact name of registrant as specified in its charter)
Mississippi 64-0280539
______________________________ ______________________________________
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
1770 Ellis Avenue, Suite 200, Jackson, MS 39204
_________________________________________ _____
(Address of principal executive offices) (Zip Code)
(601) 965-8600
___________________________________________________
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
____
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
____
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. YES X NO
_______ _____
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained
herein, and will not be contained, to the best of registrant's
knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or
any amendment to this form 10-K. (X )
The Company is closely-held and is not actively traded;
therefore, the aggregate market value of voting stock held
by nonaffiliates is not applicable.
The number of shares of registrant's Common Stock, par
value one cent ($.01) per share, outstanding at April 2,
1999, was 425,280.
ITEMS SUBJECT TO FORM 12b-25
The following items of this Form 10-K are the subject of a Form 12b-25
report filed with the Commission on April 2, 1999, and are not included herein:
Items 6, 7, 8, 9, 14 (1), and 14 (27.1).
<PAGE>
CAUTIONARY NOTICE
_________________
This Annual Report on Form 10-K may contain
forward-looking statements regarding future expectations
about the Company's business, management's plans for
future operations or similar matters. The Company's actual
results could differ materially from those anticipated in
such forward-looking statements due to several important
factors including the following: deterioration in economic
conditions generally or in the Company's markets, unusual
or unanticipated costs or consequences relating to, or
changes in any acquisition and/or divestiture plans,
demands placed on management by the substantial increase
in the Company's size due to the acquisition of Delchamps,
unanticipated or unusual distribution problems, breakdown
of quality control, competitive pressures, restrictions and
costs associated with the Company's leveraged capital
structure and limitations imposed by its debt agreements,
labor disturbances, and customer dissatisfaction. Forward-
looking statements speak only as of the date made, and the
Company undertakes no obligation to update or revise such
statements to reflect new circumstances or unanticipated
events as they may occur.
<PAGE>
JITNEY-JUNGLE STORES OF AMERICA, INC.
TABLE OF CONTENTS
ITEM PAGE
____ ____
PART I
______
1. Business 3
2. Properties 8
3. Legal Proceedings 9
4. Submission of Matters to a Vote of Security
Holders 10
PART II
_______
5. Market for the Registrant's Common Equity and
Related Stockholder Matters 10
PART III
________
10. Directors and Executive Officers of the
Registrant 44
11. Executive Compensation 48
12. Security Ownership of Certain Beneficial
Owners and Management 52
13. Certain Relationships and Related Transactions 54
PART IV
_______
14. Exhibits, Financial Statement Schedules and
Reports on Form 8-K 56
<PAGE>
Item 1. Business
General
Jitney-Jungle Stores of America, Inc. and
subsidiaries (the "Company") is a leading operator of
supermarkets in the Southeast. As of January 2, 1999 the
Company operated 198 stores located throughout
Mississippi, Alabama and Louisiana and in selected
markets in Tennessee, Arkansas and Florida. The
Company is the largest supermarket operator in
Mississippi, with 82 stores.
On July 8, 1997, the Company entered into a
definitive merger agreement with Delchamps, Inc.
("Delchamps"), an Alabama corporation. On September
12, 1997, Delta Acquisition Corporation ("DAC") a wholly
owned subsidiary of the Company, completed an all cash
tender offer for shares of Delchamps and accepted for
payment approximately 75% of such shares. On November
4, 1997, DAC was merged with and into Delchamps.
Delchamps was the surviving corporation and became a
wholly-owned subsidiary of the Company. In connection
with the acquisition, the Company, among other things, (i)
issued and sold $200 million of unsecured senior
subordinated notes due 2007 (the "Senior Subordinated
Notes") and (ii) entered into a $150 million revolving credit
agreement (the "Senior Credit Facility") with Fleet Bank,
N.A., which replaced the then existing $100 million
revolving credit agreement ("Credit Facility") with Fleet
Bank, N.A.
The proceeds from the sale of the Senior
Subordinated Notes and the borrowing under the Senior
Credit Facility and the use of existing cash balances of the
Company were used to repay certain outstanding
Delchamps indebtedness, purchase Common Stock from
Delchamps shareholders and pay fees and expenses related
to the acquisition of Delchamps.
Through a public offering, the Company issued and
sold the Senior Subordinated Notes which bear interest at a
rate of 10 3/8% per annum, payable semi-annually on
March 15 and September 15 of each year. In addition, the
Company entered into a revolving credit agreement on
March 5, 1996 which provided a $100 million Credit
Facility and subsequently, on September 15, 1997 the
Company amended and restated the agreement to provide a
$150 million Senior Credit Facility. The Senior Credit
Facility was further amended and restated on March 1,
1999 to provide a $162.3 million facility. The borrowings
outstanding under the Senior Credit Facility at January 2,
1999 were $112.9 million. The commitments under the
Senior Credit Facility will terminate, and all loans
outstanding thereunder will be required to be repaid in full
on March 15, 2004. Both the Senior Subordinated Notes
and the Senior Credit Facility restrict future payment of
dividends.
On November 16, 1995, the Company and JJ
Acquisitions Corp. ("JJAC") entered into an Agreement
and Plan of Exchange and of Merger (the "Merger"). In
connection with the Merger on March 5, 1996, JJAC
among other things, (i) issued and sold $200 million of
unsecured senior notes due 2006 (the "Senior Notes"), (ii)
entered into a $100 million revolving credit agreement
("the Credit Facility") with Fleet Bank, N.A. (formerly
NatWest Bank, N.A.), (iii) issued and sold Common Stock
and a warrant in the aggregate amount of $7.4 million, and
(iv) issued and sold three classes of Preferred Stock in the
aggregate amount of $57.6 million. The proceeds from the
sale of the notes, the Common Stock, warrants and
Preferred Stock, together with borrowing under the Credit
Facility and the use of existing cash balances of the
Company were used to repay certain outstanding
<PAGE>
indebtedness, purchase Common Stock from existing
shareholders and pay fees and expenses related to the
Merger. JJAC was merged with and into the Company,
with the Company continuing as the surviving corporation.
Upon the completion of the Merger, Bruckmann, Rosser,
Sherrill & Co., L.P., owned 356,250 shares or
approximately 83.82% of the Company's outstanding
Common Stock on an undiluted basis.
Through a public offering, JJAC issued and sold the
Senior Notes which bear interest at a rate of 12% per
annum, payable semiannually on March 1 and September 1
of each year. In addition, on March 5, 1996, the Company
entered into the Credit Facility (which has been replaced by
the Senior Credit Facility). The Senior Notes restrict
future payment of dividends.
Store Formats
Through its 80 years of operations in the Southeast,
the Company has developed a strong consumer franchise,
with many of its stores located in prime, high-traffic sites
that provide significant competitive advantages. The
Company currently operates supermarkets under three
formats, each targeting specific market segments: (i)
conventional supermarkets operating under the "Jitney-
Jungle" and "Delchamps" name, (ii) combination food and
drug supermarkets operating primarily under the "Jitney
Premier" and "Delchamps Premier" name and (iii) discount
supermarkets operating primarily under the "Sack and
Save" name. The Company currently operates 198
supermarkets (161 conventional stores averaging
approximately 35,000 square feet, 21 Premier combination
stores averaging approximately 52,000 square feet and 16
discount stores averaging approximately 61,500 square
feet), 54 gasoline stations and 10 liquor stores including
recent changes made subsequent to fiscal year end. Of the
161 conventional, 54 have departments sufficient to be
combination stores but have not been converted to the
Premier format. All of the Company's conventional and
combination supermarkets utilize a "Hi-Lo" pricing
strategy (featuring competitive prices on all product
offerings as well as a selection of items that are promoted at
lower prices to generate increased customer traffic), offer a
wide range of specialty departments and deliver high levels
of service to customers. The Company has developed its
"Gold Card" frequent shopper program (which gives
customers discounts and promotions not available to non-
participating customers). This program has been in effect
in the Jitney stores since January 1997 and was introduced
in the Delchamps stores during the first half of 1998. Also,
the 21 combination supermarkets offer expanded general
and specialty merchandise, a wider range of full-service
departments, expanded beauty care and pharmacy
departments, and superior customer service. The
Company's 16 discount supermarkets utilize an everyday
low price strategy (featuring consistently low prices aimed
at the value conscious shopper). The discount
supermarkets have lower operating costs than the
conventional and combination supermarkets due to fewer
service departments, lower customer service levels and
enhanced productivity methods. The Company also
operates 54 gasoline stations and 10 liquor stores at
selected supermarket sites. The Company features
nationally advertised and distributed merchandise, and also
markets food products under a private label program.
Competition
The Company's business is highly competitive.
Competition is based primarily on supermarket location,
<PAGE>
price, service, convenience, cleanliness and product quality
and variety. The Company competes with several national,
regional and local supermarket chains. The Company is
also in competition with convenience stores, stores owned
and operated or otherwise affiliated with large food
wholesalers, unaffiliated independent food stores,
merchandise clubs, discount drugstore chains and discount
general merchandise chains. The Company's principal
competitors have greater financial resources than the
Company and could use those resources to take steps which
could adversely affect the Company's competitive position
and financial performance, and the Company's ability to
compete may be adversely affected by its high leverage and
the limitations imposed by its debt agreements.
Employees
As of March 31, 1999, the Company employed
approximately 17,000 people, of whom approximately 44%
were full-time and 56% were part-time employees. None
of the employees of the Company are covered by a
collective bargaining agreement.
The Company has an incentive compensation plan
covering its key management staff under which incentive
compensation for store operations is based upon the results
of profitability of the operations within the scope of their
management responsibility. Also, the Company has
established a Stock Option Plan pursuant to which certain
key management have been granted options to acquire
shares of common stock of the Company (subject to certain
restrictions) at a price determined at the time of issuance to
be an estimate of fair market value.
Trade Names, Service Marks, Trademarks and
Franchises
The Company uses a variety of trade names, service
marks and trademarks. Except for "Jitney-Jungle", "Sack
and Save", and "Pump and Save", the Company does not
believe any of such trade names, service marks or
trademarks are material to its business. "Jitney-Jungle" is
registered with the U.S. Patent and Trademark Office and
"Sack and Save", and "Pump and Save" are registered in
the various states where the company operates. The
Company is in the process of registering "Delchamps" with
the U.S. Patent and Trademark Office.
Environmental Matters
The Company is subject to federal, state and local
laws and regulations including those relating to
environmental protection, workplace safety, public health
and community right-to-know. The Company's
supermarkets are not highly regulated under environmental
laws since the Company does not engage in any industrial
activities at these locations. The principal environmental
requirements applicable to the Company's operations relate
to the ownership or use of tanks for the storage of
petroleum products, such as gasoline and diesel fuel, the
operation of on-site paper trash incinerators, and the
operation of an on-site printing facility. The Company
operates 56 locations (including all 54 of the Pump and
Save locations), and has retained responsibility for three
former facilities, at which petroleum products were stored
in underground tanks. The Company has instituted an
environmental compliance program designed to insure that
these tanks are in compliance with applicable technical,
operational and regulatory requirements, including periodic
<PAGE>
inventory reconciliation and integrity testing. The
Company also operates small incinerators at 18 locations
which burn paper trash and has air permits for these
facilities. In addition, the Company's printing facility is
subject to air and hazardous waste regulations. The
Company's locations may have asbestos-containing
materials which must be managed in accordance with
environmental laws and regulations. However, the
Company does not believe that the cost of such
management will be material. The Company believes that
the locations where it currently operates are in substantial
compliance with regulatory requirements.
The Company has undertaken programs to comply
with all current regulatory obligations. First, at five
locations, the Company had to comply with petroleum tank
upgrade or closure requirements under the Resource
Conservation and Recovery Act of 1980, as amended,
("RCRA") (including all applicable requirements of state
regulatory agencies) which were met by the end of 1998.
Second, during 1999, the Company is planning to complete
retrofitting of its chlorofluorocarbons ("CFC") chiller units
to utilize non-CFC based refrigerants pursuant to the phase-
out of CFCs under the Clean Air Act. Future events, such
as changes in existing laws and regulations or their
interpretation and the approach of other compliance
deadlines may or will give rise to additional compliance
costs or liabilities. Compliance with more stringent laws or
regulations, as well as different interpretations of existing
laws, may require additional expenditures by the Company
which may be material.
The Company may also be subject to requirements
related to the remediation of, or the liability for remediation
of, substances that have been released to the environment at
properties owned or operated by the Company or at
properties to which the Company sends substances for
treatment or disposal. Such remediation requirements may
be imposed without regard to fault and liability for
environmental remediation can be substantial. Other than
one previously owned property for which the Company
retained responsibility for a clean-up in progress at the time
of the sale, the Company has not been notified of any such
releases relating to off-site treatment or disposal or to
previously owned properties. However, 16 of the
Company's locations have been or currently are the subject
of environmental investigations or remediation, 12 as a
consequence of known or suspected petroleum-related leaks
or spills from storage tanks and four for minor spills or
releases unrelated to tank usage.
The Company may be eligible for reimbursement or
payment for remediation costs associated with future
releases from its regulated underground storage tanks and
has obtained such reimbursement in the past. The states in
which the Company operates each maintain a fund to assist
in the payment of remediation costs and injury or damage
to third parties from releases from certain registered
underground tanks. Subject to certain deductibles, the
availability of funds, compliance status of the tanks and the
nature of the release, these funds have been and may be
available to the Company for use in remediating releases
from its tank systems. Due to the availability of such
funds, the Company's unreimbursed cost for remediation at
all of the facilities which have had leaks or spills from
underground storage tanks has not been material. All
significant required expenditures in connection with the
clean up of such leaks and spills have been made at such
locations, except at two locations which are undergoing
remediation investigation and three other locations which
are currently being monitored. Remediation expenses at all
the locations which are currently the subject of
environmental investigation or remediation are anticipated
to cost up to $240,000 in fiscal 1999 and approximately
<PAGE>
$125,000 per year thereafter, substantially all of which is
subject to reimbursement as described above. In addition,
the Company has obtained insurance coverage for bodily
injury, property damage and corrective action expenses
resulting from releases of petroleum products from
underground storage tanks during the covered period at all
55 underground storage tank locations (54 Pump and Save
locations plus a transportation fuel island located in
Jackson, MS).
Other than expenditures relating to the remediation
of tank leaks and spills described above, the Company's
expenditures to comply with environmental laws and
regulations have primarily consisted of those related to tank
upgrading and retrofitting CFC chiller units. The Company
spent $170,000, $130,000, $914,000 and $468,000 for such
activities during fiscal 1998, 1997 stub, fiscal 1997 and
1996, respectively. Between approximately $175,000 and
$200,000 in expenditures are contemplated for retrofitting
the CFC units in fiscal 1999. All expenditures necessary to
upgrade all Pump and Save tanks to comply with 1998 tank
standards were completed in fiscal 1998. These regulatory
compliance costs are not covered by insurance.
Governmental Regulation
The Company is subject to regulation by a variety
of governmental agencies, including but not limited to the
United States Food and Drug Administration, the United
States Department of Agriculture and other federal, state
and local agencies.
Fiscal Year Change
The Company reports results of operations on a 52
or 53 week fiscal year. For fiscal years 1996 and 1997 the
fiscal year ended on the Saturday nearest to April 30 of
each year. The Company changed its fiscal year end on
January 3, 1998 to the closest Saturday to December 31 of
each year. This change created a "stub" year of 35 weeks
for fiscal year ended January 3, 1998.
<PAGE>
Item 2. Properties
___________________
The following table recaps store data for fiscal
1998, 1997 stub, 1997 and 1996:
<TABLE>
<CAPTION>
Fiscal
__________________________
1998 1997 1997 1996
stub
<S> <C> <C> <C> <C> <C>
______ ______ ______ ______
Stores Beginning of 217 105 103 106
Year
Acquired 118
Opened 3 2 4
Closed 22 6 7
______ ______ ______ ______
End of Year 198 217 105 103
====== ====== ====== ======
Store Composition Conventional 165 185 76 72
at Year End Combination 17 11 2 2
Discount 16 21 27 29
______ ______ ______ ______
Total 198 217 105 103
====== ====== ====== ======
Average Square Feet Conventional 35,300 35,000 26,500 26,000
Combination 52,000 56,000 56,900 56,100
Discount 61,500 60,000 57,800 57,100
Store Locations Mississippi 82 89 73 71
at Year End Alabama 49 53 11 11
Arkansas 5 5 5 5
Florida 15 17 2 2
Tennessee 6 7 7 7
Louisiana 41 46 7 7
______ ______ ______ ______
Total 198 217 105 103
====== ====== ====== ======
Gasoline Stations Beginning of 54 53 46 37
Year
Opened 2 2 7 11
Closed 2 1 0 2
______ ______ ______ ______
End of Year 54 54 53 46
====== ====== ====== ======
Gasoline Station Mississippi 45 45 43 38
Locations Alabama 2 2 2 2
at Year End Arkansas 2 2 2 1
Florida 0 1 1 1
Tennessee 5 4 4 3
Louisiana 0 0 1 1
______ ______ ______ ______
Total 54 54 53 46
====== ====== ====== ======
</TABLE>
All of the Company's store properties are leased,
with the exception of one store. These leases generally
<PAGE>
obligate the Company to pay its proportionate share of real
estate taxes, common area maintenance charges and
insurance costs. In addition, such leases generally provide
for percentage of sales rent when sales from the store
exceed a certain dollar amount. These leases are usually
long-term, with one or more renewal options. With the
exception of three leases which will expire in 1999 (two
of which are in negotiations for new leases) and with
the exception of four leases, one of which
will expire in each of the years 2001 through 2004, all
leases will expire between 2005 and 2043 if the Company
exercises all of its renewal options. The Company owns all
of its furnishing and fixtures in all supermarkets except for
approximately $3.2 million of supermarket point-of-sale
equipment which is leased, and has made various leasehold
improvements to these supermarket sites. It is anticipated
that the Company will own the furnishings and fixtures in
all supermarkets under construction.
At the beginning of the year, certain parties
affiliated with the Company held 20 leases, representing
approximately 23% of the dollar amount of the Company's
capital leases. Through disposition by these parties and/or
the Company, this number was reduced to 8 leases by the
end of the year and now represents approximately 6% of
the dollar amount of the Company's capital leases.
Management believes that each of these leases was
contracted for on an arm's length basis and contains terms
that are no less favorable to the Company than could have
been obtained with non-affiliated parties at the time each
was entered into.
The Company owns all of its warehouse and
distribution facilities except for a 120,000 square-foot dry
grocery and health and beauty care facility and a 177,000
square foot dry grocery warehouse which the Company
occupied in July 1998. The leases on these facilities expire
on July 31, 2004 and September 30, 2006, respectively
(including all renewal options). The table below details
Jitney-Jungle's warehousing and distribution facilities by
function. These warehouses and distribution facilities are
located in Jackson, Mississippi.
<TABLE>
<CAPTION>
Function Square Feet
________ ___________
<S> <C>
Dry Grocery ........................... 415,000
Dry Grocery (new) ..................... 177,000
Meat and Dairy ........................ 90,000
Dry Grocery and Health and Beauty Care. 120,000
Transportation and Damage Reclaim...... 73,000
Produce, Eggs and Floral............... 67,000
Frozen Foods........................... 79,000
_________
Total Warehouse....................... 1,021,000
=========
</TABLE>
During the year, management consolidated the
corporate headquarters of the Company's combined
operations into the existing corporate headquarters of
Jitney-Jungle in Jackson, Mississippi. A divisional office
was opened in Mobile and the Delchamps' Mobile
headquarters which occupied a 65,000 square-foot building
was closed and is presently being offered for sale. A 2.7
acre parcel adjacent to the headquarters was sold in
December 1998. In addition, the 665,900 square-foot
Hammond warehouse was closed and is also being offered
for sale (including a 175-acre parcel adjacent to the
warehouse). Likewise, ten undeveloped parcels of land
<PAGE>
owned by the Company are presently being offered for sale.
Item 3. Legal Proceedings and Legal Matters
In May 1998, the Company's wholly-owned
subsidiary Delchamps, Inc. instituted a proceeding in the
Circuit Court of Mobile County, Alabama petitioning the
court to determine the fair value (as defined in the Alabama
Business Corporation Act) of 689,884 shares of former
Delchamps, Inc. common stock held by persons purporting
to exercise dissenters' rights in connection with the
Delchamps Acquisition. Delchamps, Inc. estimates such
fair value to be $20 per share; the dissenting shareholders
have demanded payment of $68 per share. The Company
has deposited $20 per share in cash with the clerk of the
court, as required by law. In its financial statements, the
Company has accounted for the acquisition of these shares
at a price of $30 per share, which was the price paid by the
Company to other former Delchamps, Inc. shareholders.
Any final determination that the shares formerly held by
dissenting shareholders have a fair value of less or more
than $30 per share would be reflected as a decrease or
increase in the Company's goodwill, which is being
amortized over a 40 year period. The Company does not
expect the outcome of this matter to have a material effect
on the Company's results of operations or the price of the
acquisition, although no assurances can be given.
Pursuant to a Federal Trade Commission Consent
Order dated January 28, 1998, approving the Agreement
Containing Consent Order entered into in September 1997
by the Company in connection with the Delchamps
Acquisition, the Company may not acquire or lease any
supermarket for a 10-year period in Hancock, Harrison,
Jackson, Lamar, Forrest and Warren Counties in
Mississippi and Escambia County in Florida without
complying with notice and waiting period requirements
similar to those imposed under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976. Such counties,
generally, are those where stores were located which were
required to be divested by the Federal Trade Commission in
connection with the Delchamps Acquisition. Metropolitan
areas located in such counties include Vicksburg,
Hattiesburg, Gulfport, Biloxi, Pascagoula and Waveland,
Mississippi and Pensacola, Florida. The Company is
permitted to construct supermarkets in such counties
without prior notice to the Federal Trade Commission. In
addition, the Company is prohibited from attempting to
restrict the ability of any other person to operate a
supermarket that the Company (including Delchamps)
formerly owned in those counties.
Other than with respect to the foregoing matters, the
Company is not a party to any material pending legal
proceedings except ordinary litigation incidental to the
conduct of its business and the ownership of its properties.
Item 4. Submission of Matters to a Vote of Security Holders
There were no matters submitted to a vote of
security holders during the fourth quarter of its fiscal period
ended January 2, 1999.
<PAGE>
PART II
Item 5. Market for the Registrant's Common Equity
and Related Stockholder Matters
The Company is closely held and is not actively
traded at this time; therefore, there is not a current market.
As of January 2, 1999, there were thirty-five (35)
holders of record of Common Stock.
There were no dividends paid by Jitney-Jungle to its
shareholders during fiscal 1998, fiscal 1997 stub, fiscal
1997 or fiscal 1996. The Senior Subordinated Notes and
the Senior Credit Facility entered into by the Company
restrict future payment of dividends.
<PAGE>
PART III
PART III
Item 10. Directors and Executive Officers of the
Registrant
The Company's Board of Directors currently has
ten directors, each serving a one-year term of office (or
until a successor is duly elected and qualified). Executive
officers of the Company serve at the discretion of the Board
of Directors. For information concerning certain
arrangements with respect to the election of directors, see
Certain Relationships and Related Transactions--
Shareholders Agreement.
<TABLE>
<CAPTION>
Directors and Executive Officers
Name Age Position
<S> <C> <C>
W. H. Holman, Jr. 68 Chairman Emeritus, Director
Michael E. Julian 48 Chairman and Chief Executive Officer
Ronald E. Johnson 48 Director, President and Chief Operating Officer
R. Barry Cannada 43 Chief Administrative Officer, Executive Vice President
Richard D. Coleman 44 Executive Vice President, Chief Financial Officer
Directors and Executive Officers (Continued)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Stephen R. Harmon 46 Executive Vice President - Marketing and Merchandising
David R. Black 46 Senior Vice President, Finance - Assistant Secretary
Jerry L. Jones 47 Senior Vice President - Human Resources
Dane C. Truhett 41 Senior Vice President - Information Services
W. H . Holman, III 35 Secretary
Donald D. Bennett 62 Director
Bruce C. Bruckmann 45 Director
Joseph H. Fernandez 46 Director
Roger P. Friou 64 Director
John M. Moriarty, Jr. 42 Director
Harold O. Rosser, II 50 Director
Stephen C. Sherrill 45 Director
</TABLE>
W. H. Holman, Jr., has been Chairman Emeritus
since August, 1998 and previously served as Chairman
from 1967 to 1998 and as Chief Executive Officer from
1967 until February 1997. Mr. Holman is the father of W.
H. Holman, III.
Michael E. Julian has been Chairman of the Board
since August, 1998 and Chief Executive Officer since
February 1997 and served as President from May 1997 to
December 1997. He has also served as a director since
April 1996. From September 1988 to May 1997, Mr.
Julian was Chairman, President and Chief Executive
Officer of Farm Fresh, Inc. ("Farm Fresh"). *
<PAGE>
Directors and Executive Officers (Continued)
Ronald E. Johnson has been a director since May
1996 and President and Chief Operating Officer since
December 1997. He served as Chairman
and Chief Executive Officer of Farm Fresh from February
1997 to March 1998. From January 1995 to January
1997, Mr. Johnson served as Chairman, President and
Chief Executive Officer of Kash n' Karry Food Stores,
Inc. ("Kash n' Karry") and prior to January 1995 as
Executive Vice President and Chief Operating Officer of
Farm Fresh.*
R. Barry Cannada has been Chief
Administrative Officer since July of 1998 and Executive
Vice President, General Counsel, and Assistant Secretary
since January 1998. Mr. Cannada previously was as a
partner with the law firm of Butler, Snow, O'Mara,
Stevens & Cannada, PLLC from 1981 to 1997.
Richard D. Coleman was appointed as Executive
Vice President and Chief Financial Officer of the
Company effective January 4, 1999. Prior to joining the
Company, he served as Executive Vice President -
Administration and Chief Financial Officer of Farm
Fresh from March 1997 through March 1998. Mr.
Coleman was employed by Kash n' Karry as Vice
President and Controller from 1988 through 1995 and as
Senior Vice President of Administration and Chief
Financial Officer from 1996 until January 1997.*
Stephen R. Harmon has been Executive Vice
President-Marketing and Merchandising since June, 1997.
Mr. Harmon served as Retail Grocery-Senior Vice
President-Merchandising of Farm Fresh from 1982 to
June 1997.*
David R. Black has been the Senior Vice
President - Finance and Assistant Secretary since 1996.
From 1996 until January of 1999, he also served as Chief
Financial Officer. Mr. Black joined the Company in 1976
and has held various other positions with the Company
including Treasurer, Controller and Assistant Controller.
Directors and Executive Officers (Continued)
<PAGE>
Jerry L. Jones has been the Senior Vice President
of Human Resources since January of 1999. In the latter
half of 1998 he served as Senior Vice President of Risk
Management. Prior to that he served as Senior Vice
President of Special Projects. From April 1997 to January
1998 he served as Senior Vice President of
Administration. He was the Senior Vice President -
Retail Operations from March 1996 to April 1997. He
previously served as Senior Vice President - Human
Resources since 1991. Prior to that, he served as Vice
President, Human Resources from 1989.
Dane C. Truhett has been the Senior Vice
President of Information Services since January 1999,
Vice President of Information Services since November
1997, and Director of Application Development since
1994. Prior to that time, Mr. Truhett was employed by
IBM as a consultant.
W. H. Holman, III has been Secretary since 1996.
He is also President of Pump And Save, Inc., the
Company's gasoline station subsidiary. He has 13 years of
supermarket industry experience, and previously served as
the Company's Senior Vice President-Sales and
Marketing. Mr. Holman is the son of W. H. Holman, Jr.
Donald D. Bennett has been a director since
September 1997. Mr. Bennett has been Chairman of the
Board of Richfood Holdings, Inc. since 1980.
Bruce C. Bruckmann has been a director since
1996 and a principal of the BRS Fund since its formation
in 1995. Mr. Bruckmann was an officer and subsequently
a Managing Director of Citicorp Venture Capital from
1983 through 1995. Previously, Mr. Bruckmann was an
associate at the New York law firm of Patterson, Belknap,
Webb & Tyler. Mr. Bruckmann is a director of Mediq,
Incorporated, Penhall International, Inc. and Town Sports
International, Inc.
Directors and Executive Officers (Continued)
<PAGE>
Joseph H. Fernandez has been a director since
December 1998. He is currently an independent investor.
Previously he was the Chairman of the Board, President
and CEO of Buttrey Food and Drug Stores Company
from September 1996 to October 1998. From September
1993 to September of 1996, Mr. Fernandez served as
President, CEO and director of the same company.
Roger P. Friou has been a director since 1984 and
a private investor since May 1997. Between March 1996
and May 1997 he served as President of the Company,
and between 1991 and 1996 he served as Vice Chairman,
Chief Financial Officer and Secretary. Other positions
previously held by Mr. Friou at the Company include
Executive Vice President and Vice President--Finance and
Controller. Mr. Friou is a director of Parkway Properties,
Inc.
John M. Moriarty, Jr. has been a director since
1996. He has been a Managing Director of Donaldson,
Lufkin & Jenrette Securities Corporation since 1989 and a
Managing Director of DLJ Merchant Banking, Inc. since
1996.
Harold O. Rosser II has been a director since 1996
and a principal of the BRS Fund since its formation in
1995. Mr. Rosser was an officer and subsequently a
Managing Director of Citicorp Venture Capital from 1987
through 1995. Previously, he spent 12 years with
Citicorp/Citibank in various management and corporate
finance positions. Mr. Rosser is a director of B&G Foods,
Inc. and Penhall International, Inc.
Stephen C. Sherrill has been a director since 1996
and a principal of the BRS Fund since its formation in
1995. Mr. Sherrill was an officer and subsequently a
Managing Director of Citicorp Venture Capital from 1983
through 1995. Previously, he was an associate at the New
York law firm of Paul, Weiss, Rifkind, Wharton &
Garrison. Mr. Sherrill is a director of Alliance Laundry
Systems, LLC, Galey & Lord, Inc., B&G Foods, Inc.,
Mediq Incorporated.
Directors and Executive Officers (Continued)
<PAGE>
*Farm Fresh filed a voluntary petition under
federal bankruptcy laws in connection with a "pre-
packaged" bankruptcy in January 1998, and the plan of
reorganization was confirmed by the Bankruptcy Court in
February 1998 and became effective in March 1998.
Kash n' Karry filed a voluntary petition under federal
bankruptcy laws in connection with a "pre-packaged"
bankruptcy in November 1994. The plan of
reorganization was confirmed by the Bankruptcy Court
and became effective in December 1994.
Item 11. Executive Compensation
The following table summarizes the compensation
paid or accrued by the Company during fiscal 1998, 1997
stub, 1997 and 1996 for the Chief Executive Officer and
for each of the four most highly compensated executive
officers of the Company during fiscal 1998. The table
also includes one other individual who was not an
executive officer during fiscal 1998 but whose
compensation would have placed him among the most
highly compensated officers.
<PAGE>
<TABLE>
<CAPTION>
Summary Compensation Table
_______________________________________________________________________________________________________________
Annual Compensation Long-Term Compensation
____________________________________ _______________________________
Other
Annual Securities All Other
Compen- Underlying LTIP Compen-
Name and Principal Position Year Salary Bonus sation Options Payouts sation
<FN1> <FN2> <FN2>
___________________________ ____ ______ _____ __________ ________ _______ ________
<S> <C> <C> <C> <C> <C> <C> <C>
Michael E. Julian, Chairman 1998 $450,000 $450,000 $7,089 $49,692 <FN5>
and Chief Executive Officer<FN4> 97stub 253,846 248,077 1,353 13,100 263
1997 57,692 75,000 170,000 <FN6>
Ronald E. Johnson, President 1998 400,000 400,000 56,350 2,030 <FN7>
and Chief Operating Officer 97stub 30,769 30,769 10,400
W.H. Holman, Jr., Former Chairman 1998 350,000 2,778 18,556 <FN8>
Current Chairman Emeritus<FN4> 97stub 235,577 117,788 1,988 10,583
1997 331,182 162,920 2,633 15,795
1996 315,100 121,193 2,216 1,894,039 15,840
R. Barry Cannada, Chief 1998 264,904 231,250 2,237 2,237 <FN9)
Administrative Officer, Executive 97 stub 5,385
Vice President, General Counsel
and Assistant Secretary
Stephen R. Harmon, Executive Vice 1998 175,000 87,503 11,888 8,687 <FN10>
President Merchandising and 97stub 114,231 67,115 1,200
Marketing
David R. Black, Senior Vice 1998 150,000 75,000 1,507 6,136 <FN11>
President- Finance 97 stub 94,330 76,775 1,112 850 2,024
1997 125,000 9,865 1,513 2,835
1996 120,768 13,846 1,327 2,820
</TABLE>
<FN1> Other annual compensation includes the annual estimated value
of an automobile furnished by the Company. Additionally, for
Messrs. Julian, Johnson and Harmon annual compensation also
includes $3,571, $52,795 and $9,425, respectively, for amounts
paid in connection with relocation.
<FN2> Represents number of shares of securities granted by stock
option in applicable periods.
<FN3> Includes distributions from the Company's deferred
compensation plan. During fiscal 1996, the Company recognized
a special charge of approximately $1.8 million attributable to an
employment agreement which allows future payments to be
received by Mr. Holman, of which $493,768 was received by
Mr. Holman in fiscal 1998.
<FN4> Effective August 14, 1998, Mr. Holman resigned his position as
Chairman of the Board and assumed the position of Chairman
Emeritus. Simultaneously, Mr. Julian was named Chairman of
the Board.
<FN5> Consists of $42,855 paid in premiums for a whole life insurance
policy for the benefit of Mr. Julian, $2,030 in premiums for
group term life insurance and $4,807 in Company contributions
under the 401(k) Plan.
<FN6> Consists of fees for consulting services provided to the Company
by Mr. Julian prior to his employment with the Company as
Chief Executive Officer.
<FN7> Consists of premiums for group term life insurance.
<FN8> Consists of $14,700 in premiums for group term life insurance
and $3,856 in Company contributions under the 401(k) Plan.
<FN9> Consists of premiums for group term life insurance.
<FN10> Consists of $1,045 in premiums for group term life insurance
and $1,683 in Company contributions under the 401(k) Plan.
<FN11> Consists of $871 in premiums for group term life insurance and
$5,265 in Company contributions under the 401(k) Plan.
<PAGE>
STOCK OPTION PLAN
The Company has in effect an employee stock
option plan pursuant to which options to
purchase Common Stock of the Company are granted to
certain executives and key officers of
the Company. There were no option grants during the
1998 fiscal year.
Aggregated Exercised Options and
Fiscal Year-End Option Values
The following table summarizes the number and
value of all unexercised options held by
the aforementioned executive officers at January 2, 1999.
There were no options granted in Fiscal 1998.
<TABLE>
<CAPTION>
Value of
Unexercised
Shares In-th-Money
Acquired on Options Options at
Exercised Exercisable at Fiscal Year End
Name Options Value Realized Fiscal Year End ($)(FN1)
____ ___________ ______________ _______________ _______________
exercisable/ exercisable/
unexercisable unexercisable
<S> <C> <C> <C> <C>
Michael E. Julian ---- ---- 4366.67/8733.34 224,883.50/
<FN2>,<FN3> 449,767.01
Ronald E. Johnson ---- ---- 3466.67/6933.34
<FN2>,<FN3> 0/0
R. Barry Cannada ---- ---- 1795/3590 <FN2>,<FN3> 0/0
Stephen R. Harmon ---- ---- 400/800 <FN2> 0/0
David R. Black ---- ---- 566.67/283.33 <FN2> 34,850.20/
17,424.79
W. H. Holman, Jr. ---- ---- ----/---- 0/0
____________________
</TABLE>
<FN1> Assumes the value of the Common Stock as of January
2, 1999 was equal to $ 124.00 per share, as set by the
Compensation Committee in December of 1998 for tax
reporting purposes. The value is based, as of January 1,
1998, upon the same formula used to acquire the stock
of the Company in the recapitalization of the Company
in March of 1996. In the opinion of the Compensation
Committee, the business of the Company and the
market factors since January of 1998 do not merit any
change in that assessment of value.
<FN2> Shares vest in 1/3 portions, the first third beginning on
the first anniversary of the Vesting Commencement
Date, and the second and third portions respectively on
the second and third anniversaries of the Vesting
Commencement Dates.
<FN3> Shares fully vest (a) upon the initial public offering, or
(b) change of control, subject to shareholder approval.
<PAGE>
Compensation of Directors
Each non-employee director of the Company is
paid an annual retainer of $12,000 plus fees of $1,000 for
each board meeting attended and $500 for each committee
meeting attended. Directors are also eligible to receive
grants of stock options, stock purchase rights and other
stock-based awards under the Company's 1997 Stock
Plan. Directors who are employees of the Company do
not receive additional compensation as directors.
Employment Agreements
W. H. Holman, Jr. has an employment contract
with the Company providing for a term of employment
through February 28, 2001. The agreement provides that
Mr. Holman, Jr. will serve as Chairman of the Board and
as Chief Executive Officer, at the discretion of the Board
of Directors. The Board of Directors appointed Michael
E. Julian as Chief Executive Officer in January 1997 and
Chairman in August 1998. Pursuant to his employment
contract, Mr. Holman will continue to serve on the Board
of Directors as Chairman Emeritus until February 28,
2001, with a salary equal to his current salary until
February 28, 1999, and and no less than $152,848 salary
thereafter.
Effective February 23, 1997, December 8, 1997,
January 1, 1998, respectively, the Company entered into
employment agreements with Messrs. Julian, Johnson and
Cannada. The agreements provide for an annual salary of
$450,000, $400,000 and $250,000 ($275,000 after July 1,
1998), and an annual bonus of up to 100%, 100% and
75% (100% after July 1, 1998) of such annual salary for
Messrs. Julian, Johnson and Cannada, respectively. In
addition, the Company has agreed to pay 20% of the
difference between the exercise price and the fair market
value of the exercised shares should Mr. Julian exercise
his options during his employment by the Company.
Either the Company or the officer may terminate the
agreement upon thirty days notice. If the Company
terminates the employment of Messrs. Julian, Johnson or
<PAGE>
Cannada, without cause or the officer terminates for good
reason, the Company must pay such officer a sum equal to
his prorata bonus and severance equal to one year salary
plus estimated bonus. In addition, the officer will be
entitled to exercise any vested options within three
months of the termination of his employment. Each
executive has agreed not to compete for a period of one
year after the termination of his employment.
Messrs. Julian, Johnson, Cannada, each have
entered into change of control agreements with the
Company. These agreements provide that if the officer's
employment terminated within two years following a
change in control by the Company other than for cause or
by the officer for good reason, or if the officer is
terminated by the Company in anticipation of the change
of control, (i) the officer will be entitled to receive a lump
sum severance amount equal to two times such officer's
annual salary and bonus and, (ii) if any payment to the
officer pursuant to the change of control Agreement
would be subject to the 20% excise tax on excess
parachute payments, the officer's payment shall be
reduced to the greater of (i) the greatest amount that
would not be subject to such an excise tax, or (ii) the
amount that would result in the greatest after-tax benefit
to the executive. A change of control is generally defined
to occur upon (i) an acquisition of 20% or more of the
total voting power of the outstanding securities of the
Company (provided that as long as Bruckmann, Rosser,
Sherrill & Co., L.P., beneficially own either (a) more
common stock than the acquiring party, or (b) 20% or
more of the common stock of the Company, a change of
control shall not have occurred), (ii) a change in a
majority of the members of the Company's Board of
Directors, (iii) the consummation of certain mergers or
reorganizations, or (iv) approval by the stockholders of
dissolution or liquidation of the Company.
Committees and Meetings of the Board
The Board of Directors held four regular meetings
during Fiscal 1998. All directors attended at least 75% of
the total meetings of the Board of Directors and the
committees of which they were members.
<PAGE>
The Company has a Compensation Committee of
the Board of Directors that is responsible for determining
annual salaries and bonuses paid to the Company's senior
management and administering the Company's stock
option and benefit programs. The current members of the
Compensation Committee are Messrs. Friou and Rosser.
There was one meeting of the Compensation Committee
during Fiscal 1998.
The Company has an Audit Committee that
reviews external and internal auditing matters and
recommends the selection of the Company's auditors for
approval by the Board of Directors. The members of the
Audit Committee are Messrs. Bruckmann, Friou and
Moriarty. There were three meetings of the Audit
Committee during Fiscal 1998.
401(k) Plan
The Company maintains the Jitney-Jungle Stores
of America, Inc. and Affiliates Profit Sharing Plan and
Trust (the 401(k) Plan) for the benefit of its employees
who have satisfied the plan's eligibility requirements.
Participants are permitted to make pretax salary reduction
contributions, up to the amount permitted under
applicable tax law. The Company makes a matching
contribution equal to 50% of each participant's salary
reduction contribution, up to a maximum of 2% of the
participant's compensation. In addition, the Company
may make additional profit sharing contributions at its
discretion. Although in prior years the Company has
made discretionary profit sharing contributions, it has no
obligation to do so in the future. Company contributions
become vested when the participant has been credited
with five years of service.
Item 12. Security Ownership of Certain Beneficial
Owners and Management
The following table sets forth certain information
regarding the beneficial ownership
of Common and Preferred Stock as of January 2, 1999,
by (i) each director, (ii) the named executive officers set
forth in Item 11; and (iii) all executive officers and
<PAGE>
directors as a group and (iv) the Company's principal
stockholders. Other than as set forth in the table below,
there are no persons known to the Company to
beneficially own more than 5% of the Common Stock.
No Company securities are owned by John M. Moriarty,
Jr., Donald D. Bennett or Joseph H. Fernandez, each of
whom is a director of the Company.
<TABLE>
<CAPTION>
Number and Number and Number and Number and
Name and Address Percentage of Percentage of Percentage of Percentage of
for Beneficial Shares of Shares of Class A Shares of Class B Share of Class C
Owners over 5% Common Stock Preferred Stock Preferred Stock Preferred Stock
_________________ ________________ _______________ _______________ _______________
<S> <C> <C> <C> <C>
Bruckmann, Rosser,
Sherrill & Co., L.P. 353,750/83.18%<FN1> ---- ---- 75,508/75.60%<FN1>
126 East 56th Street
New York, NY 10022
W. H. Holman, Jr. 29,699/6.98% <FN2> ---- 21,516/7.84%<FN3> 4,742/4.75%
Jitney-Jungle Stores
of America, Inc.
P. O. Box 3409
Jackson, MS 39207
DLJ Merchant <FN4> ---- ---- 15,000/15.02%
Banking Partners,
L.P. and related investors
277 Park Avenue
New York, NY 10172
Michael E. Julian 2,500/* ---- ---- 579/*
Roger P. Friou 12,510/2.94% ---- 14/ * <FN3> 1,252/1.25%<FN3>
Bruce C. Bruckmann 353,750/83.18%<FN1><FN5> ---- ---- 75,508/75.60%<FN1>
Harold O. Rosser, II 353,750/83.18%<FN1><FN6> ---- ---- 75,508/75.60%<FN1>
Stephen C. Sherrill 353,750/83.18%<FN1><FN7> ---- ---- 75,508/75.60%<FN1>
Ronald E. Johnson ---- ---- ---- 20/*
R. Barry Cannada ---- ---- ---- 20*
Stephen R. Harmon 1,800/*
David R. Black 850/* ---- ---- 85/*
All directors and
executive officers
as a group <FN12> 406,108/95.49% ---- 21,530/7.84%<FN3> 97,705/97.82%
</TABLE>
<PAGE>
*Owns less than 1% of the total outstanding Common Stock, Class B
Preferred Stock and Class C Preferred Stock.
<FN1> The 353,750 shares of Common Stock include
331,732 shares of common stock owned directly by
Bruckmann, Rosser, Sherrill & Co., Inc., L.P.
("BRS") and 22,018 shares to which BRS possesses
sole voting power. The 75,508 shares of Class C
Preferred Stock include 70,808 shares owned
directly by BRS and 4,700 shares in which it has a
beneficial interest. BRS is a limited partnership, the
sole general partner of which is BRS Partners and
the manager of which is BRS. The sole general
partner of BRS Partners is BRSE Associates. Bruce
C. Bruckmann, Harold O. Rosser, II, Stephen C.
Sherrill and Stephen F. Edwards are the only
stockholders of BRS and BRSE Associates and may
be deemed to share beneficial ownership of the
shares shown as beneficially owned by the Fund.
Such individuals disclaim beneficial ownership of
any such shares.
<FN2> Includes 10,000 shares of common stock owned
directly and 19,699 shares to which Mr. Holman
possesses sole voting power.
<FN3> All shares of Class B Preferred Stock, and 7,119
shares of Class C Preferred Stock, are owned by
Trustmark National Bank ("Trustmark") pursuant to
an escrow agreement by and among Trustmark, the
Company and former Common Stock shareholders
of the Company. Certain of the officers of the
Company own an interest in the escrow account
through which they have a beneficial interest in the
number of shares of Class B Preferred Stock and
Class C Preferred Stock listed in this table.
<FN4> DLJ Merchant Banking Partners, L.P. ("DLJ") and
related investors have received outstanding warrants
to purchase 15.0%, on a fully diluted basis, of the
outstanding Common Stock of the Company as
outlined in the Shareholders Agreement referred to
under Item 13.
<FN5> Includes 6,605 shares of common stock owned
directly and 347,145 shares to which BRS
possesses sole voting power.
<FN6> Includes 1,327 shares of common stock owned
directly and 352,383 shares to which BRS
possesses sole voting power.
<FN7> Includes 6,812 shares of common stock owned
directly and 349,327 shares to which BRS
possesses sole voting power.
<PAGE>
Item 13. Certain Relationships and Related Transactions.
BRS is entitled to receive 1% of earnings before
interest, income taxes, depreciation, amortization and
certain special charges annually, with a minimum of
$1.0 million per year, computed on a quarterly basis
from the Company as a management fee for the
performance of strategic and financial planning services
in the future. BRS received $1.2 million during the fiscal
year ended 1998. Messrs. Bruckmann, Rosser, Sherrill
and Edwards (not a director of the Company) are the
only stockholders of BRS and BRSE Associates. BRSE
Associates is the sole general partner of BRS Partners,
which is the sole general partner of BRS. BRS is the
majority stockholder of the Company.
At the beginning of the year, W. H. Holman, Jr.,
W. H. Holman, III, Roger P. Friou and another officer
(Clyde Staley) owned in the aggregate noncontrolling
interests in certain partnerships that were landlords
under twenty (20) leases (involvement is Holman, Jr., 18
leases; Holman, III, 6 leases; Staley, 5 leases; and Friou,
9 leases) for stores or other facilities where the
Company and its subsidiaries are the tenants. Through
disposition by these parties and/or the Company, the
number was reduced to 8 leases by the end of the year
(Holman, Jr., 6 leases, Holman III, 2 leases, Friou, 6
leases and Staley, 3 leases). During fiscal year 1998, the
Company paid a combined total rent under these twenty
(20) leases of approximately $2.7 million. Management
believes that each of these leases was on an arm's length
basis and were on terms that are no less favorable to the
Company than could have been obtained with non-
affiliated parties at the time each lease was entered into.
Certain shareholders of the Company, entered
into a Shareholders Agreement which contains certain
agreements among such shareholders with respect to the
capital stock and corporate governance of the Company.
The shareholders involved are the Fund, DLJ, and
Messrs. W. H. Holman, Jr., Roger P. Friou, and W. H.
Holman, III. Agreements regarding corporate
governance and the capital stock of the Company were
also entered into by the Company, the Fund, Messrs.
W.H. Holman, Jr., Roger Friou, W.H. Holman, III,
Jerry Jones, Stephen R. Harmon, David
R. Black, and various other current or former
employees in the Securities
Purchase and Holders Agreement. Among other
matters, the various shareholder agreements bind the
parties to vote for a majority of the directors to be
designated by BRS, one director to be designated by
DLJ and one director to be W. H. Holman, Jr.
During fiscal 1998, the Company loaned Ronald
E. Johnson, President and Chief Operating Officer,
$300,000 in connection with his relocation to Jackson,
MS. This loan was subsequently repaid with interest at
the rate of 8.25% prior to the end of the fiscal year.
During fiscal 1998, the Company reacquired
1,700 shares of the Company's common stock from a
former employee. The Company reissued those shares at
the same price at which they were acquired to certain
employees including Stephen R. Harmon who acquired
600 shares.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules
and Reports on Form 8-K
The following is an index of the financial
statements, schedules and exhibits included in this
Report or Incorporated herein by reference:
2. Financial Statement Schedules:
There are no Financial Statement Schedules
included with this filing for the reason that they
are not applicable, are not required, or the
information is included in the financial
statements or notes thereto.
3. Exhibits
The following is an index of the exhibits
included in this Annual Report on Form 10-K
or incorporated herein by reference:
Exhibit No.
*2.1 Agreement and Plan of Exchange and
of Merger, dated as of November 16,
1995 by and among JJ Acquisitions
Corp. and Jitney-Jungle Stores of
America, Inc., Southern Jitney Jungle
Company, McCarty-Holman Co., Inc.
and Jitney-Jungle Bakery, Inc.
(incorporated by reference to Exhibit
No. 2.1 to Amendment No. 2 to Form
S-1 [No. 33-80833] of JJ Acquisitions
Corp. filed with the Commission on
February 27, 1996).
<PAGE>
*2.2 Agreement and Plan of Merger dated
July 8, 1997 by and among the
Company, Delchamps, Inc. and Delta
Acquisition Corporation (incorporated
by reference to Exhibit 2 to Form 8-K
[No. 33-80833] of the Company dated
July 14, 1997).
*3.1 Amended and Restated Articles of
Incorporation of Jitney-Jungle Stores of
America, Inc. (including designation of
Class B Preferred Stock) (incorporated
by reference to Exhibit No. 3.3 to
Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisitions Corp.
filed with the Commission on February
27, 1996).
*3.2 Restated by-laws of Jitney-Jungle
Stores of America, Inc. (incorporated
by reference to Exhibit No. 3.6 to
Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisitions Corp.
filed with the Commission on February
27, 1996).
*3.3 Composite Amended and Restated
Articles of Incorporation of Delchamps,
Inc. (incorporated by reference to Exhibit
3.1 to Form 10-Q of Delchamps, Inc. for
the quarter ended September 28, 1996).
*3.4 Composite of By-Laws of Delchamps, Inc.
(incorporated by reference to Exhibit 3.2
to Form 10-Q of Delchamps, Inc. for the
quarter ended September 28, 1996.
*3.5 Amended and Restated Articles of
Incorporation of Interstate Jitney-Jungle
Stores Inc. (incorporated by reference to
Exhibit 3.5 to Amendment No. 1 to Form
S-4 [No. 333-38957] of Jitney-Jungle
Stores of America, Inc. filed with the
Commission on November 7, 1997).
*3.6 Restated By-Laws of Interstate Jitney-
Jungle Stores, Inc. (incorporated by
reference to Exhibit 3.6 to Amendment
No. 1 to Form S-4 [No. 333-38957] of
Jitney-Jungle Stores of America, Inc. filed
with the Commission on November 7,
1997).
*3.7 Amended and Restated Articles of
Incorporation of McCarty-Holman Co.,
Inc. (incorporated by reference to Exhibit
3.7 to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*3.8 Restated By-Laws of McCarty-Holman
Co., Inc. (incorporated by reference to
Exhibit 3.8 to Amendment No. 1 to Form
S-4 [No. 333-38957] of Jitney-Jungle
Stores of America, Inc. filed with the
Commission on November 7, 1997).
*3.9 Amended and Restated Articles of
Incorporation of Southern Jitney Jungle
Company (incorporated by reference to
Exhibit 3.9 to Amendment No. 1 to Form
S-4 [No. 333-38957] of Jitney-Jungle
Stores of America, Inc. filed with the
Commission on November 7, 1997).
<PAGE>
*3.10 Restated By-Laws of Southern Jitney
Jungle Company (incorporated by
reference to Exhibit 3.10 to Amendment
No. 1 to Form S-4 [No. 333-38957] of
Jitney-Jungle Stores of America, Inc. filed
with the Commission on November 7,
1997).
*3.11 Amended and Restated Articles of
Incorporation of Pump and Save, Inc.
(incorporated by reference to Exhibit 3.11
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*3.12 Restated By-Laws of Pump and Save, Inc.
(incorporated by reference to Exhibit 3.12
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*3.13 Amended and Restated Articles of
Incorporation of Supermarket Cigarettes
Sales, Inc. (incorporated by reference to
Exhibit 3.13 to Amendment No. 1 to Form
S-4 [No. 333-38957] of Jitney-Jungle
Stores of America, Inc. filed with the
Commission on November 7, 1997).
*3.14 By-Laws of Supermarket Cigarettes Sales,
Inc. (incorporated by reference to Exhibit
3.14 to Amendment No. 1 to Form S-4
[No. 333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*3.15 Amended and Restated Articles of
Incorporation of Jitney-Jungle Bakery, Inc.
(incorporated by reference to Exhibit 3.15
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*3.16 Restated By-Laws of Jitney-Jungle
Bakery, Inc. (incorporated by reference to
Exhibit 3.16 to Amendment No. 1 to Form
S-4 [No. 333-38957] of Jitney-Jungle
Stores of America, Inc. filed with the
Commission on November 7, 1997).
*4.1 Indenture dated as of September 15, 1997
among the Company, the Subsidiary
Guarantors from Marine Midland Bank as
Trustee, Donaldson Lufkin & Jenrette
Securities Corporation and Credit Suisse
First Boston (incorporated by reference to
Exhibit 4.1 to Form S-4 [No. 333-38957]
of Jitney-Jungle Stores of America, Inc.
filed with the Commission on October 29,
1997).
*4.2 Registration Rights Agreement dated as of
September 15, 1997 among the Company,
the Subsidiary Grantors, Donaldson,
Lufkin & Jenrette Securities Corporation
and Credit Suisse First Boston
(incorporated by reference to Exhibit 4.2
to Form S-4 [No. 333-38957] of Jitney-
Jungle Stores of America, Inc. filed with
the Commission on October 29, 1997).
<PAGE>
*4.3 Form of the Company's 10 3/8% Senior
Subordinated Notes due 2007 (included in
Exhibit 4.1) (incorporated by reference to
Exhibit 4.3 to Form S-4 [No. 333-38957]
of Jitney-Jungle Stores of America, Inc.
filed with the Commission on October 29,
1997).
*4.4 Revolving Credit Agreement dated
September 15, 1997 by and among Fleet
Capital Corporation and the Company
(incorporated by reference to Exhibit 4.4
to Form S-4 [No. 333-38957] of Jitney-
Jungle Stores of America, Inc. filed with
the Commission on October 29, 1997).
*4.5 Indenture dated March 5, 1996 between
the Company and Marine Midland Bank,
as Trustee, relating to the issuance and sale
of $200,000,000 aggregate principal
amount of 12% Senior Notes due 2006
(incorporated by reference to Exhibit No.
4.2 Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisition Corp. filed
with the Commission on February 27,
1996).
*4.6 Warrant dated March 4, 1996 to
purchase 75,000 shares of Common
Stock of the Company by DLJ
Merchant Banking Partners, L.P. and
related investors (incorporated by
reference to Exhibit 4.3 to Amendment
No. 2 to Form S-1 [No. 33-80833] of JJ
Acquisitions Corp. filed with the
Commission on February 27, 1996).
*4.7 Memorandum of Agreement dated
October 15, 1985 by and among the
City of Jackson, Mississippi and
McCarty-Holman Co., Inc.
($3,650,000) (incorporated by reference
to Exhibit 4.8 to Amendment No. 2 to
Form S-1 [No. 33-80833] of JJ
Acquisitions Corp. filed with the
Commission on February 27, 1996).
*4.8 Amendment and Waiver Agreement
No.1 dated April 10, 1998 to Amended
and Restated Revolving Credit
Agreement dated September 15, 1997
by and among Fleet Capital
Corporation and the Company.
*4.9 Amendment and Waiver Agreement No.
2 dated June 19, 1998 to Amended and
Restated Revolving Credit Agreement
dated September 15, 1997 by and
among Fleet Capital Corporation and
the Company.
*4.10 Amendment and Waiver Agreement No.
3 dated October 5, 1998 to the
Amended and Restated Revolving
Credit Agreement dated September 15,
1997 by and among Fleet Capital
Corporation and the Company.
4.11 Amended and Restated Revolving
Credit Agreement No.4 dated March 4,
1999 to the Amended and Restated
Revolving Credit Agreement dated
September 15, 1997 by and among
Fleet Capital Corporation and the
Company.
<PAGE>
*5.1 Opinion of Dechert Price & Rhoads
(incorporated by reference to Exhibit 5.1
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*9.1 Voting Trust Agreement dated
November 1, 1990 by and among
Carolyn Holman Kroeze, as Executrix
and the parties named therein
(incorporated by reference to Exhibit
9.1 to Amendment No. 2 to Form S-1
[No. 33-80833] of JJ Acquisitions
Corp. filed with the Commission on
February 27, 1996).
*10.1 Purchase Agreement dated September 10,
1997 among the Company, Donaldson,
Lufkin & Jenrette Securities Corporation
and Credit Suisse First Boston with
respect to the 10 3/8% Senior
Subordinated Notes due 2007
(incorporated by reference to Exhibit 10.1
to Form S-4 [No. 333-38957] of Jitney-
Jungle Stores of America, Inc. filed with
the Commission on October 29, 1997).
*10.2 Supply Agreement dated March 19,
1989 as amended, by and among
Fleming Companies Inc. (successor in
interest to Malone & Hyde, Inc.), the
Company and Interstate Jitney-Jungle
Stores, Inc. (incorporated by reference
to Exhibit 10.2 to Amendment No. 2 to
Form S-1 [No. 33-80833] of JJ
Acquisitions Corp. filed with the
Commission on February 27, 1996).
*10.3 Membership in Topco Associates, Inc.
(Cooperative) by ownership of six
hundred (600) shares of Common
Stock, such stock certificate being
dated July 1, 1991 (incorporated by
reference to Exhibit 10.3 to
Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisitions Corp.
filed with the Commission on February
27, 1996).
*10.4 Flour Sale Confirmation and Contract
dated July 19, 1995 by and among
Cargill, Incorporated and Jitney-
Jungle Bakery, Inc. (incorporated by
reference to Exhibit 10.4 to
Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisitions Corp.
filed with the Commission on
February 27, 1996).
*10.5 Employment Agreement dated as of
February 15, 1995 by and among the
Company Roger P. Friou
(incorporated by reference to Exhibit
10.6 to Amendment No. 2 to Form S-
1 [No. 33-80833] of JJ Acquisitions
Corp. filed with the Commission on
February 27, 1996).
*10.6 Employment Agreement dated as of
February 24, 1995 by and among the
Company and David K. Essary
(incorporated by reference to Exhibit
10.7 to Amendment No. 2 to Form S-
1 [No. 33-80833] of JJ Acquisitions
Corp. filed with the Commission on
February 27, 1996).
*10.7 Employment Agreement dated as of
March 5, 1996 by and among the
Company and W. H. Holman, Jr.
(incorporated by reference to Exhibit
<PAGE>
10.6 to the Company's Annual Report
on Form 10-K, dated July 24, 1996).
*10.8 Employment Agreement dated as of
March 5, 1996 by and among the
Company and W. H. Holman, III.
(incorporated by reference to Exhibit
10.7 to the Company's Annual Report
on Form 10-K, dated July 24, 1996).
*10.9 Restatement and Amendment by the
Entirety of the Jitney-Jungle Stores of
America, Inc. and Affiliates Profit
Sharing Plan and Trust (incorporated
by reference to Exhibit 10.8 to
Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisitions Corp.
filed with the Commission on
February 27, 1996).
*10.10 Deferred Compensation Plan for the
Company dated as of November 16,
1995 by and among Jitney-Jungle
Stores of America, Inc., Southern
Jitney Jungle Company, Jitney-Jungle
Bakery, Inc., McCarty-Holman Co.,
Inc. and W. H. Holman, Jr., Roger P.
Friou and David K. Essary
(incorporated by reference to Exhibit
10.9 to Amendment No. 2 to Form S-
1 [No. 33-80833] of JJ Acquisitions
Corp. filed with the Commission on
February 27, 1996).
*10.11 Shareholders Agreement dated as of
March 5, 1996 by and among DLJ
Merchant Banking Partners, L.P. JJ
Acquisitions Corp., and certain other
signatories party thereto (incorporated
by reference to Exhibit 10.10 to
Amendment No. 2 to Form S-1 [No.
33-80833] of JJ Acquisitions Corp.
filed with the Commission on
February 27, 1996).
*10.12 Securities Purchase and Holders
Agreement dated as of March 5, 1996
by and among JJ Acquisitions Corp.,
Bruckmann, Rosser, Sherrill & Co.,
L.P. and other parties thereto
(incorporated by reference to Exhibit
10.12 to Amendment No. 2 to Form
S-1 [No. 33-80833] of JJ
Acquisitions Corp. filed with the
Commission on February 27, 1996).
*10.13 Registration Rights Agreement dated
as of March 5, 1996 by and among
the Company and other parties named
therein (incorporated by reference to
Exhibit 10.13 to Amendment No. 2 to
Form S-1 [No. 33-80833] of JJ
Acquisitions Corp. filed with the
Commission on February 27, 1996).
*10.14 Membership and Licensing
Agreement dated August 1, 1973
between Topco Associates, Inc. and
Delchamps, Inc. and attached copy of
Articles of Incorporation and By-
Laws of Topco Associates, Inc.
(incorporated by reference to Exhibit
10(a) to the Registration Statement on
Form S-1 [No. 2-86926] of
Delchamps, Inc.)
*10.15 Agreement for Termination of
Employment dated as of September
19, 1997 between Delchamps, Inc. and
David W. Morrow (incorporated by
reference to Exhibit 10(j) to Form 10-
K of Delchamps, Inc. for fiscal year
<PAGE>
ended June 28, 1997).
*10.16 Form of Director Indemnity Agreement
of Delchamps, Inc. (incorporated by
reference to Exhibit 10 to Form 10-Q of
Delchamps, Inc. for the quarter ended
September 28, 1996).
10.17 Employment Agreements dated effective
February 23, 1997, December 8, 1997
and January 1, 1998 by and among the
Company and Michael E. Julian,
Ronald E. Johnson and R. Barry
Cannada, respectively.
10.18 Change of Control Agreements dated
effective February 18, 1999 by and
among the Company and Michael E.
Julian, Ronald E. Johnson and R. Barry
Cannada, respectively.
*12.1 Statement of Ratio of Earnings to Fixed
Charges (incorporated by reference to
Exhibit 12.1 to Form S-4 [No. 333-
38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on October 29, 1997).
21.1 Subsidiaries of the Company.
*23.1 Consent of Dechert Price & Rhoads
(included in Exhibit 5.1) (incorporated by
reference to Exhibit 23.1 to Form S-4
[No. 333-38957] of Jitney-Jungle Stores
of America, Inc. filed with the
Commission on October 29, 1997).
*23.2 Consent of Deloitte & Touche LLP
(incorporated by reference to Exhibit 23.2
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*23.3 Consent of KPMG Peat Marwick
(incorporated by reference to Exhibit 23.3
to Form S-4 [No. 333-38957] of Jitney-
Jungle Stores of America, Inc. filed with
the Commission on October 29, 1997).
*24 Power of Attorney (incorporated by
reference to Exhibit 24 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on October 29, 1997).
*25 Statement of Eligibility and
Qualifications, Form T-1, of Marine
Midland Bank (incorporated by reference
to Exhibit 25 to Form S-4 [No. 333-
38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on October 29, 1997).
*99.1 Form of Letter of Transmittal
(incorporated by reference to Exhibit 23.2
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
<PAGE>
*99.2 Form of Notice of Guaranteed Delivery
(incorporated by reference to Exhibit 23.2
to Amendment No. 1 to Form S-4 [No.
333-38957] of Jitney-Jungle Stores of
America, Inc. filed with the Commission
on November 7, 1997).
*Previously filed as indicated.
(b) Reports on Form 8-K.
On November 19, 1997, the Company filed a Current
Report on Form 8-K stating under "Item 5. Other Items"
that on November 4, 1997 Delta Acquisition Corporation
("Delta"), an Alabama corporation and wholly owned
subsidiary of Jitney-Jungle Stores of America, Inc. (Jitney-
Jungle) merged with and into Delchamps, Inc., an Alabama
corporation ("Delchamps"). Delchamps is now a wholly
owned subsidiary of Jitney-Jungle. As of November 4,
1997, Delchamps' shareholders representing approximately
620,749 shares, or 8.8% of the outstanding shares of
Delchamps, purportedly indicated their intention to exercise
dissenters' rights with respect to the merger.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Jitney-Jungle Stores of America, Inc.
(Registrant)
By /s/ Michael E. Julian
(Michael E. Julian
Chairman of the Board and
Chief Executive Officer)
(Principal Executive Officer)
Date April 2, 1999
By /s/ Richard D. Coleman
(Richard D. Coleman
Executive Vice President,
Chief Financial Officer)
(Principal Financial and
Accounting Officer)
Date April 2, 1999
<PAGE>
Pursuant to the requirements of the Securities
Exchange Act of 1934, this report has been signed below
by the following persons on behalf of the Company and in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Position Date
<S> <C> <C>
/s/ Michael E. Julian Chairman of the Board and April 2, 1999
(Michael E. Julian) Chief Executive Officer
/s/ Roger P. Friou Director April 2, 1999
(Roger P. Friou)
Director April 2, 1999
(Bruce C. Bruckmann)
Director April 2, 1999
(Harold O. Rosser, II)
/s/ Stephen C. Sherrill Director April 2, 1999
(Stephen C. Sherrill)
/s/ John M. Moriarty, Jr. Director April 2, 1999
(John M. Moriarty, Jr.)
/s/ Joseph H. Fernandez Director April 2, 1999
(Joseph H. Fernandez)
/s/ Ronald E. Johnson Director April 2, 1999
(Ronald E. Johnson)
/s/ Donald D. Bennett Director April 2, 1999
(Donald D. Bennett)
</TABLE>
<PAGE>
Exhibit 21.1
SUBSIDIARIES OF JITNEY-JUNGLE STORES OF AMERICA, INC.
<TABLE>
<CAPTION>
Percentage
of Voting
Securities
Jurisdiction of Owned by
Name Incorporation Registrant
______________________________________ _______________ __________
<S> <C> <C>
Interstate Jitney-Jungle Stores, Inc. Alabama 100%
Southern Jitney Jungle Company Mississippi 100%
McCarty-Holman Co., Inc. Mississippi 100%
Jitney-Jungle Bakery, Inc. Mississippi 100%
Delchamps, Inc. Alabama 100%
J. J. Construction Corp. Mississippi 100%
</TABLE>
Exhibit 21.1
SUBSIDIARIES OF JITNEY-JUNGLE STORES OF AMERICA, INC.
SUBSIDIARIES OF MCCARTY-HOLMAN CO., INC.
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
__________________________ _______________
<S> <C>
Pump and Save, Inc. Mississippi
</TABLE>
Exhibit 21.1
SUBSIDIARIES OF JITNEY-JUNGLE STORES OF AMERICA, INC.
SUBSIDIARIES OF DELCHAMPS, INC.
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
__________________________ _______________
<S> <C>
Supermarket Cigarette Sales, Inc. Louisiana
</TABLE>
EXHIBIT 4.11
Execution Copy
AMENDMENT NO. 4
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 4 dated March 4,
1999 to the Amended and Restated Revolving Credit
Agreement dated as of September 15, 1997 (as heretofore
amended, and as may be further amended, restated,
modified or supplemented from time to time, the "Credit
Agreement") among Jitney-Jungle Stores of America, Inc.,
Southern Jitney Jungle Company, McCarty-Holman Co.,
Inc., Jitney-Jungle Bakery, Inc., Pump and Save, Inc.,
Interstate Jitney Jungle Stores, Inc.("Interstate Jitney-
Jungle"), and Delchamps, Inc. ("Delchamps") (each a
"Borrower" and collectively, the "Borrowers"), the
Guarantors named therein, the Lenders named therein and
Fleet Capital Corporation, as Agent.
WHEREAS, the Borrowers have requested
an increase in the Total Commitment under the Credit
Agreement to $162,300,000 and a five percent (5%)
seasonal increase of the inventory advance rate.
WHEREAS, Interstate Jitney-Jungle desires
to sell (the "Fayette Sale") that certain real estate located in
Fayette, Alabama (the "Fayette Parcel") as more fully
described in that certain Option to Purchase Real Estate,
dated November 16, 1998, attached hereto as Exhibit A
(the "Fayette Option Agreement") between Interstate
Jitney-Jungle and Atlantic Financial Group, Ltd.
WHEREAS, Delchamps desires to sell (the
"R-1 Mandeville Sale") that certain real estate located in
Mandeville, Louisiana (the "R-1 Mandeville Parcel") as
more fully described in that certain Agreement to Purchase
or Sell, dated November 16, 1998, attached hereto as
Exhibit B (the "R-1 Mandeville Purchase Agreement")
between Delchamps and Stirling Properties, Inc.
WHEREAS, Delchamps desires to sell (the
"S-1 Mandeville Sale") that certain real estate located in
Mandeville, Louisiana (the "S-1 Mandeville Parcel") as
more fully described in that certain Agreement to Purchase
or Sell, dated November 16, 1998, attached hereto as
Exhibit C (the "S-1 Mandeville Purchase Agreement")
between Delchamps and Stirling Properties, Inc.
WHEREAS, Delchamps desires to sell (the
"Mobile Sale", and collectively with the Fayette Sale, the
R-1 Mandeville Sale and the S-1 Mandeville Sale, the
"Real Estate Sales") that certain real estate located in
Mobile, Alabama (the "Mobile Parcel", and collectively
with the Fayette Parcel, the R-1 Mandeville Parcel and the
S-1 Mandeville Parcel, the "Real Estate Parcels") as more
fully described in that certain Purchase Agreement dated
July 14, 1998, attached hereto as Exhibit D (the "Mobile
Purchase Agreement", and collectively with the Fayette
Option Agreement, the R-1 Mandeville Purchase
Agreement and the S-1 Mandeville Purchase Agreement,
the "Real Estate Purchase Agreements") by and between
Delchamps and The State of Alabama, by and through its
agency the Alabama State Docks Department.
<PAGE>
WHEREAS, the Borrowers have requested
that the Lenders consent to the Real Estate Sales and waive
certain provisions of the Credit Agreement as they relate
the to the Real Estate Sales.
WHEREAS, the Borrowers have requested
that the Agent and the Lenders amend certain terms and
provisions of the Credit Agreement.
WHEREAS the Lenders are willing to
amend and waive certain provisions of the Credit
Agreement, as more fully described herein, on the terms
and conditions hereof.
NOW, THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent hereby agree as
follows:
1 SECTION CAPITALIZED TERMS. Capitalized
terms used herein and not defined shall have the respective
meanings assigned to such terms in the Credit Agreement.
1 SECTION AMENDMENTS TO THE CREDIT
AGREEMENT. The Credit Agreement shall be, and upon
the fulfillment of the conditions set forth in Section 5
hereof is, amended as follows:
1.1 SECTION The preamble of the Credit
Agreement is hereby amended by deleting the amount
"$150,000,000" and substituting the amount
"$162,300,000" therefor.
1.2
1.3 SECTION Schedule 2.01(a) is hereby
deleted in its entirety and Schedule 2.01 is hereby amended
in its entirety by substituting Schedule 2.01 attached hereto
therefore.
1.4
1.5 SECTION The following definitions are
hereby added in their proper alphabetical order in Article I
of the Credit Agreement:
1.6
"A.I. Credit Corp. Indebtedness" shall mean,
Indebtedness to A.I. Credit Corp. incurred in
connection with (a) a Premium Finance Agreement,
Disclosure Statement and Security Agreement dated
June 3, 1997, as amended, in a maximum principal
amount of $12,996,000, (b) a Premium Finance
Agreement, Disclosure Statement and Security
Agreement dated December 12, 1997, as amended,
in a maximum principal amount of $11,226,268, (c)
a Premium Finance Agreement, Disclosure
Statement and Security Agreement dated April 30,
1998, as amended, in a maximum principal amount
of $16,500,000, and (d) a Premium Finance
Agreement, Disclosure Statement and Security
Agreement dated October 9, 1998, as amended, in a
maximum principal amount of $9,752,521.
"Restructuring Obligations" shall mean, the
aggregate rental and other monetary obligations of
the Borrowers and their respective subsidiaries for
closed stores and for certain other obligations
assumed by the Borrowers in connection with the
Acquisition.
1.1 SECTION The definition of Commitment
contained in Article I of the Credit Agreement is hereby
deleted in its entirety and the following is hereby
substituted therefor:
<PAGE>
1.2
"Commitment" shall mean, with respect to
each Lender, the Commitment of such Lender as set
forth in Schedule 2.01 annexed hereto, as it may be
adjusted from time to time pursuant to Sections 2.07
and 11.03.
1.1 SECTION The definition of Fixed Charge
Coverage Ratio contained in Article I of the Credit
Agreement is hereby deleted in its entirety and the
following is hereby substituted therefor:
1.2
"Fixed Charge Coverage Ratio" shall mean,
for any fiscal period, the ratio of (i) EBITDA of the
Borrowers and their respective subsidiaries for the
four most recent consecutive fiscal quarters ending
on or prior to the date of determination to (ii) the
sum of, without duplication, (A) Interest Expense,
(B) Capital Expenditures (excluding Capital
Expenditures in respect of Reinvestment Assets to
the extent funded with the Net Cash Proceeds of
Asset Sales), (C) cash dividends paid by, or other
distributions, redemptions, repurchases or
retirements of capital stock of, the Borrowers and
their respective subsidiaries, (D) taxes actually paid
by the Borrowers and their respective subsidiaries
in cash (less any tax refunds actually received by
the Borrowers and their respective subsidiaries in
cash) and (E) the aggregate of principal payments
(whether regularly scheduled payments, voluntary
or mandatory prepayments (including, without
limitation, by reason of any reduction of the Total
Commitment and/or the Supplemental Availability)
or occurring by reason of acceleration or otherwise)
of all Indebtedness (including, without limitation,
Capitalized Lease Obligations, Restructuring
Obligations, Indebtedness issued under the Senior
Indenture and under the Senior Subordinated
Indenture) made or scheduled to have been made by
the Borrowers and their respective subsidiaries
(other than principal payments on Loans except to
the extent paid to permanently reduce the Total
Commitment and/or the Supplemental Availability),
for such four-quarter period, in each case
determined on a Consolidated basis in accordance
with generally accepted accounting principles.
1.1 SECTION The definition of Interest
Coverage Ratio contained in Article I of the Credit
Agreement is hereby deleted in its entirety and the
following is hereby substituted therefor:
1.2
1.3 "Interest Coverage Ratio" shall mean, for any fiscal
period, the ratio of (i) EBITDA of the Borrowers and their
respective subsidiaries for the four most recent consecutive
fiscal quarters ending on or prior to the date of
determination, to (ii) the Interest Expense of the Borrowers
and their respective subsidiaries (including, without
limitation interest on Restructuring Obligations), for such
four-quarter period.
1.4
1.5 SECTION The definition of Leverage
Ratio contained in Article I of the Credit Agreement is
hereby deleted in its entirety and the following is hereby
substituted therefor:
1.6
"Leverage Ratio" shall mean, at the end of
any fiscal quarter, the ratio of (i) the sum of (x) all
Indebtedness of the Borrowers and their respective
subsidiaries (including, without limitation, the
amount of Obligations outstanding under this
<PAGE>
Agreement (whether for principal, interest or
premium), the Indebtedness under the Senior Notes
and Indebtedness under the Senior Subordinated
Notes, but excluding Intercompany Indebtedness,
Indebtedness to trade creditors incurred in the
ordinary course of business and A.I. Credit Corp.
Indebtedness) and (y) $0 from the Initial Closing
Date through 1/2/1999, thereafter, Restructuring
Obligations, as at the date of determination to
(ii) EBITDA of the Borrowers and their respective
subsidiaries for the four-quarter period ending at the
date of determination, in each case determined on a
Consolidated basis in accordance with generally
accepted accounting principles.
1.1 SECTION The definition of Supplemental
Availability is hereby amended by deleting the phrase "plus
the aggregate amount of the Commitments set forth on
Schedule 2.01(a), if any" at the end of such definition.
1.2
1.3 SECTION Section 2.07(b)(i) of the Credit
Agreement is hereby amended by deleting the phrase ", and
on each such date, the Total Commitment shall be
permanently reduced by an amount equal to such
reduction"
1.4
1.5 SECTION Section 2.01(a) of the Credit
Agreement is hereby amended by adding the phrase "up to
seventy percent (70%) for the time periods March 1, 1999
through April 30, 1999 and September 1, 1999 through
October 31, 1999 and" immediately after the phrase "an
amount equal to the sum of (i)" as it appears in clause
(1)(B) of such Section 2.01(a).
1.6
1.7 SECTION Section 2.01(a) of the Credit
Agreement is hereby further amended by adding the phrase
"at all other times," immediately after the phrase "sixty-five
percent (65%)" as it appears in clause (1)(B) of such
Section 2.01(a).
1.8
1.9 SECTION Section 7.03 (xii) of the Credit
Agreement is hereby amended by deleting the phrase
"Indebtedness to A.I. Credit Corp. incurred in connection
with a Premium Finance Agreement, Disclosure Statement
and Security Agreement dated as of May 29, 1997, as
amended, in a maximum amount of $28,000,000" and
substituting the phrase "A.I. Credit Corp. Indebtedness"
therefor.
1.10
1.11 SECTION Section 7.07 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
1.12
SECTION 7.07. Capital
Expenditures and Other Obligations. Permit the
aggregate amount of payments made, without
duplication, for Capital Expenditures, Capitalized
Lease Obligations and Indebtedness secured by
Liens permitted under Section 7.01(e) and/or
Section 7.01(k) hereof (excluding Capital
Expenditures in respect of Reinvestment Assets to
the extent funded with the Net Cash Proceeds of
Asset Sales), at the end of each fiscal period set
forth below to be greater than:
Date of Determination Amount
The Fiscal Year ending
January 2, 1999 $70,000,000
The Fiscal Quarter ending
March 27, 1999 $17,000,000
The two Fiscal Quarter
period
ending June 19,1999 $38,000,000
The three Fiscal Quarter
period ending September
11, 1999 $57,000,000
The Fiscal Year ending
January 1, 2000 $75,000,000
Each Fiscal Quarter
thereafter, 50% of EBITDA for
for the four most recent such period
consecutive fiscal quarters
of
the Borrowers and their
respective Consolidated
subsidiaries
Amount
1.1 SECTION Section 7.08 of the
Credit Agreement is hereby amended in its entirety to read
as follows:
1.2
SECTION 7.08. Fixed Charge Coverage
Ratio. (a) If as of the last day of any fiscal month
(each, a "Fixed Charge Test Date"), the average
daily Undrawn Availability for such fiscal month is
less than $15,000,000, permit the Fixed Charge
Coverage Ratio at the end of each fiscal quarter,
commencing with the first fiscal quarter starting
after the fiscal month in which such Fixed Charge
Test Date occurred, to be less than 1.00:1.00.
Within three (3) Business Days after each Fixed
Charge Test Date, the Borrowers shall provide the
Agent with a certificate from a Financial Officer
setting forth the calculation of the average daily
Undrawn Availability for the fiscal month then
ended.
(b) Beginning with the first fiscal quarter
commencing after any Fixed Charge Test Date
where the average daily Undrawn Availability for
the fiscal month ending on such Fixed Charge Test
Date is less than $15,000,000, if the average daily
Undrawn Availability for each of any two
consecutive fiscal quarter periods remains above
$15,000,000, the Fixed Charge Coverage Ratio may
thereafter be less than 1.00:1.00 until any Fixed
Charge Test Date where the average daily Undrawn
Availability for the fiscal month ending on such
Fixed Charge Test Date is less than $15,000,000 at
which time paragraph (a) of this Section 7.08 shall
apply.
<PAGE>
1.1 SECTION Section 7.09 of the
Credit Agreement is hereby amended in its entirety to read
as follows:
1.2
SECTION 7.09. Leverage Ratio.
Permit the Leverage Ratio at the end of each fiscal
quarter set forth below to be greater than:
Date of Determination Ratio
The Fiscal Quarters ending
January 3, 1998 and March 28, 1998 5.50:1.00
The Fiscal Quarter ending
June 20, 1998 6.00:1.00
The Fiscal Quarter ending
September 12, 1998 6.00:1.00
The Fiscal Quarters ending
January 2, 1999 and March 27, 1999 5.30:1.00
The Fiscal Quarters ending
June 19, 1999, September 11, 1999
and January 1, 2000 5.25:1.00
Each Fiscal Quarter ending
in Fiscal Year 2000 4.30:1.00
Each Fiscal Quarter ending
in Fiscal Year 2001 3.90:1.00
Each Fiscal Quarter ending
in Fiscal Year 2002 3.60:1.00
Each Fiscal Quarter ending
in Fiscal Year 2003 3.40:1.00
1.1 SECTION Section 7.10 of the Credit
Agreement is hereby amended by deleting the amount
"1.80" as it appears in the "Ratio" column opposite the
phrase "Each Fiscal Quarter ending in Fiscal Year 1999"
and substituting the amount "1.70" therefor.
<PAGE>
1 SECTION WAIVER AND CONSENT TO THE REAL ESTATE SALES
2
2.1 SECTION The Agent and the Lenders
hereby consent to the Real Estate Sales as described above
pursuant to the Real Estate Purchase Agreements and agree
to release any Lien on the Real Estate Parcels by the Agent
for the benefit of the Lenders.
1.1 SECTION The Agent and the Lenders
hereby waive the requirement of Section 2.09(d)(i) of the
Credit Agreement that the Borrowers make a mandatory
prepayment of the Loans in an amount equal to 100% of
the Net Cash Proceeds received by the Borrowers from the
Real Estate Sales.
1.2
1.3 SECTION The Agent and the Lender
hereby agree that the provision of Section 2.07(b)(ii) of the
Credit Agreement with respect to the mandatory permanent
reduction of the Total Commitment and Supplemental
Availability shall not apply to the Net Cash Proceeds
received by the Borrowers from the Real Estate Sales.
1.4
1.5 SECTION The Agent and the Lenders
acknowledge that the Borrowers have made a Reinvestment
Election pursuant to Section 2.09(d)(i) of the Credit
Agreement with regard the Net Cash Proceeds received by
the Borrowers from the Real Estate Sales.
1.6
1.7 SECTION The Agent and the Lenders
agree that any Net Cash Proceeds from the Real Estate
Sales reinvested in Reinvestment Assets shall not be
applied toward (x) the $1,000,000 per Fiscal Year limit or
(y) the $5,000,000 limit from the Initial Closing Date until
the Final Maturity Date on such reinvestment as provided
in Section 2.09(d)(i) of the Credit Agreement.
1 SECTION ADDITIONAL AGREEMENTS
2
2.1 SECTION The Borrowers hereby consent
to the assignment, pursuant to Section 11.03 of the Credit
Agreement, of any or all of the increase in the Total
Commitment contemplated hereunder by any existing
Lender to any Person.
1.1 SECTION The Borrowers hereby agree to
deliver to the Agent fully executed amendments to each
Mortgage reflecting the increase in the Total Commitment
within ten (10) Business Days of the date hereof and that
the failure to do so shall be an Event of Default.
1 SECTION CONDITIONS PRECEDENT
2
This Amendment shall become effective on
such date as the following conditions have been satisfied in
full or waived by the Agent in writing:
1.1 SECTION The Agent shall have received
in form and substance satisfactory to the Agent and its
counsel:
1.2
(a) A certificate signed by the
Secretary of each Borrower, Grantor and Guarantor,
<PAGE>
dated the date hereof, certifying that attached
thereto is a true and complete copy of resolutions
adopted by such person's Board of Directors
authorizing the execution, delivery and performance
of this Amendment, and that such resolutions have
not been modified, rescinded or amended and are in
full force and effect.
(b) A certificate signed by a
Financial Officer of each Borrower and Guarantor,
that (i) the representations and warranties made in
this Amendment are true and correct, both
immediately prior to and after giving effect to the
transactions contemplated herein, and (ii) there
exists no unwaived Default or Event of Default both
immediately prior to and after giving effect to the
transactions contemplated herein.
(c) Counterparts of this
Amendment executed by each Borrower, each
Guarantor, each Grantor and the Required Lenders
shall have been delivered to the Agent.
(d) Evidence that this
Amendment and the transactions contemplated
herein shall not violate or contravene any credit
agreement, indenture or other agreement to which
any Borrower, Guarantor or Grantor is a party.
(e) An opinion of Butler, Snow,
O'Mara, Stevens & Cannada, PLLC, addressed to
the Agent and the Lender, as to the authorization,
execution and delivery of this Amendment and the
Notes delivered herewith and the non-contravention
of this Amendment with credit agreement, indenture
or other agreement to which any Borrower,
Guarantor or Grantor is a party.
(f) Each Lender that has
increased its Commitment shall have received Notes
reflecting such increase in Commitment duly
executed by the Borrowers.
(g) The Agent shall have
received (i) for the pro rata benefit of the Lenders
(based on the Lenders' respective commitments
immediately prior to the Amendment) an
amendment fee of $184,375 and (ii) for the pro rata
benefit of the Lenders (based on the increase in the
Lenders' respective commitments contained herein)
an increased line fee of $43,750.
(h) The Agent shall have
received an executed copy of the fee letter between
the Borrowers and Fleet Capital Corporation.
(i) Fully executed copies of the
Real Estate Purchase Agreements.
(j) Such other approvals,
opinions or documents as the Agent may reasonably
request.
1.1 SECTION All representations and
warranties contained in this Amendment or otherwise made
in writing to the Agent in connection herewith shall be true
and correct in all material respects.
1.2
1.3 SECTION No unwaived Default or Event
of Default has occurred and is continuing.
<PAGE>
1.4
1.5 SECTION Kaye, Scholer, Fierman, Hays
& Handler, LLP, counsel to the Agent, shall have received
payment in full for all legal fees charged, and all costs and
expenses incurred, by such counsel in connection with the
transactions contemplated under this Amendment and the
other Loan Documents and instruments in connection
herewith and therewith.
1 SECTION MISCELLANEOUS
2
2.1 SECTION Each of the Borrowers and
each Guarantor reaffirms and restates the representations
and warranties set forth in Article IV of the Credit
Agreement, as amended by this Amendment, and all such
representations and warranties shall be true and correct on
the date hereof with the same force and effect as if made on
such date (except insofar as such representation and
warranties relate expressly to an earlier date). Each of the
Borrowers and each Guarantor represents and warrants
(which representations and warranties shall survive the
execution and delivery hereof) to the Agent that:
(a) It has the corporate power and
authority to execute, deliver and carry out the terms
and provisions of this Amendment and has taken or
caused to be taken all necessary corporate action to
authorize the execution, delivery and performance
of this Amendment;
(a) No consent of any other person
(including, without limitation, shareholders or
creditors of any Borrower or a Guarantor), and no
action of, or filing with any governmental or public
body or authority is required to authorize, or is
otherwise required in connection with the
execution, delivery and performance of this
Amendment;
(a) This Amendment and the other
instruments and documents contemplated hereby
have been duly executed and delivered by a duly
authorized officer on behalf of such party, and
constitutes a legal, valid and binding obligation of
such party enforceable against such party in
accordance with its terms, subject to bankruptcy,
reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors'
rights generally and the exercise of judicial
discretion in accordance with general principles of
equity; and
(a) The execution, delivery and
performance of this Amendment and the other
instruments and documents contemplated hereby
will not violate any law, statute or regulation, or any
order or decree of any court or governmental
instrumentality, or conflict with, or result in the
breach of, or constitute a default under any
contractual obligation of such party.
1.1 SECTION Nothing herein shall be
deemed to be a waiver of any covenant or agreement
contained in the Credit Agreement, and each Borrower and
each Guarantor hereby agrees that all of the covenants and
agreements contained in the Credit Agreement and the
other Loan Documents are hereby ratified and confirmed in
all respects and shall remain in full force and effect in
<PAGE>
accordance with their respective terms.
1.2
1.3 SECTION All references to the Credit
Agreement in the Credit Agreement or any other Loan
Document and the other documents and instruments
delivered pursuant to or in connection therewith shall mean
such Agreement as amended hereby and as each may in the
future be amended, restated, supplemented or modified
from time to time.
1.4
1.5 SECTION This Amendment may be
executed by the parties hereto individually or in
combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one
and the same agreement.
1.6
1.7 SECTION Delivery of an executed
counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
1.1 SECTION This Amendment shall be
governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
1.2
1.3 SECTION The parties hereto shall, at any
time and from time to time following the execution of this
Amendment, execute and deliver all such further
instruments and take all such further action as may be
reasonably necessary or appropriate in order to carry out
the provisions of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have
caused this Amendment to be executed by their respective
officers thereunto duly authorized, as to the date first above
written.
JITNEY-JUNGLE STORES OF AMERICA, INC.,
as Borrower and as Guarantor
By______________________
Name:
Title:
SOUTHERN JITNEY JUNGLE COMPANY,
as Borrower and as Guarantor
By_____________________
Name:
Title:
McCARTY-HOLMAN CO., INC.,
as Borrower and as Guarantor
By_____________________
Name:
Title:
JITNEY-JUNGLE BAKERY, INC.,
as Borrower and as Guarantor
By_____________________
Name:
Title:
PUMP AND SAVE, INC.,
as Borrower and as Guarantor
By_____________________
Name:
Title:
INTERSTATE JITNEY JUNGLE STORES, INC.,
as Borrower and as Guarantor
By_____________________
Name:
Title:
DELCHAMPS, INC.,
as Borrower and as Guarantor
By_____________________
Name:
Title:
JJ CONSTRUCTION CORP.,
as Guarantor
By_____________________
Name:
Title:
SUPERMARKET CIGARETTE SALES, INC.,
as Guarantor
By_____________________
Name:
Title:
FLEET CAPITAL CORPORATION,
as Agent
By______________________
Name:
Title:
FLEET CAPITAL CORPORATION, as Lender
By______________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Lender
By______________________
Name:
Title:
HELLER FINANCIAL INC., as Lender
By______________________
Name:
Title:
IBJ WHITEHALL BUSINESS CREDIT CORP., as Lender
By______________________
Name:
Title:
NATIONAL BANK OF CANADA, a Canadian
Chartered Bank, as Lender
By______________________
Name:
Title:
NATIONAL CITY BANK, as Lender
By______________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Lender
By______________________
Name:
Title:
FLEET BANK, N.A., as a Letter of Credit Issuer
By_______________________
Name:
Title:
SCHEDULE 2.01
Commitments
Lender Commitment
______ __________
Fleet Capital Corporation $63,966,666.67
60 East 42nd Street
New York, New York 10017
Attention: Mr. Thomas Maiale
Tel #: (212) 885-8826
Fax #: (212) 885-8829
Heller Financial, Inc. $34,416,666.67
101 Park Avenue
New York, New York 10178
Attention: Mr. Tom Bukowski
Tel #: (212) 880-7169
Fax #: (212) 880-7002
PNC Bank, National Association $15,733,333.33
2 PNC Plaza 18th Floor
620 Liberty Avenue
Pittsburgh, PA 15222
Attention: Mr. Richard Muse
Tel #: (412) 762-4471
Fax #: (412) 762-4069
IBJ Whitehall Business Credit Corp. $13,766,666.67
One State Street
New York, New York 10004
Attention: Mr. Jim Steffy
Tel #: (212) 858-2094
Fax #: (212) 858-2151
National Bank of Canada, $12,783,333.33
a Canadian Chartered Bank
125 West 55th Street
New York, New York 10019
Attention: Mr. Jim Norvell
Tel #: (212) 632-8560
Fax #: (212) 632-8564
Deutsche Financial Services $11,800,000.00
Corporation
3225 Cumberland Boulevard Suite 700
Atlanta, GA 30339
Attention: Mr. Stephan Metts
Fax #: (770) 933-8571
National City Bank $9,833,333.33
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Mr. Joseph D. Robison
Tel #: (216) 575-9254
Fax #: (216) 575-9396
Total Commitment $162,300,000
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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:
<PAGE>
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")
<PAGE>
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.
<PAGE>
(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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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")
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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")
EXHIBIT 10.18
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between Jitney-Jungle
Stores of America, Inc., a Mississippi corporation (the
"Company") and Michael E. Julian (the "Executive"),
dated as of the ____ day of ____________, 1999.
The Board of Directors of the Company (the
"Board"), has determined that it is in the best interest
of the Company and its shareholders to assure that
the Company will have the continued dedication of
the Executive, notwithstanding the possibility, threat
or occurrence of a Change of Control (as defined
below) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and
risks created by a pending or threatened Change of
Control and to encourage the Executive's full
attention and dedication to the Company currently
and in the event of any threatened or pending
Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a
Change of Control which ensure that the
compensation and benefits expectations of the
Executive will be satisfied and which are competitive
with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused
the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first
date during the Change of Control Period (as defined
in Section 1(b) on which a Change of Control (as
defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Executive's
employment with the Company is terminated prior to
the date on which the Change of Control occurs, and
if it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request
of a third party who has taken steps reasonably
calculated to effect the Change of Control or (ii)
otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" shall
mean the period commencing on the date hereof and
ending on the third anniversary of such date;
provided, however, that commencing on the date one
year after the date hereof, and on each annual
anniversary of such date (such date and each
anniversary thereof shall be hereinafter referred to as
the "Renewal Date"), the Change of Control Period
shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least
<PAGE>
60 days prior to the Renewal Date the Company shall
give notice to the Executive that the change of
Control Period shall not be so extended.
2. Change of Control. For the purposes of
this Agreement, a "Change of Control" shall mean:
(a) The acquisition by any individual, entity,
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the
Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting
Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the Company, unless
such acquisition causes an individual, entity or group
(other than Bruckmann, Rosser, Sherrill & Co., L.P.)
to beneficially own more than 50% of either the
Outstanding Company Common Stock or the
Outstanding Company Voting Securities, (ii) any
acquisition by the Company or any of its subsidiaries,
(iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Company or any of its subsidiaries, (iv) any
acquisition by any corporation with respect to which,
following such acquisition, more than 60% of,
respectively, the then outstanding shares of common
stock of such corporation and the combined voting
power of the then outstanding voting securities of
such corporation entitled to vote generally in the
election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Company Voting Securities
immediately prior to such acquisition in substantially
the same proportions as their ownership, immediately
prior to such acquisition, of the Outstanding Company
Common Stock and outstanding Company Voting
Securities, as the case may be, (v) any acquisition by
an underwriter or dealer in connection with a public
offering registered under the Securities Act of 1933,
as amended; or (vi) any acquisition of the Company's
common stock from underwriters or dealers in an
initial public offering registered under the Securities
Act of 1933, as amended; provided further, however,
that if and for so long as Bruckmann, Rosser, Sherrill
& Co., L.P. beneficially owns more of both
Outstanding Company Common Stock and
Outstanding Company Voting Securities than the
acquiring individual, entity or group, a Change of
Control shall not have occurred. Shareholders party
to shareholders agreements in effect on the date of
this Agreement shall not be considered a group for
purposes of this Agreement solely as a result of such
agreements or as a result of such shareholders voting
in accordance with the terms of such agreements. In
addition, it is specifically acknowledged that, as long
as Bruckmann, Rosser, Sherrill & Co., L.P.
<PAGE>
beneficially owns 20% or more of the Outstanding
Company Common Stock or Outstanding Company
Voting Securities, a Change of control shall not occur
solely as a result of the acquisition of additional
shares of Outstanding Company Common Stock or
Outstanding Company Voting Securities by (x)
Bruckmann, Rosser, Sherrill & Co., L.P. or (y) the
manager of Bruckmann, Rosser, Sherrill & Co., L.P.,
BRS Partners, Limited Partnership, BRSE
Associates, Inc., Bruce C. Bruckmann, Harold O.
Rosser II, Stephen C. Sherrill, Stephen F. Edwards or
Paul D. Kaminski, as long as such individual or entity
in this clause (y) does not after such acquisition
beneficially own 20% or more of such securities when
considered alone or as a part of any group of which
Bruckmann, Rosser, Sherrill & Co., L.P. is not a
member.
(b) A development whereby the individuals
who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to
the date hereof whose election, or nomination for
election by the Company's shareholders, was
approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall
be considered member of the Incumbent Board, but
excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either
an actual or threatened election contest (such as
terms are used in Rule 14a-11 of Regulation 14A
promulgate under the Exchange Act) or other actual
or threatened solicitation of proxies or consents; or
(c) Consummation by the Company of a
reorganization, merger or consolidation, in each case,
with respect to which all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such reorganization,
merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than 60% of,
respectively, then outstanding shares of common
stock and the combined voting power of the then
outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the
corporation resulting from such reorganization,
merger or consolidation in substantially the same
proportions as their ownership, immediately prior to
such reorganization, merger or consolidation of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case
may be; or
(d) (i) Approval by the shareholders of the
Company of a complete liquidation or dissolution of
the Company or (ii) consummation of the sale or
disposition of all or substantially all of the assets of
the Company, other than to a corporation, with
respect to which following such sale or other
disposition, more than 60% of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the
then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
<PAGE>
substantially all of the individuals and entities who
were the beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately
prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately
prior to such sale or other disposition, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case
may be.
3. Employment Period. The Company
hereby agrees to continue the Executive in its
employ, and the Executive hereby agrees to remain in
the employ of the Company, for the period
commencing on the Effective Date and ending on the
second anniversary of such date (the "Employment
Period").
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period,
(A) the Executive's position (including status,
officers, titles and reporting requirements),
authority, duties and responsibilities shall be at
least commensurate in all material respects
with the most significant of those held,
exercised and assigned at a time during the
90-day period immediately preceding the
Effective Date and (B) the Executive's services
shall be performed at the location where the
Executive was employed immediately
preceding the Effective Date or any office or
location less than 35 miles from such location.
(ii) During the Employment Period,
and excluding any periods of sick leave to
which the Executive is entitled, the Executive
agrees to devote reasonable attention and
time during normal business hours to the
business and affairs of the Company and, to
the extent necessary to discharge the
responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable
best efforts to perform faithfully and efficiently
such responsibilities. During the Employment
Period it shall not be a violation of this
Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational
institutions and (C) manage personal
investments, so long as such activities do not
significantly interfere with the performance of
the Executive's responsibilities as an employee
of the Company in accordance with this
Agreement. It is expressly understood and
agreed that to the extent that any such
activities have been conducted by the
Executive prior to the Effective Date, the
continued conduct of such activities (or the
conduct of activities similar in nature and
scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to
interfere with the performance of the
Executive's responsibilities to the Company.
<PAGE>
(b) Compensation.
(i) Base Salary. During the
Employment Period, the Executive shall
receive an annual base salary, payable in
equal monthly installments, at least equal to
twelve times the highest monthly base salary
paid or payable to the Executive by the
Company and its affiliated companies during
the twelve month period immediately preceding
the month in which the Effective Date occurs
("Annual Base Salary"). As used in this
Agreement, the term "affiliated companies"
shall include any company controlled by,
controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to
Annual Base Salary, the Executive shall be
awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the
"Annual Bonus") in cash at least equal to the
average annual bonus paid or payable to the
Executive by the Company and its affiliated
companies in respect of the three fiscal years
(annualized for any fiscal year consisting of
less than twelve full months or with respect to
which the Executive has been employed by the
Company for less than twelve full months)
immediately preceding the fiscal year in which
the Effective Date occurs (the "Recent Average
Bonus"). Such annual Bonus shall be paid no
later than the third month of the fiscal year next
following the fiscal year for which the annual
Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual
Bonus.
(iii) Incentive, Savings and
Retirement Plans. During the Employment
Period, the Executive shall be entitled to
participate in all incentive, savings and
retirement plans, practices, policies and
programs applicable generally to other peer
executives of the Company and its affiliated
companies, but in no event shall such plans,
practices, policies and programs provide the
Executive with incentive opportunities
(measured with respect to both regular and
special incentive opportunities, to the extent, if
any, that such distinction is applicable),
savings opportunities and retirement benefit
opportunities, in each case, less favorable, in
the aggregate, than the most favorable of
those provided by the Company and its
affiliated companies for the Executive under
such plans, practices, policies and programs
as in effect at any time during the 90-day
period immediately preceding the Effective
Date, or, if more favorable to the Executive,
those provided generally to other peer
executives of the company and its affiliated
companies at any time after the Effective Date.
(iv) Welfare Benefit Plans. During
the Employment Period and for a period of one
year thereafter, provided the Executive
remains employed by the Company, the
Executive and/or the Executive's family, as the
case may be shall be eligible for participation
in and shall receive all benefits under welfare
<PAGE>
benefit plans, practices, policies and programs
provided by the Company and its affiliated
companies (including, without limitation,
medical, prescription, dental, disability, salary,
continuance, employee life, group life,
accidental death and travel accident insurance
plans and programs) to the extent applicable
generally to other peer executives of the
Company and its affiliated companies, but in
no event shall such plans, practices, policies
and programs provide the Executive with
benefits which are less favorable, in the
aggregate, than the most favorable of such
plans, practices, policies and programs in
effect for the Executive at any time during the
90-day period immediately preceding the
Effective Date or if more favorable to the
Executive, those provided generally to other
peer executives of the Company and its
affiliated companies at any time after the
Effective Date.
(v) Expenses. During the
Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all
reasonable expenses incurred by the
Executive in accordance with the most
favorable policies, practices and procedures of
the Company and its affiliated companies in
effect for the Executive at any time during the
90-day period immediately preceding the
Effective Date or, if more favorable to the
Executive, as in effect generally with respect to
other peer executives of the Company and its
affiliated companies at any time thereafter.
(vi) Fringe Benefits. During the
Employment Period, the Executive shall be
entitled to fringe benefits in accordance with
the most favorable plans, practices, programs
and policies of the Company and its affiliated
companies in effect for the Executive at any
time during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive, as in effect
generally with respect to other peer executives
of the Company and its affiliated companies at
any time thereafter.
(vii) Office and Support Staff. During
the Employment Period, the Executive shall be
entitled to an office or offices of a size and with
furnishings and other appointments, and to
secretarial and other assistance, at least equal
to the most favorable of the foregoing provided
to the Executive by the Company and its
affiliated companies at any time during the 90-
day period immediately preceding the Effective
Date or, if more favorable to the Executive, as
provided generally with respect to other peer
executives of the Company and its affiliated
companies at any time thereafter.
(viii) Vacation. During the Employment
Period, the Executive shall be entitled to paid
vacation in accordance with the most favorable
plans, policies and practices of the Company
and its affiliated companies in effect for the
Executive at any time during the 90-day period
immediately preceding the Effective Date or, if
<PAGE>
more favorable to the Executive, as in effect
generally with respect to other peer executives
of the Company and its affiliated companies at
any time thereafter.
5. Termination of Employment.
(a) Death or Disability. The Executive's
employment shall terminate automatically upon the
Executive's death during the Employment Period. If
the Company determines in good faith that the
Disability of the Executive has occurred during the
Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive
written notice in accordance with Section 12(b) of this
Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's
employment with the Company shall terminate
effective on the 15th day after receipt of such notice by
the Executive (the "Disability Effective Date"),
provided that, within the 15 days after such receipt,
the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes
of this Agreement, "Disability" shall mean the absence
of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental
or physical illness which is determined to be total and
permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the
Executive's legal representative (such agreement as
to acceptability not to be withheld unreasonably).
(b) Cause The Company may terminate
the Executive's employment during the Employment
Period for Cause. For purposes of this Agreement,
"Cause" shall mean (i) repeated violations by the
Executive of the Executive's obligations under
Section 4(a) of this Agreement (other than as a result
of incapacity due to physical or mental illness) which
are demonstrably willful and deliberate on the
Executive's part, which are committed in bad faith or
without reasonable belief that such violations are in
the best interest of the Company and which are not
remedied in a reasonable period of time after receipt
of written notice from the Company specifying such
violations or (ii) the conviction of the Executive of a
felony involving moral turpitude.
(c) Good Reason. The Executive's
employment may be terminated during the
Employment Period by the Executive for Good
Reason. For purposes of this Agreement, "Good
Reason" shall mean:
(i) the assignment to the Executive
of any duties inconsistent in any respect with
the Executive's position (including status,
offices, titles and reporting requirements),
authority, duties or responsibilities as
contemplated by Section 4(a) of this
Agreement, or any other action by the
Company which results in a diminution in such
position, authority, duties and responsibilities,
excluding for this purpose an isolated,
insubstantial and inadvertent action not taken
<PAGE>
in bad faith and which is remedied by the
Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to
comply with any of the provisions of Section
4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by
the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the
Executive to be based at any office or location
other than that described in Section 4(a)(i)(B)
hereof;
(iv) any purported termination by the
Company of the Executive's employment
otherwise than as expressly permitted by this
Agreement; or
(v) any failure by the Company to
comply with and satisfy Section 11(c) of this
Agreement, provided that such successor has
received at least ten days prior written notice
from the Company or the Executive of the
requirements of Section 11(c) of the
Agreement.
For purposes of this Section 5(c), any good faith
determination of "Good Reason" made by the
Executive shall be conclusive.
(d) Notice of Termination. Any termination
by the Company for Cause or by the Executive for
Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in
accordance with Section 12(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment
under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date
of receipt of such notice, specifies the termination
date (which date shall be not more than fifteen days
after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the
Company hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights
hereunder.
(e) Date of Termination. "Date of
Termination" means (i) if the Executive's employment
is terminated by the Company for Cause or by the
Executive for Good Reason, the date of receipt of the
Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall
<PAGE>
be the date on which the Company notifies the
Executive of such termination, or (iii) if the Executive's
employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date,
as the case may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Death or Disability; Other
Than for Cause. If, during the Employment Period,
the Company shall terminate the Executive's
employment upon the Executive's death or Disability
or other than for Cause, or the Executive shall
terminate employment for Good Reason, then all
obligations of the Company and the Executive under
Section 4 shall terminate as of the Date of
Termination and:
(i) the Company shall pay to the
Executive, his estate or his beneficiary, as
applicable, in a lump sum in cash within 30
days after the Date of Termination the
aggregate of the following amounts (such
aggregate shall be hereinafter referred to as
the "Special Termination Amount"), subject to
Section 9(a)(i) of this Agreement:
(A) the sum of (1) the
Executive's Annual Base Salary through
the Date of Termination to the extent not
theretofore paid, (2) the product of (x)
the "Highest Annual Bonus" which is
equal to the greater of (i) the Annual
Bonus paid or payable to the Executive
(and annualized for any fiscal year
consisting of less than twelve full
months or for which the Executive has
been employed for less than twelve full
months) for the most recently completed
fiscal year during the Employment
Period, if any, and (ii) the Recent
Average Bonus and (y) a fraction, the
numerator of which is the number of
days in the current fiscal year through
the Date of Termination, and the
denominator of which is 365 and (3) any
compensation previously deferred by
the Executive (together with any
accrued interest or earnings thereon)
and any accrued vacation pay, in each
case to the extent not theretofore paid
(the sum of the amounts described in
clauses (1), (2) and (3) shall be
hereinafter referred to as the "Accrued
Obligations"); and
(B) provided that the payment
is approved by the separate vote of the
holders of 75% or more of the voting
power of all outstanding stock of the
Company, the amount equal to the
product of (1) two and (2) the sum of (x)
the Executive's Annual Base Salary and
(y) the Highest Annual Bonus; provided,
however, that such amount shall be paid
in lieu of, and the Executive hereby
waives the right to receive, any other
amount of severance relating to salary
or bonus continuation to be received by
<PAGE>
the Executive upon such termination of
employment under any severance plan,
policy or arrangement of the Company;
and
(ii) for the period from the Date of
Termination through the first anniversary of
such date, or such longer period as any plan,
program, practice or policy may provide, the
Company shall continue to provide Executive
an automobile at least in the manner as has
been provided in accordance with the plans,
programs, practices and policies described in
Section 4(b)(vi) of this Agreement and shall
also continue benefits to the Executive and/or
the Executive's family at least equal to those
which would have been provided to them in
accordance with the plans, programs, practices
and policies described in Section 4(b)(iv) of
this Agreement if the Executive's employment
had not been terminated in accordance with
the most favorable plans, practices, programs
or policies of the Company and its affiliated
companies applicable generally to other peer
executives and their families during the 90-day
period immediately preceding the Effective
Date or, if more favorable to the Executive, as
in effect generally with respect to other peer
executives of the Company and its affiliated
companies and their families at any time
thereafter, provided, however, that if the
Executive becomes reemployed with another
employer, all such benefits shall terminate
upon such employment. Notwithstanding the
foregoing, when the Company's obligations to
provide benefits under this paragraph
terminate, the Executive will have the right to
continue such benefits at his own expense for
eighteen months. The Executive shall notify
the Company promptly upon his acceptance of
new employment. The Executive shall notify
the Company promptly upon his acceptance of
new employment. For purposes of determining
eligibility of the Executive for retiree benefits
pursuant to such plans, practices, programs
and policies, the Executive shall be considered
to have remained employed until the end of the
Employment Period and to have retired on the
last day of such period; and
(iii) to the extent not theretofore paid
or provided, subject to Section 9(a)(i) of this
Agreement, the Company shall timely pay or
provide to the Executive, his estate or his
beneficiary, as applicable, any other amounts
or benefits required to be paid or provided or
which the Executive, his estate or his
beneficiary, as applicable, is eligible to receive
pursuant to this Agreement and any plan,
program, policy or practice or contract or
agreement of the Company and its affiliated
companies (such other amounts and benefits
shall be hereinafter referred to as the "Other
Benefits"); and
(iv) if the Executive's employment is
terminated by reason of the Executive's death
during the Employment Period, anything in this
Agreement to the contrary notwithstanding, the
Executive's family shall be entitled to receive
benefits at least equal to the most favorable
<PAGE>
benefits provided by the Company and any of
its affiliated companies to surviving families of
peer executives of the Company and such
affiliated companies under such plans,
programs, practices and policies relating to
family death benefits, if any, as in effect with
respect to other peer executives and their
families at any time during the 90-day period
immediately preceding the Effective Date or, if
more favorable to the Executive and/or the
Executive's family, as in effect on the date of
the Executive's death with respect to other
peer executives of the Company and its
affiliated companies and their families; and
(v) if the Executive's employment is
terminated by reason of the Executive's
Disability during the Employment Period,
anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled
after the Disability Effective Date to receive
disability and other benefits at least equal to
the most favorable to those generally provided
by the Company and its affiliated companies to
disabled executives and/or their families in
accordance with such plans, programs,
practices and policies relating to disability, if
any, as in effect generally with respect to other
peer executives and their families at any time
during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive and/or the
Executive's family, as in effect at any time
thereafter generally with respect to other peer
executives of the Company and its affiliated
companies and their families.
(b) Cause; Other than for Good Reason. If
the Executive's employment shall be terminated for
cause during the Employment Period, this Agreement
shall terminate without further obligations to the
Executive other than the obligation to pay to the
Executive Annual Base Salary through the Date of
Termination plus the amount of any compensation
previously deferred by the Executive, if each case to
the extent theretofore unpaid, and the timely payment
or provision of Other Benefits. If the Executive
terminates employment during the Employment
Period, excluding a termination for Good Reason, this
Agreement shall terminate without further obligations
to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits;
in such case, all Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of
the Date of Termination.
(c) Termination Following the Expiration of
the Employment Period. If the Executive's
employment shall be terminated by the Company
without Cause during the one-year period following
the expiration of the Employment Period, for the
remainder of such one-year period, or such longer
period as any plan, program, practice or policy may
provide, the Company shall continue benefits to the
Executive and/or the Executive's family at least equal
to those which would have been provided to them in
accordance with the plans, programs, practices and
policies described in Section 4(b)(iv) of this
Agreement if the Executive's employment had not
been terminated in accordance with the most
favorable plans, practices, programs or policies of the
Company and its affiliated companies applicable
generally to other peer executives and their families
during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive,
as in effect generally with respect to other peer
<PAGE>
executives of the Company and its affiliated
companies and their families at any time thereafter,
provided, however, that if the Executive becomes
reemployed with another employer, all such benefits
shall terminate upon such employment.
Notwithstanding the foregoing, when the Company's
obligations to provide benefits under this paragraph
terminate, the Executive will have the right to continue
such benefits at his own expense for eighteen
months.
7. Non-Exclusivity of Rights. Except as
provided in Sections 6(a)(i)(B), 6(a)(ii) and 12(f) of
this Agreement, nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice
provided by the Company or any of its affiliated
companies and for which the Executive may qualify,
nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract
or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such
plan, policy, practice or program or contract or
agreement except as explicitly modified by this
Agreement.
8. Full Settlement. The Company's
obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim,
right or action which the Company may have against
the Executive or others. In no event shall the
Executive be obligated to seek other employment or
take any other action by way of mitigation of the
amounts payable to the Executive under any of the
provisions of this Agreement and, except as provided
in Section 6(a)(ii) of this Agreement, such amounts
shall not be reduced whether or not the Executive
obtains other employment. 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 (regardless of the
outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability
under, any provision of this Agreement or any
guarantee of performance thereof (including as a
result of any contest by the Executive about the
amount of any payment pursuant to his Agreement),
plus in each case interest on any delayed payment at
the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986,
as amended (the "Code").
<PAGE>
9. Certain Reductions in the Payment by the Company.
(a) Anything in this Agreement to the
contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the
Company to or for the Employee's benefit (whether
paid or payable or distributed or distributed pursuant
to the terms of this Agreement or otherwise) (a
"Payment") would be nondeductible by the Company
for Federal income tax purposes because of Section
280G of the Code, then the aggregate present value
of amounts payable or distributable to or for the
Executive's benefit pursuant to this Agreement (such
payments or distributions pursuant to this Agreement
are hereinafter referred to as "Agreement Payments")
shall be reduced (but not below zero) to the Reduced
Amount. The "Reduced Amount" shall be the greater
of (i) the highest aggregate present value of
Agreement Payments that can be paid without
causing any payments or benefits hereunder to be an
Excess Parachute Payment or (ii) the largest portion,
up to and including the total, of the Agreement
Payments that after taking into account all applicable
state and Federal taxes (computed at the highest
applicable marginal rate) including any taxes payable
pursuant to Section 4999 of the Code, results in a
greater after-tax benefit to the Executive than the
after-tax benefit to the Executive of the amount
calculated under (i) hereof (computed at the highest
applicable marginal rate). For purposes of this
Section 9, present value shall be determined in
accordance with Section 280G(d)(4) of the Code.
(b) Subject to the provisions of Section 9(c),
all determinations required to be made under this
Section 9 shall be made by the Company's
independent accountants (the "Accounting Firm")
which shall provide detailed supporting calculations
both to the Company and the Executive within 15
business days of the receipt of notice from the
Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or
group effecting the Change of Control, the Executive
and the Company shall mutually appoint another
accounting firm to make the determinations required
hereunder. All fees and expenses of the Accounting
Firm shall be borne solely by the Company. If the
Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report
the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of
a negligence or similar penalty. Any determination by
the Accounting Firm shall be binding upon the
Company and the Executive. If the Accounting Firm
determines that a reduction pursuant to Section 9(a)
is necessary, the Employee shall determine which
and how much of the Agreement Payments (or, at the
election of the Employee, other payments) shall be
eliminated or reduced consistent with the
requirements of this Section 9, provided that, if the
Employee does not make such determination within
ten business days of the receipt of the calculations
made by the Accounting Firm the Company shall
elect which and how much of the Agreement
Payments shall be eliminated or reduced consistent
with the Requirements of this Section 9 and shall
notify the Employee promptly of such election. Within
<PAGE>
five business days thereafter, the Company shall pay
the Employee or distribute to or for the Employee's
benefit such amounts as are then due to the
Employee under this Agreement.
(c) As a result of the uncertainty in the
application of Section 280G of the Code at the time of
the initial determination by the Accounting Firm
hereunder, it is possible that Agreement Payments
will have been made by the Company which should
not have been made ("Overpayment") or that
additional Agreement Payments which will have not
been made by the Company could have been made
("Underpayment"), in each case, consistent with the
calculations required to be made hereunder. In the
event that the Accounting Firm determines that an
Overpayment has been made, any such
Overpayment shall be treated for all purposes as a
loan to the Employee which the Employee shall repay
to the Company together with interest at the
applicable Federal rate provided for in Section
7872(f)(2) of the Code. In the event that the
Accounting Firm determines that an Underpayment
has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of
the Employee together with interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the
Code.
10. Confidential Information. The Executive
shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information,
knowledge or data relating to the Company or any of
its affiliated companies, and their respective
businesses, which shall have been obtained by the
Executive during the Executive's employment by the
Company or any of its affiliated companies and which
shall not be or become public knowledge (other than
by acts by the Executive or representatives of the
Executive in violation of this Agreement). After
termination of the Executive's employment with the
Company, the Executive shall not, without the prior
written consent of the Company or as may otherwise
be required by law or legal process, communicate or
divulge any such information, knowledge or data to
anyone other than the Company and those
designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute
a basis for deferring or withholding any amounts
otherwise payable to the Executive under this
Agreement.
11. Successors. (a) This Agreement is
personal to the Executive and without the prior written
consent of the Company shall not be assignable by
the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure
to the benefit of an be enforceable by the Executive's
legal representative.
(b) This Agreement shall inure to the
benefit of and be binding upon the Company and its
successors and assigns.
(c) 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
<PAGE>
Company to assume expressly and agree to perform
this Agreement in the same manner and to the same
extent that the Company would be required to
perform it if no such succession had taken place. As
used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by
and construed in accordance with the laws of the
State of Mississippi without reference to principles of
conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended
or modified otherwise than by a written agreement
executed by the parties hereto or their respective
successors and legal representative.
(b) All notices and other communications
hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or
certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
At the home address reflected in the
Company's personnel records.
If to the Company:
Jitney-Jungle Stores of America, Inc.
1770 Ellis Avenue, Suite 200
Jackson, MS 39204
Attention: Chief Executive Officer
or to such other address as either party shall have
furnished to the other in writing in accordance
herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity
or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any
amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
<PAGE>
(e) The Executive's or the Company's
failure to insist upon strict compliance with any
provision hereof or any other provision of this
Agreement or the failure to asset any right the
Executive or the Company may have hereunder,
including, without limitation, the right of the Executive
to terminate employment for Good Reason pursuant
to Section 5(c)(i)-(v) of this Agreement, shall not be
deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(f) The Executive and the Company
acknowledge that, except as may otherwise be
provided under any other written employment
agreement between the Executive and the Company,
the employment of the Executive by the Company is
"at will" and, prior to the Effective Date, may be
terminated by either the Executive or the Company at
any time. Moreover, if prior to the Effective Date the
Executive's employment with the Company
terminates, then the Executive shall have no further
rights under this Agreement. If the Executive has a
written employment agreement with the Company,
that agreement shall be superseded by this
Agreement upon a Change of Control; provided, that
the salary, bonus, incentive, savings, retirement,
welfare benefits, expense reimbursement, fringe
benefits, office and support staff and vacation
provisions, if any, of such agreement shall provide the
applicable measure of compensation provided to the
Executive by the Company and its affiliated
companies prior to the Change of Control for
purposes of this Agreement (unless the Company and
its affiliated companies in fact provided compensation
higher than the compensation required to be provided
under the agreement, in which case the higher
amount or benefit shall apply), but provided further,
however, that any provisions with respect to
severance benefits in such agreement shall no longer
be applicable and shall be replaced by the benefits
provided under this Agreement. Notwithstanding
anything herein to the contrary, the provisions of
Section 10 of that certain Employment Agreement
between the Executive and Company dated effective
February 23, 1997 shall continue even after this
Agreement is effective unless otherwise modified in
writing by both the Executive and the Company.
<PAGE>
IN WITNESS WHEREOF, the Executive
has hereunto set the Executive's hand and, pursuant
to the authorization from its Board of Directors, the
Company has caused these presents to be executed
in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE:
Name: Michael E. Julian
JITNEY-JUNGLE STORES OF AMERICA,
INC.:
By:
Name:
Title:
<PAGE>
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between Jitney-Jungle
Stores of America, Inc., a Mississippi corporation (the
"Company") and Ronald E. Johnson (the "Executive"),
dated as of the ____ day of ____________, 1999.
The Board of Directors of the Company (the
"Board"), has determined that it is in the best interest
of the Company and its shareholders to assure that
the Company will have the continued dedication of
the Executive, notwithstanding the possibility, threat
or occurrence of a Change of Control (as defined
below) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and
risks created by a pending or threatened Change of
Control and to encourage the Executive's full
attention and dedication to the Company currently
and in the event of any threatened or pending
Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a
Change of Control which ensure that the
compensation and benefits expectations of the
Executive will be satisfied and which are competitive
with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused
the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first
date during the Change of Control Period (as defined
in Section 1(b) on which a Change of Control (as
defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Executive's
employment with the Company is terminated prior to
the date on which the Change of Control occurs, and
if it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request
of a third party who has taken steps reasonably
calculated to effect the Change of Control or (ii)
otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" shall
mean the period commencing on the date hereof and
ending on the third anniversary of such date;
provided, however, that commencing on the date one
year after the date hereof, and on each annual
anniversary of such date (such date and each
anniversary thereof shall be hereinafter referred to as
the "Renewal Date"), the Change of Control Period
shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least
<PAGE>
60 days prior to the Renewal Date the Company shall
give notice to the Executive that the change of
Control Period shall not be so extended.
2. Change of Control. For the purposes of
this Agreement, a "Change of Control" shall mean:
(a) The acquisition by any individual, entity,
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the
Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting
Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the Company, unless
such acquisition causes an individual, entity or group
(other than Bruckmann, Rosser, Sherrill & Co., L.P.)
to beneficially own more than 50% of either the
Outstanding Company Common Stock or the
Outstanding Company Voting Securities, (ii) any
acquisition by the Company or any of its subsidiaries,
(iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Company or any of its subsidiaries, (iv) any
acquisition by any corporation with respect to which,
following such acquisition, more than 60% of,
respectively, the then outstanding shares of common
stock of such corporation and the combined voting
power of the then outstanding voting securities of
such corporation entitled to vote generally in the
election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Company Voting Securities
immediately prior to such acquisition in substantially
the same proportions as their ownership, immediately
prior to such acquisition, of the Outstanding Company
Common Stock and outstanding Company Voting
Securities, as the case may be, (v) any acquisition by
an underwriter or dealer in connection with a public
offering registered under the Securities Act of 1933,
as amended; or (vi) any acquisition of the Company's
common stock from underwriters or dealers in an
initial public offering registered under the Securities
Act of 1933, as amended; provided further, however,
that if and for so long as Bruckmann, Rosser, Sherrill
& Co., L.P. beneficially owns more of both
Outstanding Company Common Stock and
Outstanding Company Voting Securities than the
acquiring individual, entity or group, a Change of
Control shall not have occurred. Shareholders party
to shareholders agreements in effect on the date of
this Agreement shall not be considered a group for
purposes of this Agreement solely as a result of such
agreements or as a result of such shareholders voting
in accordance with the terms of such agreements. In
addition, it is specifically acknowledged that, as long
as Bruckmann, Rosser, Sherrill & Co., L.P.
beneficially owns 20% or more of the Outstanding
Company Common Stock or Outstanding Company
Voting Securities, a Change of control shall not occur
solely as a result of the acquisition of additional
shares of Outstanding Company Common Stock or
<PAGE>
Outstanding Company Voting Securities by (x)
Bruckmann, Rosser, Sherrill & Co., L.P. or (y) the
manager of Bruckmann, Rosser, Sherrill & Co., L.P.,
BRS Partners, Limited Partnership, BRSE
Associates, Inc., Bruce C. Bruckmann, Harold O.
Rosser II, Stephen C. Sherrill, Stephen F. Edwards or
Paul D. Kaminski, as long as such individual or entity
in this clause (y) does not after such acquisition
beneficially own 20% or more of such securities when
considered alone or as a part of any group of which
Bruckmann, Rosser, Sherrill & Co., L.P. is not a
member.
(b) A development whereby the individuals
who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to
the date hereof whose election, or nomination for
election by the Company's shareholders, was
approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall
be considered member of the Incumbent Board, but
excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either
an actual or threatened election contest (such as
terms are used in Rule 14a-11 of Regulation 14A
promulgate under the Exchange Act) or other actual
or threatened solicitation of proxies or consents; or
(c) Consummation by the Company of a
reorganization, merger or consolidation, in each case,
with respect to which all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such reorganization,
merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than 60% of,
respectively, then outstanding shares of common
stock and the combined voting power of the then
outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the
corporation resulting from such reorganization,
merger or consolidation in substantially the same
proportions as their ownership, immediately prior to
such reorganization, merger or consolidation of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case
may be; or
(d) (i) Approval by the shareholders of the
Company of a complete liquidation or dissolution of
the Company or (ii) consummation of the sale or
disposition of all or substantially all of the assets of
the Company, other than to a corporation, with
respect to which following such sale or other
disposition, more than 60% of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the
then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
<PAGE>
substantially all of the individuals and entities who
were the beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately
prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately
prior to such sale or other disposition, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case
may be.
3. Employment Period. The Company
hereby agrees to continue the Executive in its
employ, and the Executive hereby agrees to remain in
the employ of the Company, for the period
commencing on the Effective Date and ending on the
second anniversary of such date (the "Employment
Period").
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period,
(A) the Executive's position (including status,
officers, titles and reporting requirements),
authority, duties and responsibilities shall be at
least commensurate in all material respects
with the most significant of those held,
exercised and assigned at a time during the
90-day period immediately preceding the
Effective Date and (B) the Executive's services
shall be performed at the location where the
Executive was employed immediately
preceding the Effective Date or any office or
location less than 35 miles from such location.
(ii) During the Employment Period,
and excluding any periods of sick leave to
which the Executive is entitled, the Executive
agrees to devote reasonable attention and
time during normal business hours to the
business and affairs of the Company and, to
the extent necessary to discharge the
responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable
best efforts to perform faithfully and efficiently
such responsibilities. During the Employment
Period it shall not be a violation of this
Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational
institutions and (C) manage personal
investments, so long as such activities do not
significantly interfere with the performance of
the Executive's responsibilities as an employee
of the Company in accordance with this
Agreement. It is expressly understood and
agreed that to the extent that any such
activities have been conducted by the
Executive prior to the Effective Date, the
continued conduct of such activities (or the
conduct of activities similar in nature and
scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to
interfere with the performance of the
Executive's responsibilities to the Company.
<PAGE>
(b) Compensation.
(i) Base Salary. During the
Employment Period, the Executive shall
receive an annual base salary, payable in
equal monthly installments, at least equal to
twelve times the highest monthly base salary
paid or payable to the Executive by the
Company and its affiliated companies during
the twelve month period immediately preceding
the month in which the Effective Date occurs
("Annual Base Salary"). As used in this
Agreement, the term "affiliated companies"
shall include any company controlled by,
controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to
Annual Base Salary, the Executive shall be
awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the
"Annual Bonus") in cash at least equal to the
average annual bonus paid or payable to the
Executive by the Company and its affiliated
companies in respect of the three fiscal years
(annualized for any fiscal year consisting of
less than twelve full months or with respect to
which the Executive has been employed by the
Company for less than twelve full months)
immediately preceding the fiscal year in which
the Effective Date occurs (the "Recent Average
Bonus"). Such annual Bonus shall be paid no
later than the third month of the fiscal year next
following the fiscal year for which the annual
Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual
Bonus.
(iii) Incentive, Savings and
Retirement Plans. During the Employment
Period, the Executive shall be entitled to
participate in all incentive, savings and
retirement plans, practices, policies and
programs applicable generally to other peer
executives of the Company and its affiliated
companies, but in no event shall such plans,
practices, policies and programs provide the
Executive with incentive opportunities
(measured with respect to both regular and
special incentive opportunities, to the extent, if
any, that such distinction is applicable),
savings opportunities and retirement benefit
opportunities, in each case, less favorable, in
the aggregate, than the most favorable of
those provided by the Company and its
affiliated companies for the Executive under
such plans, practices, policies and programs
as in effect at any time during the 90-day
period immediately preceding the Effective
Date, or, if more favorable to the Executive,
those provided generally to other peer
executives of the company and its affiliated
companies at any time after the Effective Date.
(iv) Welfare Benefit Plans. During
the Employment Period and for a period of one
year thereafter, provided the Executive
remains employed by the Company, the
Executive and/or the Executive's family, as the
case may be shall be eligible for participation
in and shall receive all benefits under welfare
benefit plans, practices, policies and programs
<PAGE>
provided by the Company and its affiliated
companies (including, without limitation,
medical, prescription, dental, disability, salary,
continuance, employee life, group life,
accidental death and travel accident insurance
plans and programs) to the extent applicable
generally to other peer executives of the
Company and its affiliated companies, but in
no event shall such plans, practices, policies
and programs provide the Executive with
benefits which are less favorable, in the
aggregate, than the most favorable of such
plans, practices, policies and programs in
effect for the Executive at any time during the
90-day period immediately preceding the
Effective Date or if more favorable to the
Executive, those provided generally to other
peer executives of the Company and its
affiliated companies at any time after the
Effective Date.
(v) Expenses. During the
Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all
reasonable expenses incurred by the
Executive in accordance with the most
favorable policies, practices and procedures of
the Company and its affiliated companies in
effect for the Executive at any time during the
90-day period immediately preceding the
Effective Date or, if more favorable to the
Executive, as in effect generally with respect to
other peer executives of the Company and its
affiliated companies at any time thereafter.
(vi) Fringe Benefits. During the
Employment Period, the Executive shall be
entitled to fringe benefits in accordance with
the most favorable plans, practices, programs
and policies of the Company and its affiliated
companies in effect for the Executive at any
time during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive, as in effect
generally with respect to other peer executives
of the Company and its affiliated companies at
any time thereafter.
(vii) Office and Support Staff. During
the Employment Period, the Executive shall be
entitled to an office or offices of a size and with
furnishings and other appointments, and to
secretarial and other assistance, at least equal
to the most favorable of the foregoing provided
to the Executive by the Company and its
affiliated companies at any time during the 90-
day period immediately preceding the Effective
Date or, if more favorable to the Executive, as
provided generally with respect to other peer
executives of the Company and its affiliated
companies at any time thereafter.
(viii) Vacation. During the Employment
Period, the Executive shall be entitled to paid
vacation in accordance with the most favorable
plans, policies and practices of the Company
and its affiliated companies in effect for the
Executive at any time during the 90-day period
<PAGE>
immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect
generally with respect to other peer executives
of the Company and its affiliated companies at
any time thereafter.
5. Termination of Employment.
(a) Death or Disability. The Executive's
employment shall terminate automatically upon the
Executive's death during the Employment Period. If
the Company determines in good faith that the
Disability of the Executive has occurred during the
Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive
written notice in accordance with Section 12(b) of this
Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's
employment with the Company shall terminate
effective on the 15th day after receipt of such notice by
the Executive (the "Disability Effective Date"),
provided that, within the 15 days after such receipt,
the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes
of this Agreement, "Disability" shall mean the absence
of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental
or physical illness which is determined to be total and
permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the
Executive's legal representative (such agreement as
to acceptability not to be withheld unreasonably).
(b) Cause The Company may terminate
the Executive's employment during the Employment
Period for Cause. For purposes of this Agreement,
"Cause" shall mean (i) repeated violations by the
Executive of the Executive's obligations under
Section 4(a) of this Agreement (other than as a result
of incapacity due to physical or mental illness) which
are demonstrably willful and deliberate on the
Executive's part, which are committed in bad faith or
without reasonable belief that such violations are in
the best interest of the Company and which are not
remedied in a reasonable period of time after receipt
of written notice from the Company specifying such
violations or (ii) the conviction of the Executive of a
felony involving moral turpitude.
(c) Good Reason. The Executive's
employment may be terminated during the
Employment Period by the Executive for Good
Reason. For purposes of this Agreement, "Good
Reason" shall mean:
(i) the assignment to the Executive
of any duties inconsistent in any respect with
the Executive's position (including status,
offices, titles and reporting requirements),
authority, duties or responsibilities as
contemplated by Section 4(a) of this
Agreement, or any other action by the
Company which results in a diminution in such
position, authority, duties and responsibilities,
excluding for this purpose an isolated,
insubstantial and inadvertent action not taken
<PAGE>
in bad faith and which is remedied by the
Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to
comply with any of the provisions of Section
4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by
the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the
Executive to be based at any office or location
other than that described in Section 4(a)(i)(B)
hereof;
(iv) any purported termination by the
Company of the Executive's employment
otherwise than as expressly permitted by this
Agreement; or
(v) any failure by the Company to
comply with and satisfy Section 11(c) of this
Agreement, provided that such successor has
received at least ten days prior written notice
from the Company or the Executive of the
requirements of Section 11(c) of the
Agreement.
For purposes of this Section 5(c), any good faith
determination of "Good Reason" made by the
Executive shall be conclusive.
(d) Notice of Termination. Any termination
by the Company for Cause or by the Executive for
Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in
accordance with Section 12(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment
under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date
of receipt of such notice, specifies the termination
date (which date shall be not more than fifteen days
after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the
Company hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights
hereunder.
(e) Date of Termination. "Date of
Termination" means (i) if the Executive's employment
is terminated by the Company for Cause or by the
Executive for Good Reason, the date of receipt of the
Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall
<PAGE>
be the date on which the Company notifies the
Executive of such termination, or (iii) if the Executive's
employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date,
as the case may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Death or Disability; Other
Than for Cause. If, during the Employment Period,
the Company shall terminate the Executive's
employment upon the Executive's death or Disability
or other than for Cause, or the Executive shall
terminate employment for Good Reason, then all
obligations of the Company and the Executive under
Section 4 shall terminate as of the Date of
Termination and:
(i) the Company shall pay to the
Executive, his estate or his beneficiary, as
applicable, in a lump sum in cash within 30
days after the Date of Termination the
aggregate of the following amounts (such
aggregate shall be hereinafter referred to as
the "Special Termination Amount"), subject to
Section 9(a)(i) of this Agreement:
(A) the sum of (1) the
Executive's Annual Base Salary through
the Date of Termination to the extent not
theretofore paid, (2) the product of (x)
the "Highest Annual Bonus" which is
equal to the greater of (i) the Annual
Bonus paid or payable to the Executive
(and annualized for any fiscal year
consisting of less than twelve full
months or for which the Executive has
been employed for less than twelve full
months) for the most recently completed
fiscal year during the Employment
Period, if any, and (ii) the Recent
Average Bonus and (y) a fraction, the
numerator of which is the number of
days in the current fiscal year through
the Date of Termination, and the
denominator of which is 365 and (3) any
compensation previously deferred by
the Executive (together with any
accrued interest or earnings thereon)
and any accrued vacation pay, in each
case to the extent not theretofore paid
(the sum of the amounts described in
clauses (1), (2) and (3) shall be
hereinafter referred to as the "Accrued
Obligations"); and
(B) provided that the payment
is approved by the separate vote of the
holders of 75% or more of the voting
power of all outstanding stock of the
Company, the amount equal to the
product of (1) two and (2) the sum of (x)
the Executive's Annual Base Salary and
(y) the Highest Annual Bonus; provided,
however, that such amount shall be paid
in lieu of, and the Executive hereby
waives the right to receive, any other
amount of severance relating to salary
or bonus continuation to be received by
<PAGE>
the Executive upon such termination of
employment under any severance plan,
policy or arrangement of the Company;
and
(ii) for the period from the Date of
Termination through the first anniversary of
such date, or such longer period as any plan,
program, practice or policy may provide, the
Company shall continue to provide Executive
an automobile at least in the manner as has
been provided in accordance with the plans,
programs, practices and policies described in
section 4(b)(vi) of this Agreement and shall
also continue benefits to the Executive and/or
the Executive's family at least equal to those
which would have been provided to them in
accordance with the plans, programs, practices
and policies described in Section 4(b)(iv) of
this Agreement if the Executive's employment
had not been terminated in accordance with
the most favorable plans, practices, programs
or policies of the Company and its affiliated
companies applicable generally to other peer
executives and their families during the 90-day
period immediately preceding the Effective
Date or, if more favorable to the Executive, as
in effect generally with respect to other peer
executives of the Company and its affiliated
companies and their families at any time
thereafter, provided, however, that if the
Executive becomes reemployed with another
employer, all such benefits shall terminate
upon such employment. Notwithstanding the
foregoing, when the Company's obligations to
provide benefits under this paragraph
terminate, the Executive will have the right to
continue such benefits at his own expense for
eighteen months. The Executive shall notify
the Company promptly upon his acceptance of
new employment. The Executive shall notify
the Company promptly upon his acceptance of
new employment. For purposes of determining
eligibility of the Executive for retiree benefits
pursuant to such plans, practices, programs
and policies, the Executive shall be considered
to have remained employed until the end of the
Employment Period and to have retired on the
last day of such period; and
(iii) to the extent not theretofore paid
or provided, subject to Section 9(a)(i) of this
Agreement, the Company shall timely pay or
provide to the Executive, his estate or his
beneficiary, as applicable, any other amounts
or benefits required to be paid or provided or
which the Executive, his estate or his
beneficiary, as applicable, is eligible to receive
pursuant to this Agreement and any plan,
program, policy or practice or contract or
agreement of the Company and its affiliated
companies (such other amounts and benefits
shall be hereinafter referred to as the "Other
Benefits"); and
(iv) if the Executive's employment is
terminated by reason of the Executive's death
during the Employment Period, anything in this
Agreement to the contrary notwithstanding, the
Executive's family shall be entitled to receive
benefits at least equal to the most favorable
benefits provided by the Company and any of
<PAGE>
its affiliated companies to surviving families of
peer executives of the Company and such
affiliated companies under such plans,
programs, practices and policies relating to
family death benefits, if any, as in effect with
respect to other peer executives and their
families at any time during the 90-day period
immediately preceding the Effective Date or, if
more favorable to the Executive and/or the
Executive's family, as in effect on the date of
the Executive's death with respect to other
peer executives of the Company and its
affiliated companies and their families; and
(v) if the Executive's employment is
terminated by reason of the Executive's
Disability during the Employment Period,
anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled
after the Disability Effective Date to receive
disability and other benefits at least equal to
the most favorable to those generally provided
by the Company and its affiliated companies to
disabled executives and/or their families in
accordance with such plans, programs,
practices and policies relating to disability, if
any, as in effect generally with respect to other
peer executives and their families at any time
during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive and/or the
Executive's family, as in effect at any time
thereafter generally with respect to other peer
executives of the Company and its affiliated
companies and their families.
(b) Cause; Other than for Good Reason. If
the Executive's employment shall be terminated for
Cause during the Employment Period, this Agreement
shall terminate without further obligations to the
Executive other than the obligation to pay to the
Executive Annual Base Salary through the Date of
Termination plus the amount of any compensation
previously deferred by the Executive, if each case to
the extent theretofore unpaid, and the timely payment
or provision of Other Benefits. If the Executive
terminates employment during the Employment
Period, excluding a termination for Good Reason, this
Agreement shall terminate without further obligations
to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits;
in such case, all Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of
the Date of Termination.
(c) Termination Following the Expiration of
the Employment Period. If the Executive's
employment shall be terminated by the Company
without Cause during the one-year period following
the expiration of the Employment Period, for the
remainder of such one-year period, or such longer
period as any plan, program, practice or policy may
provide, the Company shall continue benefits to the
Executive and/or the Executive's family at least equal
to those which would have been provided to them in
accordance with the plans, programs, practices and
policies described in Section 4(b)(iv) of this
Agreement if the Executive's employment had not
been terminated in accordance with the most
favorable plans, practices, programs or policies of the
<PAGE>
Company and its affiliated companies applicable
generally to other peer executives and their families
during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive,
as in effect generally with respect to other peer
executives of the Company and its affiliated
companies and their families at any time thereafter,
provided, however, that if the Executive becomes
reemployed with another employer, all such benefits
shall terminate upon such employment.
Notwithstanding the foregoing, when the Company's
obligations to provide benefits under this paragraph
terminate, the Executive will have the right to continue
such benefits at his own expense for eighteen
months.
7. Non-Exclusivity of Rights. Except as
provided in Sections 6(a)(i)(B), 6(a)(ii) and 12(f) of
this Agreement, nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice
provided by the Company or any of its affiliated
companies and for which the Executive may qualify,
nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract
or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such
plan, policy, practice or program or contract or
agreement except as explicitly modified by this
Agreement.
8. Full Settlement. The Company's
obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim,
right or action which the Company may have against
the Executive or others. In no event shall the
Executive be obligated to seek other employment or
take any other action by way of mitigation of the
amounts payable to the Executive under any of the
provisions of this Agreement and, except as provided
in Section 6(a)(ii) of this Agreement, such amounts
shall not be reduced whether or not the Executive
obtains other employment. 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 (regardless of the
outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability
under, any provision of this Agreement or any
guarantee of performance thereof (including as a
result of any contest by the Executive about the
amount of any payment pursuant to his Agreement),
plus in each case interest on any delayed payment at
the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986,
as amended (the "Code").
<PAGE>
9. Certain Reductions in the Payment by
the Company.
(a) Anything in this Agreement to the
contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the
Company to or for the Employee's benefit (whether
paid or payable or distributed or distributed pursuant
to the terms of this Agreement or otherwise) (a
"Payment") would be nondeductible by the Company
for Federal income tax purposes because of Section
280G of the Code, then the aggregate present value
of amounts payable or distributable to or for the
Executive's benefit pursuant to this Agreement (such
payments or distributions pursuant to this Agreement
are hereinafter referred to as "Agreement Payments")
shall be reduced (but not below zero) to the Reduced
Amount. The "Reduced Amount" shall be the greater
of (i) the highest aggregate present value of
Agreement Payments that can be paid without
causing any payments or benefits hereunder to be an
Excess Parachute Payment or (ii) the largest portion,
up to and including the total, of the Agreement
Payments that after taking into account all applicable
state and Federal taxes (computed at the highest
applicable marginal rate) including any taxes payable
pursuant to Section 4999 of the Code, results in a
greater after-tax benefit to the Executive than the
after-tax benefit to the Executive of the amount
calculated under (i) hereof (computed at the highest
applicable marginal rate). For purposes of this
Section 9, present value shall be determined in
accordance with Section 280G(d)(4) of the Code.
(b) Subject to the provisions of Section 9(c),
all determinations required to be made under this
Section 9 shall be made by the Company's
independent accountants (the "Accounting Firm")
which shall provide detailed supporting calculations
both to the Company and the Executive within 15
business days of the receipt of notice from the
Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or
group effecting the Change of Control, the Executive
and the Company shall mutually appoint another
accounting firm to make the determinations required
hereunder. All fees and expenses of the Accounting
Firm shall be borne solely by the Company. If the
Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report
the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of
a negligence or similar penalty. Any determination by
the Accounting Firm shall be binding upon the
Company and the Executive. If the Accounting Firm
determines that a reduction pursuant to Section 9(a)
is necessary, the Employee shall determine which
and how much of the Agreement Payments (or, at the
election of the Employee, other payments) shall be
eliminated or reduced consistent with the
requirements of this Section 9, provided that, if the
Employee does not make such determination within
ten business days of the receipt of the calculations
made by the Accounting Firm the Company shall
elect which and how much of the Agreement
Payments shall be eliminated or reduced consistent
with the Requirements of this Section 9 and shall
notify the Employee promptly of such election. Within
<PAGE>
five business days thereafter, the Company shall pay
the Employee or distribute to or for the Employee's
benefit such amounts as are then due to the
Employee under this Agreement.
(c) As a result of the uncertainty in the
application of Section 280G of the Code at the time of
the initial determination by the Accounting Firm
hereunder, it is possible that Agreement Payments
will have been made by the Company which should
not have been made ("Overpayment") or that
additional Agreement Payments which will have not
been made by the Company could have been made
("Underpayment"), in each case, consistent with the
calculations required to be made hereunder. In the
event that the Accounting Firm determines that an
Overpayment has been made, any such
Overpayment shall be treated for all purposes as a
loan to the Employee which the Employee shall repay
to the Company together with interest at the
applicable Federal rate provided for in Section
7872(f)(2) of the Code. In the event that the
Accounting Firm determines that an Underpayment
has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of
the Employee together with interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the
Code.
10. Confidential Information. The Executive
shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information,
knowledge or data relating to the Company or any of
its affiliated companies, and their respective
businesses, which shall have been obtained by the
Executive during the Executive's employment by the
Company or any of its affiliated companies and which
shall not be or become public knowledge (other than
by acts by the Executive or representatives of the
Executive in violation of this Agreement). After
termination of the Executive's employment with the
Company, the Executive shall not, without the prior
written consent of the Company or as may otherwise
be required by law or legal process, communicate or
divulge any such information, knowledge or data to
anyone other than the Company and those
designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute
a basis for deferring or withholding any amounts
otherwise payable to the Executive under this
Agreement.
11. Successors. (a) This Agreement is
personal to the Executive and without the prior written
consent of the Company shall not be assignable by
the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure
to the benefit of an be enforceable by the Executive's
legal representative.
(b) This Agreement shall inure to the
benefit of and be binding upon the Company and its
successors and assigns.
(c) 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
<PAGE>
Company to assume expressly and agree to perform
this Agreement in the same manner and to the same
extent that the Company would be required to
perform it if no such succession had taken place. As
used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by
and construed in accordance with the laws of the
State of Mississippi without reference to principles of
conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended
or modified otherwise than by a written agreement
executed by the parties hereto or their respective
successors and legal representative.
(b) All notices and other communications
hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or
certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
At the home address reflected in the
Company's personnel records.
If to the Company:
Jitney-Jungle Stores of America, Inc.
1770 Ellis Avenue, Suite 200
Jackson, MS 39204
Attention: Chief Executive Officer
or to such other address as either party shall have
furnished to the other in writing in accordance
herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity
or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any
amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
<PAGE>
(e) The Executive's or the Company's
failure to insist upon strict compliance with any
provision hereof or any other provision of this
Agreement or the failure to asset any right the
Executive or the Company may have hereunder,
including, without limitation, the right of the Executive
to terminate employment for Good Reason pursuant
to Section 5(c)(i)-(v) of this Agreement, shall not be
deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(f) The Executive and the Company
acknowledge that, except as may otherwise be
provided under any other written employment
agreement between the Executive and the Company,
the employment of the Executive by the Company is
"at will" and, prior to the Effective Date, may be
terminated by either the Executive or the Company at
any time. Moreover, if prior to the Effective Date the
Executive's employment with the Company
terminates, then the Executive shall have no further
rights under this Agreement. If the Executive has a
written employment agreement with the Company,
that agreement shall be superseded by this
Agreement upon a Change of Control; provided, that
the salary, bonus, incentive, savings, retirement,
welfare benefits, expense reimbursement, fringe
benefits, office and support staff and vacation
provisions, if any, of such agreement shall provide the
applicable measure of compensation provided to the
Executive by the Company and its affiliated
companies prior to the Change of Control for
purposes of this Agreement (unless the Company and
its affiliated companies in fact provided compensation
higher than the compensation required to be provided
under the agreement, in which case the higher
amount or benefit shall apply), but provided further,
however, that any provisions with respect to
severance benefits in such agreement shall no longer
be applicable and shall be replaced by the benefits
provided under this Agreement.
IN WITNESS WHEREOF, the Executive
has hereunto set the Executive's hand and, pursuant
to the authorization from its Board of Directors, the
Company has caused these presents to be executed
in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE:
Name: Ronald E. Johnson
JITNEY-JUNGLE STORES OF AMERICA,
INC.:
By:
Name:
Title:
<PAGE>
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between Jitney-Jungle
Stores of America, Inc., a Mississippi corporation (the
"Company") and R. Barry Cannada (the "Executive"),
dated as of the ____ day of ____________, 1999.
The Board of Directors of the Company (the
"Board"), has determined that it is in the best interest
of the Company and its shareholders to assure that
the Company will have the continued dedication of
the Executive, notwithstanding the possibility, threat
or occurrence of a Change of Control (as defined
below) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and
risks created by a pending or threatened Change of
Control and to encourage the Executive's full
attention and dedication to the Company currently
and in the event of any threatened or pending
Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a
Change of Control which ensure that the
compensation and benefits expectations of the
Executive will be satisfied and which are competitive
with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused
the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first
date during the Change of Control Period (as defined
in Section 1(b) on which a Change of Control (as
defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Executive's
employment with the Company is terminated prior to
the date on which the Change of Control occurs, and
if it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request
of a third party who has taken steps reasonably
calculated to effect the Change of Control or (ii)
otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this
Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" shall
mean the period commencing on the date hereof and
ending on the third anniversary of such date;
provided, however, that commencing on the date one
year after the date hereof, and on each annual
anniversary of such date (such date and each
anniversary thereof shall be hereinafter referred to as
the "Renewal Date"), the Change of Control Period
shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least
<PAGE>
60 days prior to the Renewal Date the Company shall
give notice to the Executive that the change of
Control Period shall not be so extended.
2. Change of Control. For the purposes of
this Agreement, a "Change of Control" shall mean:
(a) The acquisition by any individual, entity,
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the
Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting
Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the Company, unless
such acquisition causes an individual, entity or group
(other than Bruckmann, Rosser, Sherrill & Co., L.P.)
to beneficially own more than 50% of either the
Outstanding Company Common Stock or the
Outstanding Company Voting Securities, (ii) any
acquisition by the Company or any of its subsidiaries,
(iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Company or any of its subsidiaries, (iv) any
acquisition by any corporation with respect to which,
following such acquisition, more than 60% of,
respectively, the then outstanding shares of common
stock of such corporation and the combined voting
power of the then outstanding voting securities of
such corporation entitled to vote generally in the
election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Company Voting Securities
immediately prior to such acquisition in substantially
the same proportions as their ownership, immediately
prior to such acquisition, of the Outstanding Company
Common Stock and outstanding Company Voting
Securities, as the case may be, (v) any acquisition by
an underwriter or dealer in connection with a public
offering registered under the Securities Act of 1933,
as amended; or (vi) any acquisition of the Company's
common stock from underwriters or dealers in an
initial public offering registered under the Securities
Act of 1933, as amended; provided further, however,
that if and for so long as Bruckmann, Rosser, Sherrill
& Co., L.P. beneficially owns more of both
Outstanding Company Common Stock and
Outstanding Company Voting Securities than the
acquiring individual, entity or group, a Change of
Control shall not have occurred. Shareholders party
to shareholders agreements in effect on the date of
this Agreement shall not be considered a group for
purposes of this Agreement solely as a result of such
agreements or as a result of such shareholders voting
in accordance with the terms of such agreements. In
addition, it is specifically acknowledged that, as long
as Bruckmann, Rosser, Sherrill & Co., L.P.
beneficially owns 20% or more of the Outstanding
<PAGE>
Company Common Stock or Outstanding Company
Voting Securities, a Change of control shall not occur
solely as a result of the acquisition of additional
shares of Outstanding Company Common Stock or
Outstanding Company Voting Securities by (x)
Bruckmann, Rosser, Sherrill & Co., L.P. or (y) the
manager of Bruckmann, Rosser, Sherrill & Co., L.P.,
BRS Partners, Limited Partnership, BRSE
Associates, Inc., Bruce C. Bruckmann, Harold O.
Rosser II, Stephen C. Sherrill, Stephen F. Edwards or
Paul D. Kaminski, as long as such individual or entity
in this clause (y) does not after such acquisition
beneficially own 20% or more of such securities when
considered alone or as a part of any group of which
Bruckmann, Rosser, Sherrill & Co., L.P. is not a
member.
(b) A development whereby the individuals
who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to
the date hereof whose election, or nomination for
election by the Company's shareholders, was
approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall
be considered member of the Incumbent Board, but
excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either
an actual or threatened election contest (such as
terms are used in Rule 14a-11 of Regulation 14A
promulgate under the Exchange Act) or other actual
or threatened solicitation of proxies or consents; or
(c) Consummation by the Company of a
reorganization, merger or consolidation, in each case,
with respect to which all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such reorganization,
merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than 60% of,
respectively, then outstanding shares of common
stock and the combined voting power of the then
outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the
corporation resulting from such reorganization,
merger or consolidation in substantially the same
proportions as their ownership, immediately prior to
such reorganization, merger or consolidation of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case
may be; or
(d) (i) Approval by the shareholders of the
Company of a complete liquidation or dissolution of
the Company or (ii) consummation of the sale or
disposition of all or substantially all of the assets of
the Company, other than to a corporation, with
respect to which following such sale or other
disposition, more than 60% of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the
then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
<PAGE>
substantially all of the individuals and entities who
were the beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately
prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately
prior to such sale or other disposition, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case
may be.
3. Employment Period. The Company
hereby agrees to continue the Executive in its
employ, and the Executive hereby agrees to remain in
the employ of the Company, for the period
commencing on the Effective Date and ending on the
second anniversary of such date (the "Employment
Period").
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period,
(A) the Executive's position (including status,
officers, titles and reporting requirements),
authority, duties and responsibilities shall be at
least commensurate in all material respects
with the most significant of those held,
exercised and assigned at a time during the
90-day period immediately preceding the
Effective Date and (B) the Executive's services
shall be performed at the location where the
Executive was employed immediately
preceding the Effective Date or any office or
location less than 35 miles from such location.
(ii) During the Employment Period,
and excluding any periods of sick leave to
which the Executive is entitled, the Executive
agrees to devote reasonable attention and
time during normal business hours to the
business and affairs of the Company and, to
the extent necessary to discharge the
responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable
best efforts to perform faithfully and efficiently
such responsibilities. During the Employment
Period it shall not be a violation of this
Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational
institutions and (C) manage personal
investments, so long as such activities do not
significantly interfere with the performance of
the Executive's responsibilities as an employee
of the Company in accordance with this
Agreement. It is expressly understood and
agreed that to the extent that any such
activities have been conducted by the
Executive prior to the Effective Date, the
continued conduct of such activities (or the
conduct of activities similar in nature and
scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to
interfere with the performance of the
Executive's responsibilities to the Company.
<PAGE>
(b) Compensation.
(i) Base Salary. During the
Employment Period, the Executive shall
receive an annual base salary, payable in
equal monthly installments, at least equal to
twelve times the highest monthly base salary
paid or payable to the Executive by the
Company and its affiliated companies during
the twelve month period immediately preceding
the month in which the Effective Date occurs
("Annual Base Salary"). As used in this
Agreement, the term "affiliated companies"
shall include any company controlled by,
controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to
Annual Base Salary, the Executive shall be
awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the
"Annual Bonus") in cash at least equal to the
average annual bonus paid or payable to the
Executive by the Company and its affiliated
companies in respect of the three fiscal years
(annualized for any fiscal year consisting of
less than twelve full months or with respect to
which the Executive has been employed by the
Company for less than twelve full months)
immediately preceding the fiscal year in which
the Effective Date occurs (the "Recent Average
Bonus"). Such annual Bonus shall be paid no
later than the third month of the fiscal year next
following the fiscal year for which the annual
Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual
Bonus.
(iii) Incentive, Savings and
Retirement Plans. During the Employment
Period, the Executive shall be entitled to
participate in all incentive, savings and
retirement plans, practices, policies and
programs applicable generally to other peer
executives of the Company and its affiliated
companies, but in no event shall such plans,
practices, policies and programs provide the
Executive with incentive opportunities
(measured with respect to both regular and
special incentive opportunities, to the extent, if
any, that such distinction is applicable),
savings opportunities and retirement benefit
opportunities, in each case, less favorable, in
the aggregate, than the most favorable of
those provided by the Company and its
affiliated companies for the Executive under
such plans, practices, policies and programs
as in effect at any time during the 90-day
period immediately preceding the Effective
Date, or, if more favorable to the Executive,
those provided generally to other peer
executives of the company and its affiliated
companies at any time after the Effective Date.
(iv) Welfare Benefit Plans. During
the Employment Period and for a period of one
year thereafter, provided the Executive
remains employed by the Company, the
Executive and/or the Executive's family, as the
case may be shall be eligible for participation
in and shall receive all benefits under welfare
<PAGE>
benefit plans, practices, policies and programs
provided by the Company and its affiliated
companies (including, without limitation,
medical, prescription, dental, disability, salary,
continuance, employee life, group life,
accidental death and travel accident insurance
plans and programs) to the extent applicable
generally to other peer executives of the
Company and its affiliated companies, but in
no event shall such plans, practices, policies
and programs provide the Executive with
benefits which are less favorable, in the
aggregate, than the most favorable of such
plans, practices, policies and programs in
effect for the Executive at any time during the
90-day period immediately preceding the
Effective Date or if more favorable to the
Executive, those provided generally to other
peer executives of the Company and its
affiliated companies at any time after the
Effective Date.
(v) Expenses. During the
Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all
reasonable expenses incurred by the
Executive in accordance with the most
favorable policies, practices and procedures of
the Company and its affiliated companies in
effect for the Executive at any time during the
90-day period immediately preceding the
Effective Date or, if more favorable to the
Executive, as in effect generally with respect to
other peer executives of the Company and its
affiliated companies at any time thereafter.
(vi) Fringe Benefits. During the
Employment Period, the Executive shall be
entitled to fringe benefits in accordance with
the most favorable plans, practices, programs
and policies of the Company and its affiliated
companies in effect for the Executive at any
time during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive, as in effect
generally with respect to other peer executives
of the Company and its affiliated companies at
any time thereafter.
(vii) Office and Support Staff. During
the Employment Period, the Executive shall be
entitled to an office or offices of a size and with
furnishings and other appointments, and to
secretarial and other assistance, at least equal
to the most favorable of the foregoing provided
to the Executive by the Company and its
affiliated companies at any time during the 90-
day period immediately preceding the Effective
Date or, if more favorable to the Executive, as
provided generally with respect to other peer
executives of the Company and its affiliated
companies at any time thereafter.
(viii) Vacation. During the Employment
Period, the Executive shall be entitled to paid
vacation in accordance with the most favorable
plans, policies and practices of the Company
and its affiliated companies in effect for the
Executive at any time during the 90-day period
immediately preceding the Effective Date or, if
<PAGE>
more favorable to the Executive, as in effect
generally with respect to other peer executives
of the Company and its affiliated companies at
any time thereafter.
5. Termination of Employment.
(a) Death or Disability. The Executive's
employment shall terminate automatically upon the
Executive's death during the Employment Period. If
the Company determines in good faith that the
Disability of the Executive has occurred during the
Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive
written notice in accordance with Section 12(b) of this
Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's
employment with the Company shall terminate
effective on the 15th day after receipt of such notice by
the Executive (the "Disability Effective Date"),
provided that, within the 15 days after such receipt,
the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes
of this Agreement, "Disability" shall mean the absence
of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental
or physical illness which is determined to be total and
permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the
Executive's legal representative (such agreement as
to acceptability not to be withheld unreasonably).
(b) Cause The Company may terminate
the Executive's employment during the Employment
Period for Cause. For purposes of this Agreement,
"Cause" shall mean (i) repeated violations by the
Executive of the Executive's obligations under
Section 4(a) of this Agreement (other than as a result
of incapacity due to physical or mental illness) which
are demonstrably willful and deliberate on the
Executive's part, which are committed in bad faith or
without reasonable belief that such violations are in
the best interest of the Company and which are not
remedied in a reasonable period of time after receipt
of written notice from the Company specifying such
violations or (ii) the conviction of the Executive of a
felony involving moral turpitude.
(c) Good Reason. The Executive's
employment may be terminated during the
Employment Period by the Executive for Good
Reason. For purposes of this Agreement, "Good
Reason" shall mean:
(i) the assignment to the Executive
of any duties inconsistent in any respect with
the Executive's position (including status,
offices, titles and reporting requirements),
authority, duties or responsibilities as
contemplated by Section 4(a) of this
Agreement, or any other action by the
Company which results in a diminution in such
position, authority, duties and responsibilities,
excluding for this purpose an isolated,
insubstantial and inadvertent action not taken
<PAGE>
in bad faith and which is remedied by the
Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to
comply with any of the provisions of Section
4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by
the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the
Executive to be based at any office or location
other than that described in Section 4(a)(i)(B)
hereof;
(iv) any purported termination by the
Company of the Executive's employment
otherwise than as expressly permitted by this
Agreement; or
(v) any failure by the Company to
comply with and satisfy Section 11(c) of this
Agreement, provided that such successor has
received at least ten days prior written notice
from the Company or the Executive of the
requirements of Section 11(c) of the
Agreement.
For purposes of this Section 5(c), any good faith
determination of "Good Reason" made by the
Executive shall be conclusive.
(d) Notice of Termination. Any termination
by the Company for Cause or by the Executive for
Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in
accordance with Section 12(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment
under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date
of receipt of such notice, specifies the termination
date (which date shall be not more than fifteen days
after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the
Company hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights
hereunder.
(e) Date of Termination. "Date of
Termination" means (i) if the Executive's employment
is terminated by the Company for Cause or by the
Executive for Good Reason, the date of receipt of the
Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall
<PAGE>
be the date on which the Company notifies the
Executive of such termination, or (iii) if the Executive's
employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date,
as the case may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Death or Disability; Other
Than for Cause. If, during the Employment Period,
the Company shall terminate the Executive's
employment upon the Executive's death or Disability
or other than for Cause, or the Executive shall
terminate employment for Good Reason, then all
obligations of the Company and the Executive under
Section 4 shall terminate as of the Date of
Termination and:
(i) the Company shall pay to the
Executive, his estate or his beneficiary, as
applicable, in a lump sum in cash within 30
days after the Date of Termination the
aggregate of the following amounts (such
aggregate shall be hereinafter referred to as
the "Special Termination Amount"), subject to
Section 9(a)(i) of this Agreement:
(A) the sum of (1) the
Executive's Annual Base Salary through
the Date of Termination to the extent not
theretofore paid, (2) the product of (x)
the "Highest Annual Bonus" which is
equal to the greater of (i) the Annual
Bonus paid or payable to the Executive
(and annualized for any fiscal year
consisting of less than twelve full
months or for which the Executive has
been employed for less than twelve full
months) for the most recently completed
fiscal year during the Employment
Period, if any, and (ii) the Recent
Average Bonus and (y) a fraction, the
numerator of which is the number of
days in the current fiscal year through
the Date of Termination, and the
denominator of which is 365 and (3) any
compensation previously deferred by
the Executive (together with any
accrued interest or earnings thereon)
and any accrued vacation pay, in each
case to the extent not theretofore paid
(the sum of the amounts described in
clauses (1), (2) and (3) shall be
hereinafter referred to as the "Accrued
Obligations"); and
(B) provided that the payment
is approved by the separate vote of the
holders of 75% or more of the voting
power of all outstanding stock of the
Company, the amount equal to the
product of (1) two and (2) the sum of (x)
the Executive's Annual Base Salary and
(y) the Highest Annual Bonus; provided,
however, that such amount shall be paid
in lieu of, and the Executive hereby
waives the right to receive, any other
amount of severance relating to salary
or bonus continuation to be received by
<PAGE>
the Executive upon such termination of
employment under any severance plan,
policy or arrangement of the Company;
and
(ii) for the period from the Date of
Termination through the first anniversary of
such date, or such longer period as any plan,
program, practice or policy may provide, the
Company shall continue to provide Executive
an automobile at least in the manner as has
been provided in accordance with the plans,
programs, practices and policies described in
Section 4(b)(vi) of this Agreement and shall
also continue benefits to the Executive and/or
the Executive's family at least equal to those
which would have been provided to them in
accordance with the plans, programs, practices
and policies described in Section 4(b)(iv) of
this Agreement if the Executive's employment
had not been terminated in accordance with
the most favorable plans, practices, programs
or policies of the Company and its affiliated
companies applicable generally to other peer
executives and their families during the 90-day
period immediately preceding the Effective
Date or, if more favorable to the Executive, as
in effect generally with respect to other peer
executives of the Company and its affiliated
companies and their families at any time
thereafter, provided, however, that if the
Executive becomes reemployed with another
employer, all such benefits shall terminate
upon such employment. Notwithstanding the
foregoing, when the Company's obligations to
provide benefits under this paragraph
terminate, the Executive will have the right to
continue such benefits at his own expense for
eighteen months. The Executive shall notify
the Company promptly upon his acceptance of
new employment. The Executive shall notify
the Company promptly upon his acceptance of
new employment. For purposes of determining
eligibility of the Executive for retiree benefits
pursuant to such plans, practices, programs
and policies, the Executive shall be considered
to have remained employed until the end of the
Employment Period and to have retired on the
last day of such period; and
(iii) to the extent not theretofore paid
or provided, subject to Section 9(a)(i) of this
Agreement, the Company shall timely pay or
provide to the Executive, his estate or his
beneficiary, as applicable, any other amounts
or benefits required to be paid or provided or
which the Executive, his estate or his
beneficiary, as applicable, is eligible to receive
pursuant to this Agreement and any plan,
program, policy or practice or contract or
agreement of the Company and its affiliated
companies (such other amounts and benefits
shall be hereinafter referred to as the "Other
Benefits"); and
(iv) if the Executive's employment is
terminated by reason of the Executive's death
during the Employment Period, anything in this
Agreement to the contrary notwithstanding, the
Executive's family shall be entitled to receive
benefits at least equal to the most favorable
benefits provided by the Company and any of
<PAGE>
its affiliated companies to surviving families of
peer executives of the Company and such
affiliated companies under such plans,
programs, practices and policies relating to
family death benefits, if any, as in effect with
respect to other peer executives and their
families at any time during the 90-day period
immediately preceding the Effective Date or, if
more favorable to the Executive and/or the
Executive's family, as in effect on the date of
the Executive's death with respect to other
peer executives of the Company and its
affiliated companies and their families; and
(v) if the Executive's employment is
terminated by reason of the Executive's
Disability during the Employment Period,
anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled
after the Disability Effective Date to receive
disability and other benefits at least equal to
the most favorable to those generally provided
by the Company and its affiliated companies to
disabled executives and/or their families in
accordance with such plans, programs,
practices and policies relating to disability, if
any, as in effect generally with respect to other
peer executives and their families at any time
during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive and/or the
Executive's family, as in effect at any time
thereafter generally with respect to other peer
executives of the Company and its affiliated
companies and their families.
(b) Cause; Other than for Good Reason. If
the Executive's employment shall be terminated for
Cause during the Employment Period, this Agreement
shall terminate without further obligations to the
Executive other than the obligation to pay to the
Executive Annual Base Salary through the Date of
Termination plus the amount of any compensation
previously deferred by the Executive, if each case to
the extent theretofore unpaid, and the timely payment
or provision of Other Benefits. If the Executive
terminates employment during the Employment
Period, excluding a termination for Good Reason, this
Agreement shall terminate without further obligations
to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits;
in such case, all Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of
the Date of Termination.
(c) Termination Following the Expiration of
the Employment Period. If the Executive's
employment shall be terminated by the Company
without Cause during the one-year period following
the expiration of the Employment Period, for the
remainder of such one-year period, or such longer
period as any plan, program, practice or policy may
provide, the Company shall continue benefits to the
Executive and/or the Executive's family at least equal
to those which would have been provided to them in
accordance with the plans, programs, practices and
policies described in Section 4(b)(iv) of this
Agreement if the Executive's employment had not
been terminated in accordance with the most
favorable plans, practices, programs or policies of the
Company and its affiliated companies applicable
generally to other peer executives and their families
during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive,
as in effect generally with respect to other peer
<PAGE>
executives of the Company and its affiliated
companies and their families at any time thereafter,
provided, however, that if the Executive becomes
reemployed with another employer, all such benefits
shall terminate upon such employment.
Notwithstanding the foregoing, when the Company's
obligations to provide benefits under this paragraph
terminate, the Executive will have the right to continue
such benefits at his own expense for eighteen
months.
7. Non-Exclusivity of Rights. Except as
provided in Sections 6(a)(i)(B), 6(a)(ii) and 12(f) of
this Agreement, nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice
provided by the Company or any of its affiliated
companies and for which the Executive may qualify,
nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract
or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such
plan, policy, practice or program or contract or
agreement except as explicitly modified by this
Agreement.
8. Full Settlement. The Company's
obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim,
right or action which the Company may have against
the Executive or others. In no event shall the
Executive be obligated to seek other employment or
take any other action by way of mitigation of the
amounts payable to the Executive under any of the
provisions of this Agreement and, except as provided
in Section 6(a)(ii) of this Agreement, such amounts
shall not be reduced whether or not the Executive
obtains other employment. 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 (regardless of the
outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability
under, any provision of this Agreement or any
guarantee of performance thereof (including as a
result of any contest by the Executive about the
amount of any payment pursuant to his Agreement),
plus in each case interest on any delayed payment at
the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986,
as amended (the "Code").
9. Certain Reductions in the Payment by the Company.
<PAGE>
(a) Anything in this Agreement to the
contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the
Company to or for the Employee's benefit (whether
paid or payable or distributed or distributed pursuant
to the terms of this Agreement or otherwise) (a
"Payment") would be nondeductible by the Company
for Federal income tax purposes because of Section
280G of the Code, then the aggregate present value
of amounts payable or distributable to or for the
Executive's benefit pursuant to this Agreement (such
payments or distributions pursuant to this Agreement
are hereinafter referred to as "Agreement Payments")
shall be reduced (but not below zero) to the Reduced
Amount. The "Reduced Amount" shall be the greater
of (i) the highest aggregate present value of
Agreement Payments that can be paid without
causing any payments or benefits hereunder to be an
Excess Parachute Payment or (ii) the largest portion,
up to and including the total, of the Agreement
Payments that after taking into account all applicable
state and Federal taxes (computed at the highest
applicable marginal rate) including any taxes payable
pursuant to Section 4999 of the Code, results in a
greater after-tax benefit to the Executive than the
after-tax benefit to the Executive of the amount
calculated under (i) hereof (computed at the highest
applicable marginal rate). For purposes of this
Section 9, present value shall be determined in
accordance with Section 280G(d)(4) of the Code.
(b) Subject to the provisions of Section 9(c),
all determinations required to be made under this
Section 9 shall be made by the Company's
independent accountants (the "Accounting Firm")
which shall provide detailed supporting calculations
both to the Company and the Executive within 15
business days of the receipt of notice from the
Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or
group effecting the Change of Control, the Executive
and the Company shall mutually appoint another
accounting firm to make the determinations required
hereunder. All fees and expenses of the Accounting
Firm shall be borne solely by the Company. If the
Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report
the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of
a negligence or similar penalty. Any determination by
the Accounting Firm shall be binding upon the
Company and the Executive. If the Accounting Firm
determines that a reduction pursuant to Section 9(a)
is necessary, the Employee shall determine which
and how much of the Agreement Payments (or, at the
election of the Employee, other payments) shall be
eliminated or reduced consistent with the
requirements of this Section 9, provided that, if the
Employee does not make such determination within
ten business days of the receipt of the calculations
made by the Accounting Firm the Company shall
elect which and how much of the Agreement
Payments shall be eliminated or reduced consistent
with the Requirements of this Section 9 and shall
notify the Employee promptly of such election. Within
<PAGE>
five business days thereafter, the Company shall pay
the Employee or distribute to or for the Employee's
benefit such amounts as are then due to the
Employee under this Agreement.
(c) As a result of the uncertainty in the
application of Section 280G of the Code at the time of
the initial determination by the Accounting Firm
hereunder, it is possible that Agreement Payments
will have been made by the Company which should
not have been made ("Overpayment") or that
additional Agreement Payments which will have not
been made by the Company could have been made
("Underpayment"), in each case, consistent with the
calculations required to be made hereunder. In the
event that the Accounting Firm determines that an
Overpayment has been made, any such
Overpayment shall be treated for all purposes as a
loan to the Employee which the Employee shall repay
to the Company together with interest at the
applicable Federal rate provided for in Section
7872(f)(2) of the Code. In the event that the
Accounting Firm determines that an Underpayment
has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of
the Employee together with interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the
Code.
10. Confidential Information. The Executive
shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information,
knowledge or data relating to the Company or any of
its affiliated companies, and their respective
businesses, which shall have been obtained by the
Executive during the Executive's employment by the
Company or any of its affiliated companies and which
shall not be or become public knowledge (other than
by acts by the Executive or representatives of the
Executive in violation of this Agreement). After
termination of the Executive's employment with the
Company, the Executive shall not, without the prior
written consent of the Company or as may otherwise
be required by law or legal process, communicate or
divulge any such information, knowledge or data to
anyone other than the Company and those
designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute
a basis for deferring or withholding any amounts
otherwise payable to the Executive under this
Agreement.
11. Successors. (a) This Agreement is
personal to the Executive and without the prior written
consent of the Company shall not be assignable by
the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure
to the benefit of an be enforceable by the Executive's
legal representative.
(b) This Agreement shall inure to the
benefit of and be binding upon the Company and its
successors and assigns.
(c) 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
<PAGE>
Company to assume expressly and agree to perform
this Agreement in the same manner and to the same
extent that the Company would be required to
perform it if no such succession had taken place. As
used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by
and construed in accordance with the laws of the
State of Mississippi without reference to principles of
conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended
or modified otherwise than by a written agreement
executed by the parties hereto or their respective
successors and legal representative.
(b) All notices and other communications
hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or
certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
At the home address reflected in the
Company's personnel records.
If to the Company:
Jitney-Jungle Stores of America, Inc.
1770 Ellis Avenue, Suite 200
Jackson, MS 39204
Attention: Chief Executive Officer
or to such other address as either party shall have
furnished to the other in writing in accordance
herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity
or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any
amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
<PAGE>
(e) The Executive's or the Company's
failure to insist upon strict compliance with any
provision hereof or any other provision of this
Agreement or the failure to asset any right the
Executive or the Company may have hereunder,
including, without limitation, the right of the Executive
to terminate employment for Good Reason pursuant
to Section 5(c)(i)-(v) of this Agreement, shall not be
deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(f) The Executive and the Company
acknowledge that, except as may otherwise be
provided under any other written employment
agreement between the Executive and the Company,
the employment of the Executive by the Company is
"at will" and, prior to the Effective Date, may be
terminated by either the Executive or the Company at
any time. Moreover, if prior to the Effective Date the
Executive's employment with the Company
terminates, then the Executive shall have no further
rights under this Agreement. If the Executive has a
written employment agreement with the Company,
that agreement shall be superseded by this
Agreement upon a Change of Control; provided, that
the salary, bonus, incentive, savings, retirement,
welfare benefits, expense reimbursement, fringe
benefits, office and support staff and vacation
provisions, if any, of such agreement shall provide the
applicable measure of compensation provided to the
Executive by the Company and its affiliated
companies prior to the Change of Control for
purposes of this Agreement (unless the Company and
its affiliated companies in fact provided compensation
higher than the compensation required to be provided
under the agreement, in which case the higher
amount or benefit shall apply), but provided further,
however, that any provisions with respect to
severance benefits in such agreement shall no longer
be applicable and shall be replaced by the benefits
provided under this Agreement.
IN WITNESS WHEREOF, the Executive
has hereunto set the Executive's hand and, pursuant
to the authorization from its Board of Directors, the
Company has caused these presents to be executed
in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE:
Name: R. Barry Cannada
JITNEY-JUNGLE STORES OF AMERICA,
INC.:
By:
Name:
Title:
