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WINN-DIXIE STORES, INC. EXECUTIVE SEVERANCE PLAN GENERAL RELEASE AND SEPARATION AGREEMENT

Release Agreement

WINN-DIXIE STORES, INC. EXECUTIVE SEVERANCE PLAN GENERAL RELEASE AND SEPARATION AGREEMENT | Document Parties: WINN DIXIE STORES INC | Winn-Dixie Stores, Inc You are currently viewing:
This Release Agreement involves

WINN DIXIE STORES INC | Winn-Dixie Stores, Inc

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Title: WINN-DIXIE STORES, INC. EXECUTIVE SEVERANCE PLAN GENERAL RELEASE AND SEPARATION AGREEMENT
Governing Law: Florida     Date: 3/2/2011
Industry: Retail (Grocery)     Sector: Services

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Exhibit 10.1

WINN-DIXIE STORES, INC. EXECUTIVE SEVERANCE PLAN

GENERAL RELEASE AND SEPARATION AGREEMENT

This General Release and Separation Agreement (“Agreement”) is made and entered into between Daniel Portnoy (“Employee”) and Winn-Dixie Stores, Inc., its officers, agents, employees, successors and assigns and any affiliated company, parent, or subsidiary, and their past and present directors, officers, employees, representatives, successors and assigns (“Winn-Dixie”) pursuant to Winn-Dixie Stores, Inc.’s Executive Severance Plan, Plan Number 589, effective January 31, 2008 (“Plan”), with reference to the following facts:

R E C I T A L S

WHEREAS Employee’s job as SVP, Chief Merchandising & Marketing Officer ceased effective January 5, 2011. This date will be referenced herein as Employee’s separation date and/or date of separation.

WHEREAS Employee acknowledges that in order to receive the consideration outlined in the Plan, he/she must execute this Agreement and return it to Winn-Dixie’s Legal Department, Attention: Timothy L. Williams.

WHEREAS Employee acknowledges that the benefits he/she has elected to receive by executing and returning this Agreement are in excess of those he/she would have received from Winn-Dixie if he/she had not elected to execute and return this Agreement.

WHEREAS Employee acknowledges that the benefits he/she will receive as a result of executing this Agreement are not something he/she would have been entitled absent execution of this Agreement.

WHEREAS Employee acknowledges that the benefits he/she will receive as a result of executing this Agreement will expire unless the Agreement is executed and returned to Winn-Dixie within ninety (90) days of the Employee’s separation date.

WHEREAS Employee and Winn-Dixie seek to protect Winn-Dixie against unfair competition and its investment in its workforce.

WHEREAS Employee and Winn-Dixie, each desire to settle, fully and finally, all claims, known or otherwise, that Employee could have asserted based on his/her employment relationship and the separation thereof.

THEREFORE, in consideration of the mutual promises set forth in this Agreement, Employee and Winn-Dixie agree as follows:

 

  

  

Daniel Portnoy

 

 

  

  

Winn-Dixie Stores, Inc.

 

 


General Release and Separation Agreement

Winn-Dixie Stores, Inc./Daniel Portnoy

Page 2

 

 

 

 

 

1.

Winn-Dixie Agrees

In full consideration and as material inducement for Employee’s signing of this Agreement, and agreeing to the releases and promises as provided for herein, Winn-Dixie agrees, in accordance with the Plan:

 

 

(a)

to pay Employee a minimum of Two Hundred Eighty-One Thousand Eight Hundred Seventy-Five Dollars and Ten Cents ($281,875.10) (the equivalent of twenty-six (26) weeks of Week’s Gross Pay), less normal withholding tax and FICA deductions, and up to a maximum of One Million One Hundred Twenty-Seven Thousand Five Hundred Dollars and No Cents ($1,127,500.00) (the equivalent of one hundred four (104) weeks of Week’s Gross Pay), less normal withholding tax and FICA deductions, as outlined in the Plan.

 

 

(b)

to pay Employee’s monthly COBRA premiums for the cost of continuing the health and dental benefits he/she was enrolled in on Employee’s separation date or as subsequently modified under the health and dental plan change in election rules (including any coverage for spouse and dependents) for up to twenty-four (24) months or through the date on which Participant accepts other employment or otherwise becomes ineligible to receive COBRA coverage, whichever occurs first, as outlined in the Plan.

 

 

(c)

if contacted by an employer or prospective employer of Employee, at the direction of Employee, to have its current Senior Vice President, Operations, Larry Appel, discuss Employee’s employment with Winn-Dixie.

 

 

(d)

Winn-Dixie shall indemnify Employee as provided in its by-laws in effect during Employee’s employment and provide Directors & Officers liability insurance under which Employee shall be deemed an insured for purposes of coverage for the period of Employee’s employment with Winn-Dixie to the same extent as all other Directors and Officers employed with Winn-Dixie as of Employee’s separation date. Winn-Dixie and Employee each agree to notify the other of any lawsuit or action filed against the other of which either becomes aware, or any lawsuit or action in which Employee is or will be a witness regarding any aspect of his employment with Winn-Dixie.

 

 

(e)

to not contest Employee’s entitlement to unemployment benefits, if any, he/she may be entitled to under applicable laws.

 

  

  

Daniel Portnoy

 

 

  

  

Winn-Dixie Stores, Inc.

 

 


General Release and Separation Agreement

Winn-Dixie Stores, Inc./Daniel Portnoy

Page 3

 

 

 

 

 

2.

Complete and Full General Release of All Claims

In consideration for the benefits set out more fully below, Employee, for himself/herself, his/her heirs, successors and assigns, hereby, unconditionally and forever releases and discharges Winn-Dixie and any affiliated company, parent, or subsidiary, and their past and present directors, officers, employees, representatives, successors and assigns from any and all claims, whether known or not, including but not limited to, claims, rights, or amounts for attorneys’ fees, wages, debts or damages of any kind arising out of, but not limited to, his/her hiring, employment, treatment by or separation from employment with Winn-Dixie. This Agreement applies to all claims and causes of action including, but not limited to, claims, arising under any civil rights statutes, including but not limited to the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1871, the Employee Retirement Income Security Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act of 1967, the Family Medical Leave Act, the Fair Labor Standards Act of 1938, the Rehabilitation Act of 1973, the National Labor Relations Act, the Florida Civil Rights Act of 1992, or any other local, state or federal law or regulation of whatever kind, or any theory of contract or tort based on events occurring prior to the execution of this Agreement. Furthermore, this Agreement applies to all claims and causes of action including, but not limited to, claims related to any other entitlement to severance from Winn-Dixie under any other plan or agreement. This Agreement, however, will not apply to claims for benefits to which the Employee is eligible under Winn-Dixie-sponsored pension, retirement or health insurance plans.

 

 

3.

No Other Filings

Employee represents that he/she has not filed any charges, complaints or other accusatory pleadings against Winn-Dixie or any of its officers, directors, employees or representatives based upon or arising out of any aspect of his/her employment relationship with Winn-Dixie or separation therefrom which may have accrued as of the date of the execution of this Agreement. Employee agrees that if at any time after the execution of this Agreement it is established that he/she violated the terms of this provision, Winn-Dixie shall have the right to seek appropriate relief, including, but not limited to, a permanent injunction restraining Employee from further violations. Employee further agrees that damages for any breach of this provision will be difficult to calculate and that should Employee breach this provision, Winn-Dixie shall be entitled to both stop payment of any funds owed under this Agreement and the Plan and bring legal action against Employee in a court of competent jurisdiction for each such breach. Upon the entry of any judgment finding such a breach, Winn-Dixie shall also be entitled to recover forty percent (40%) of all payments made to Employee or on his/her behalf as outlined in the Plan as liquidated damages for each such breach. Employee further agrees that with respect to the claims he/she is waiving, he/she is waiving his/her right to recover money or other relief in any action that might be brought on his/her behalf by any other person or entity including, but not limited to, the United States Equal Employment Opportunity Commission, the Department of Labor, or any other (U.S. or foreign) federal, state or local governmental agency or department.

 

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