| AMENDED AND RESTATED
EMPLOYMENT AGREEMENT |
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| THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT, is entered into on
July 14, 2014 and effective January 1, 2014,
by and between WEIS MARKETS, INC., a Pennsylvania
corporation (the "Company"), and Jonathan H. Weis
(the "Executive"), and amends and restates the
Employment Agreement dated November 3, 2011 between
the parties. |
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| WITNESSETH
THAT: |
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| WHEREAS, the
Executive has served as Vice Chairman and Secretary
of the Company since 2004, and currently serves as
Vice Chairman, President and Chief Executive
Officer, and the Executive desires to continue to
be employed to serve in such capacity or
capacities, on the terms and conditions herein set
forth; |
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| NOW, THEREFORE,
in consideration of the mutual covenants herein
contained, the parties hereto, each intending to be
legally bound hereby, agree as follows: |
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| 1.
Employment; Prior Agreement. The Company agrees to
employ the Executive, and the Executive agrees to be
employed by the Company, for the Term provided in
Section 3(a) below and upon the other terms and
conditions hereinafter provided. The Executive hereby
represents and warrants that he has the legal capacity
to execute and perform this Agreement, that it is a
valid and binding agreement, enforceable against him
according to its terms, and that its execution and
performance by him do not violate the terms of any
existing agreement or understanding to which the
Executive is a party. |
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| 2.
Position and Responsibilities. During the Term, the
Executive agrees to serve as Vice Chairman, President
and Chief Executive Officer ("CEO") of the Company or
in such other executive capacity or capacities for the
Company and/or any of its subsidiaries or affiliated
companies as the Board of Directors of the Company (the
"Board") or the Chairman of the Board (the "Chairman")
may from time to time determine. The Executive also
agrees to serve, if elected and without additional
compensation, as a member of the Board and/or as an
officer and director of any other parent, subsidiary or
affiliate of the Company. |
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| 3.
Term and Duties. |
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(a) |
Term of
Agreement. The term of the Executive's
employment under this amended and restated
Agreement shall commence on January 1, 2014 and
shall continue thereafter through December 31, 2016
(the "Term"). |
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(b) |
Duties. During
the Term, and except for illness or incapacity and
reasonable vacation periods of not less than four
weeks in any calendar year (or such greater periods
as shall be consistent with the Company's policies
for other key executives), the Executive shall
devote a substantial majority of his business time,
attention, skill and efforts to the business and
affairs of the Company and its subsidiaries and
affiliates, and shall perform and discharge well
and faithfully the duties which may be assigned to
him from time to time by the Board and the
Chairman; provided, however, that nothing in
this Agreement shall preclude the Executive from
devoting time during reasonable periods required
for: |
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(i) |
Delivering lectures and
fulfilling speaking engagements; |
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(ii) |
Engaging in charitable
and community activities; and |
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(iii) |
Investing his personal
assets in businesses in which his participation is
solely that of an investor in such form or manner
as will not violate Section 7 below or require any
services on the part of the Executive in the
operation or the affairs of such business,
provided, however, that such activities do
not materially affect or interfere with the
performance of the Executive's duties and
obligations to the Company. |
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| 4.
Compensation. For all services rendered by the
Executive in any capacity required hereunder during the
Term, including, without limitation, services as an
executive officer, director, or member of any committee
of the Company or any subsidiary, affiliate or division
thereof, the Executive shall be compensated as set
forth below: |
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(a) |
Base Salary. The
Executive shall be paid a fixed salary ("Base
Salary") of $860,000 per annum as of the effective
date of this Agreement. The Base Salary amount is
subject to periodic review and adjustment by the
Board or its Executive Compensation Committee but
shall not be less than $860,000 per annum during
the Term of this Agreement. Base Salary shall be
payable in accordance with the customary payroll
practices of the Company, but in no event less
frequently than monthly. |
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(b) |
Bonus. The
Executive shall be eligible to participate in such
annual or long-term bonus or incentive plans
maintained by the Company for its senior
executives, as determined from time to time by the
Board or its Executive Compensation Committee. The
basis for the Executive's participation shall be
the same as for other similarly situated
executives, and it is understood that awards under
any such plan may be discretionary. |
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(c) |
CEO Supplemental
Long-Term Cash Incentive. The Executive may
earn a supplemental long-term cash incentive under
the Company's Amended and Restated Chief Executive
Officer Incentive Award Plan (the "Plan") effective
January 1, 2014, as amended from time to
time by the Board. The supplemental cash incentive
is contingent upon the Executive's continued
employment with the Company for the period set
forth in the Plan. |
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(d) |
Equity-Based
Compensation. The Executive shall be eligible
to participate in, and to be granted stock options,
stock appreciation rights or other equity-based
awards under any stock option, stock ownership,
stock incentive or other equity-based compensations
plans maintained by the Company for its senior
executives, as determined from time to time by the
Board or its Executive Compensation Committee. The
basis for the Executive's participation shall be
the same as for other similarly situated
executives, and it is understood that awards under
any such plan may be discretionary. |
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(e) |
Additional
Benefits. Except as modified by this Agreement,
as determined from time to time by the Board or its
Executive Compensation Committee, the Executive
shall be entitled to participate in all
compensation or employee benefit plans or programs,
and to receive all benefits, perquisites and
emoluments, for which any member of senior
management at the Company is eligible under any
plan or program now or hereafter established and
maintained by the Company for senior officers, to
the extent permissible under the general terms and
provisions of such plans or programs and in
accordance with the provisions thereof, including
group hospitalization, health, dental care, senior
executive life or other life insurance, travel or
accident insurance, disability plans, tax-qualified
or non-qualified pension, savings, thrift and
profit-sharing plans, sick-leave plans, and
executive contingent compensation plans, including,
without limitation, capital accumulation programs
and stock purchase plans. Notwithstanding the
foregoing, the Executive acknowledges and agrees
that the severance payments provided in certain
circumstances under this Agreement are in lieu of
any rights which the Executive might otherwise have
under any and all other displacement, separation or
severance plans or programs of the Company, and the
Executive hereby waives all rights to participate
in any of such plans or programs in the event of
the termination of his employment during the
Term. |
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(f) |
Life Insurance.
The Company shall provide a term life insurance
policy to the Executive insuring the life of the
Executive with a death benefit of $1,000,000. The
Executive shall be required to provide any
reasonable information or testing as may be
necessary to obtain such policy. |
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(g) |
Recoupment Policy
(Clawback). Incentive based awards under this
Agreement (including under Sections 4 (b), (c), and
(d)) may be cancelled without payment and/or a
demand for repayment of any incentive based awards
may be made upon Executive pursuant to the
provisions set forth below. If the Board or a
committee of the Board determines that the
Executive has been incompetent or negligent in the
performance of his or her duties or has engaged in
fraud or willful misconduct, in each case in a
manner that has caused or otherwise contributed to
the need for a material restatement of the
Company's financial results, the Board will review
all performance-based compensation awarded to or
earned by the Executive on the basis of performance
during fiscal periods affected by the restatement.
If, in the Board's view, the performance-based
compensation would have been lower if it had been
based on the restated results, the Board and the
Company will, to the extent permitted by applicable
law, seek recoupment from the Executive of any
portion of such performance-based compensation as
it deems appropriate after a review of all relevant
facts and circumstances. Generally, this review
would include consideration of: |
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the Board's view of
what performance-based compensation would have been
awarded to or earned by the Executive had the
financial statements been properly
reported; |
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the nature of the
events that led to the restatement; |
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the conduct of the
Executive in connection with the events that led to
the restatement; |
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whether the assertion
of a claim against the Executive could prejudice
the Company's overall interests and whether other
penalties or punishments are being imposed on the
Executive, including by third parties such as
regulators or other authorities; and |
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any other facts and
circumstances that the Executive deems
relevant. |
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| 5.
Business Expenses. The Company shall pay or
reimburse the Executive for all reasonable travel and
other expenses incurred by the Executive (and his
spouse where there is a legitimate business reason for
his spouse to accompany him) in connection with the
performance of his duties and obligations under this
Agreement, subject to the Executive's presentation of
appropriate vouchers in accordance with such policies
and procedures as the Company from time to time
establish for senior officers. All reimbursements
provided under this Agreement shall be made or provided
in accordance with the requirements of Internal Revenue
Code (the "Code") Section 409A, including, where
applicable, the requirement that (i) any reimbursement
is for expenses incurred during the Executive's
lifetime (or during the shorter Term specified in this
Agreement), (ii) the amount of expenses eligible for
reimbursement during a calendar year may not affect the
expenses eligible for reimbursement in any other
calendar year, (iii) the reimbursement of an eligible
expense will be made on or before the last day of the
calendar year following the year in which the expense
is incurred, and (iv) the right to reimbursement is not
subject to liquidation or exchange for another
benefit. |
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| 6.
Effect of Termination of Employment; Effect of
Disability. |
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(a) |
Without Cause
Termination or Termination of the Executive for
Good Reason. Subject to the provisions of
Section 7 below, in the event the Executive's
employment hereunder terminates due to either a
Without Cause Termination (as defined in Section
6(e)(iii) or a termination by the Executive for
Good Reason (as defined in Section
6(e)(ii)): |
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(i) |
Earned but unpaid Base
Salary as of the Date of Termination (as defined in
Section 13(b)) and any earned but unpaid bonuses
for prior years under Section 4(b) (but not
under Section 4(c)) (collectively, the
"Accrued Obligations"), shall be payable in full on
their regularly scheduled payment dates, and the
Company shall, as liquidated damages or severance
pay, or both: |
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(A) |
Continue to pay the
Executive's Base Salary, as in effect at the Date
of Termination, from the Date of Termination until
the end of the Term, at the same time Base Salary
would otherwise be payable hereunder,
and |
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(B) |
Pay to the Executive
for the year of termination and for each subsequent
calendar year or portion thereof during the
remainder of the Term, an amount (prorated in the
case of any partial year) equal to the highest
annual incentive bonus under Section 4(b) (but
not under Section 4(c)) received by the
Executive for any year in the two years preceding
the Date of Termination, such payments to be made
at the normal times for payment of bonuses under
the Company's annual incentive bonus plan (as
described in Section 4(b)) as in effect at the
Date of Termination (the "Bonus Plan"). |
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Notwithstanding
anything to the contrary in this Agreement, if
Executive is a "specified employee" within the
meaning of Code Section 409A at the time of
Executive's termination (other than due to death),
then the continuing payments of deferred
compensation, if any, that are payable within the
first six (6) months following Executive's
separation from service, will become payable on the
first payroll date that occurs on or after the
first day of the seventh (7) month following the
date of Executive's separation from service. All
subsequent continuing payments, if any, will be
payable in accordance with the payment schedule
applicable to each payment or benefit.
Notwithstanding anything herein to the contrary, if
Executive dies following Executive's separation
from service, but before the six (6) month
anniversary of the separation from service, then
any payments delayed in accordance with this
paragraph will be payable in a lump sum as soon as
administratively practicable after and within 90
days of the date of Executive's death and all other
continuing payments will be payable in accordance
with the payment schedule applicable to each
payment or benefit. It is
intended that to the extent possible none of the
severance payments under this Agreement will
constitute deferred compensation but rather will be
exempt from Section 409A as a payment that
would fall within the "short-term deferral period"
or under the separation pay plan exception from
Section 409A. |
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(b) |
Disability. In
the event of the Executive's Disability, the
Company may, by giving a Notice of Disability as
provided in Section 13(c), remove the Executive
from active employment and in that event shall
provide the Executive with the same payments and
benefits as those provided in Section 6(a), except
that: |
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(i) |
Base Salary payments
under Section 6(a)(i)(A) shall be at the rate 50%
of the Executive's Base Salary as in effect at the
Date of Disability; |
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(ii) |
In lieu of the bonus
payments provided in Section 6(a)(i)(B), the
Executive shall receive, at the same time as bonus
payments for the year of Disability would otherwise
be made under the Bonus Plan, a prorated bonus for
the year of Disability only equal to the amount
determined by the Company in good faith (which
determination shall be final and conclusive) to be
the amount of the bonus award the Executive would
have received if he had been employed throughout
the bonus year, prorated on a daily basis as of the
Date of Disability; and |
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(iii) |
Except for Accrued
Obligations, Base Salary payments shall be offset
by any amounts otherwise payable to the Executive
under the Company's disability program generally
available to other employees. |
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(c) |
Death. In the
event the Executive's employment hereunder
terminates due to death: |
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(i) |
Accrued Obligations as
of the date of death shall be payable in
full; |
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(ii) |
From the date of the
Executive's death until the end of the Term, the
Company shall, at the same times Base Salary would
otherwise be payable hereunder, make payments at
the rate of 50% of the Executive's Base Salary in
effect at the date of death to (A) the Executive's
spouse at the date of his death, should she survive
him and (B) following the death of the Executive's
spouse or should she not survive him, to the
Executive's estate. |
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(d) |
Other Termination of
Employment. In the event the Executive's
employment hereunder terminates due to a
Termination for Cause or the Executive terminates
employment with the Company other than for Good
Reason, Disability, retirement under established
retirement policies of the Company, or death,
Accrued Obligations and vested benefits as of the
Date of Termination shall be payable in full on
their regularly scheduled payment dates. No other
payments shall be made, or benefits provided, by
the Company except for benefits which have already
become vested under the terms of employee benefit
programs maintained by the Company or its
affiliates for its employees generally as provided
in Section 10. The foregoing is not intended to
limit the remedies available to the Company under
this Agreement. |
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(e) |
Definitions. For
purposes of this Agreement, the following terms,
when capitalized, shall have the following meanings
unless the context otherwise requires: |
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(i) |
"Termination for Cause"
means, to the maximum extent permitted by
applicable law, a termination of the Executive's
employment by the Company by a vote of the majority
of the Board members then in office, because the
Executive (a) has been convicted of, or has entered
a plea of nolo contendere to, a criminal
offense involving moral turpitude, or (b) has
willfully continued to fail to substantially
perform his duties with the Company (other than any
such failure resulting from the Executive's
incapacity due to physical or mental illness or any
such failure subsequent to the Executive being
delivered a Notice of Termination without Cause by
the Company or delivering a Notice of Termination
for Good Reason to the Company) after a written
demand for substantial performance is delivered to
the Executive by the Board which specifically
identifies the manner in which the Board believes
that the Executive has not substantially performed
his duties or (c) has committed an improper action
resulting in personal enrichment at the expense of
the Company or (d) has engaged in illegal or gross
misconduct that is materially and demonstrably
injurious to the Company, or (e) has violated the
representations made in Section 1 above, or the
provisions of Section 7 below; provided,
however that the Board has given the Executive
advance notice of such Termination for Cause
including the reasons therefor, together with a
reasonable opportunity for the Executive to appear
with counsel before the Board and to reply to such
notice. |
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(ii) |
a "Termination by the
Executive for 'Good Reason'" shall mean a
termination of his employment by the Executive by a
Notice of Termination given at any time due
to: |
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(A) |
any material reduction
without the consent of the Executive in the
Executive's salary below the amount then provided
for under Section 4(a) hereof; or |
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(B) |
failure of the Company
or its successor to fulfill its obligations under
this Agreement in any material respect. |
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Executive may not
resign for Good Reason without first providing the
Company with written notice within thirty (30) days
of the first occurrence of the condition that
Executive believes constitutes Good Reason
specifically identifying the acts or omissions
constituting the grounds for Good Reason and
providing a cure period of not less than ten (10)
days following the date of such notice. The
Executive's right to terminate employment for Good
Reason shall not be affected by the Executive's
incapacities due to mental or physical illness and
the Executive's continued employment shall not
constitute consent to, or a waiver of rights with
respect to, any event or condition constituting
Good Reason; provided, however, that the Executive
must provide notice of termination of employment
within 180 days following the Executive's knowledge
of an event constituting Good Reason or such event
shall not constitute Good Reason under this
Agreement. |
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(iii) |
"Without Cause
Termination" means a termination of the Executive's
employment by the Company other than due to
Disability or expiration of the Term and other than
a Termination for Cause. |
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(iv) |
"Disability" for
purposes of this Agreement shall have the meaning
set forth in Code Section 409(a)(2)(C) and the
regulations thereunder. |
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(v) |
The "Date of
Termination" and "Date of Disability" shall have
the meanings ascribed to them in Section 13. To the
fullest extent permitted by applicable law and the
general terms of the underlying benefit plans, to
the extent this Agreement requires the payment of
Base Salary and/or the provision of coverages and
benefits subsequent to the Date of Termination or
Date of Disability, the Executive's Date of
Termination or Date of Disability, as applicable,
shall not be treated as a termination of employment
(a "Benefit Plan Termination Date") from the
Company for purposes of determining the Executive's
rights, responsibilities and tax treatment under
any and all employee pension, welfare and fringe
benefit plans maintained by the Company. Rather,
the Benefit Plan Termination Date shall be the day
following the last day for which any Base Salary
and/or coverages and benefits are required to be
provided by this Agreement. |
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| 7.
Other Duties of the Executive During and After
Term. |
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(a) |
Confidential
Information. The Executive recognizes and
acknowledges that certain information pertaining to
the affairs, business, suppliers, or customers of
the Company or any of its subsidiaries of
affiliates (any or all of such entities hereinafter
referred to as the "Business"), as such information
may exist from time to time, is confidential
information and is a unique and valuable asset of
the Business, access to and knowledge of which are
essential to the performance of his duties under
this Agreement. The Executive shall not, through
the end of the Term or at any time thereafter,
except to the extent reasonably necessary in the
performance of his duties under this Agreement,
divulge to any person, firm, association,
corporation or governmental agency, any information
concerning the affairs, business, suppliers, or
customers of the Business (except such information
as is required by law to be divulged to a
governmental agency or pursuant to lawful process
or such information which is or shall become part
of the public realm through no fault of the
Executive), or make use of any such information for
his own purposes or for the benefit of any person,
firm, association or corporation (except the
Business) and shall use his reasonable best efforts
to prevent the disclosure of any such information
by others. All records and documents relating to
the Business, whether made by the Executive or
otherwise coming into his possession are, shall be,
and shall remain the property of the Business. No
copies thereof shall be made which are not retained
by the Business, and the Executive agrees, on any
termination of his employment, or on demand of the
Company, to deliver the same to the
Company. |
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(b) |
Non-Competition.
During his employment by the Company, whether
during or after the Term, and for a period of four
years following the termination of his employment
for any reason except for a Without Cause
Termination or termination by the Executive for
Good Reason, the Executive shall not, without
express prior written approval by order of the
Board, directly or indirectly, engage in, whether
as an officer, director, employee, consultant,
agent, partner, joint venture, proprietor or
otherwise, become interested in (other than as a
shareholder owning not more than 1% of the
outstanding shares of any class of securities
registered under Section 12 of the Securities
Exchange Act of 1934) or assist any business which
(i) is in competition with the Company or any of
its affiliates in the retail grocery business or
(A) during his employment, in any other business in
which the Company or any of its subsidiaries is
then engaged or proposes to engage or (B) following
the termination of his employment, in any other
business which during the 12 months preceding the
Executive's Date of Termination accounted for more
than 2% of the Company's consolidated revenues and
(ii) engages in any such business in any county in
which the Company then engages in such business or
any county contiguous thereto. |
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(c) |
Non-Interference. During his employment
with the Company and until four years after the
termination of the Executive's employment, whether
during or after the Term and notwithstanding the
cause of termination, the Executive shall not (i)
hire or employ, directly or indirectly through any
enterprise with which he is associated, any
employee of the Company or any of its affiliates or
(ii) recruit, solicit or induce (or in any way
assist another person or enterprise in recruiting,
soliciting or inducing) any such employee or any
consultant, vendor or supplier of the Company or
any of its affiliates to terminate or reduce such
person's employment, consulting or other
relationship with the Company or any of its
affiliates. |
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(d) |
Remedies. The
Company's obligation to make payments or provide
for or increase any benefits under this Agreement
(except to the extent previously vested) shall
cease upon any violation of the provisions of this
Section 7: provided, however, that the
Executive shall first have the right to appear
before the Board with counsel and that such
cessation of payments or benefits shall require a
vote of a majority of the Board members then in
office. In addition, in the event of a violation by
the Executive of the provisions of this Section 7,
the Company shall be entitled, if it shall so
elect, to institute legal proceedings to obtain
damages for any such breach, and/or to enforce the
specific performance by the Executive of this
Section 7 and to enjoin the Executive from any
further violation, and may exercise such remedies
cumulatively or in conjunction with such other
remedies as may be available to the Company at law
or in equity. The Executive acknowledges, however,
that the remedies at law for any breach by him of
the provisions of this Section 7 would be
inadequate and agrees that the Company shall be
entitled to injunctive relief against him in the
event of any such breach. |
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(e) |
Survival;
Authorization to Modify Restrictions. The
covenants of the Executive contained in this
Section 7 shall survive any termination of the
Executive's employment for the periods stated
herein, whether during or after the Term and,
except as otherwise provided in this Section 7,
regardless of the reason for such termination. The
Executive represents that his experience and
capabilities are such that the enforcement of the
provisions of this Section 7 will not prevent him
from earning his livelihood, and acknowledges that
it would cause the Company serious and irreparable
injury and cost if the Executive were to use his
ability and knowledge in competition with the
Company or to otherwise breach the obligations
contained in this Section 7. Accordingly, it is the
intention of the parties that the provisions of
this Section 7 shall be enforceable to the fullest
extent permissible under applicable law, but that
the unenforceability (or modification to conform to
such law) of any provision or provisions hereof
shall not render unenforceable, or impair, the
remainder thereof. If any provision or provisions
hereof shall be deemed invalid or unenforceable,
either in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary,
the offending provision or provisions and to alter
the bounds thereof to the extent required in order
to render it valid and enforceable. |
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| 8.
Resolution of Disputes. Except as otherwise
provided in Section 7(d) hereof, any dispute or
controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration
in Sunbury, Pennsylvania, by three arbitrators in
accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on
the arbitrators' award in any court having
jurisdiction. In the event of any arbitration,
litigation or other proceeding between the Company and
the Executive with respect to the subject matter of
this Agreement and the enforcement of rights hereunder,
the Company shall reimburse the Executive for his
reasonable costs and expenses relating to such
arbitration, litigation or other proceeding, including
attorneys' fees and expenses, to the extent that such
arbitration, litigation or other proceeding results in
any: (i) settlement requiring the Company to make a
payment, continue to make payments or provide any other
benefit to the Executive; or (ii) judgment, order or
award against the Company in favor of the Executive or
his spouse, legal representative or heirs, unless such
judgment, order or award is subsequently reversed on
appeal or in a collateral proceeding. At the request of
the Executive, costs and expenses (including attorneys'
fees) incurred in connection with any arbitration,
litigation or other proceeding referred to in this
Section shall be paid by the Company in advance of the
final disposition of the arbitration, litigation or
other proceeding upon receipt of an undertaking by or
on behalf of the Executive to repay the amounts
advanced if it is ultimately determined that he is not
entitled to reimbursement of such costs and expenses by
the Company a set forth in this Section. |
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| 9.
Full Settlement; No Mitigation; Non-Exclusivity of
Benefits. The Company's obligation to make any
payment provided for in this Agreement and otherwise to
perform its obligations hereunder shall be in lieu and
in full settlement of all other severance payments to
the Executive under any other severance plan,
arrangement or agreement of the Company and its
affiliates, and in full settlement of any and all
claims or rights of the Executive for severance,
separation and/or salary continuation payments
resulting from the termination of his employment. In no
event shall the Executive be obligated to seek other
employment or to take other action by way of mitigation
of the amounts payable to the Executive under any of
the provisions of this Agreement, and except as
specifically provided herein, such amounts shall not be
reduced whether or not the Executive obtains other
employment. Except as provided above in this Section 9,
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 affiliates for which the
Executive may qualify, nor except as otherwise
specifically provided in this Agreement, 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 affiliates, including without
limitation any stock option agreement. Amounts or
benefits which are vested benefits or which the
Executive is otherwise entitled to receive under any
such plan, program, policy, practice, contract or
agreement prior to, at or subsequent to any Date of
Termination or Date of Disability shall be paid or
provided in accordance with the terms of such plan,
program policy, practice, contract or agreement except
as explicitly modified by this Agreement. |
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| 10.
Employment and Payments by Affiliates. Except as
herein otherwise specifically provided, references in
this Agreement to employment by the Company shall
include employment by affiliates of the Company, and
the obligation of the Company to make any payment or
provide any benefit to the Executive hereunder shall be
deemed satisfied to the extent that such payment is
made or such benefit is provided by any affiliate of
the Company. |
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| 11.
Withholding Taxes. The Company may directly or
indirectly withhold from any payments made under this
Agreement all Federal, state, city or other taxes as
shall be required pursuant to any law or governmental
regulation or ruling. |
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| 12.
Consolidation, Merger, or Sale of Assets. Nothing
in this Agreement shall preclude the Company from
consolidating or merging into or with, or transferring
all or substantially all of its assets to, another
corporation or entity which assumes this Agreement and
all obligations and undertakings of the Company
hereunder. Upon such a consolidation, merger or
transfer of assets and assumption, the term, "Company"
as used herein shall mean such other corporation or
entity, and this Agreement shall continue in full force
and effect. |
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| 13.
Notices. |
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(a) |
General. All
notices, requests, demands and other communications
required or permitted hereunder shall be given in
writing and shall be deemed to have been duly given
when delivered or 5 days after being deposited in
the United States mail, certified and return
receipt requested, postage prepaid, addressed as
follows: |
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(i) |
To the
Company: |
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Weis Markets,
Inc. |
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1000 S. Second
Street |
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P.O. Box
471 |
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Sunbury, PA
17801 |
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Attention: Corporate
Secretary |
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(ii) |
To the
Executive: |
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Jonathan H.
Weis |
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1000 S. Second
Street |
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P.O. Box
471 |
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Sunbury, PA
17801 |
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| Or to such other
address as the addressee party shall have
previously specified in writing to the
other. |
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(b) |
Notice of
Termination. Except in the case of death of the
Executive, any termination of the Executive's
employment hereunder, whether by the Executive or
the Company, shall be effected only by a written
notice given to the other party in accordance with
this Section 13 (a "Notice of Termination"). Any
Notice of Termination shall (i) indicate the
specific termination provision in Section 6 relied
upon, (ii) in the case of a termination by the
Company for Cause or by the Executive for Good
Reason, set forth in reasonable detail the facts
and circumstances claimed to provide a basis for
such termination and (iii) specify the effective
date of such termination of employment (the "Date
of Termination"), which shall not be less than 15
days nor more than 60 days after such notice is
given. Notwithstanding anything to the contrary in
this Agreement, no severance pay or benefits to be
paid or provided to Executive, if any, pursuant to
this Agreement that, when considered together with
any other severance payments or separation
benefits, are considered deferred compensation
under Section 409A will be paid or otherwise
provided until Executive has a "separation from
service" within the meaning of Section 409A. The
failure of the Executive or the Company to set
forth in any Notice of Termination any fact or
circumstance which contributes to a showing of
Cause or Good Reason 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. |
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(c) |
Notice of
Disability. Any finding of Disability by the
Company shall be affected only by a written notice
given to the Executive in accordance with this
Section 13 (a "Notice of Disability"). Any Notice
of Disability shall (i) set forth in reasonable
detail the facts and circumstances claimed to
provide a basis for such finding of Disability and
(ii) specify an effective date (the "Date of
Disability''), which shall not be less than 10 days
after such notice is given. The failure of the
Company to set forth in any Notice of Disability
any fact or circumstance which contributes to a
showing of Disability shall not waive any right of
the Company hereunder or preclude the Company from
asserting such fact or circumstance in enforcing
the Company's rights hereunder. |
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| 14.
Source of Payments. Subject to Section 10 hereof,
all payments provided for under this Agreement shall be
paid in cash from the general funds of the Company. The
Company shall not be required to establish a special or
separate fund or other segregation of assets to assure
such payments, and, if the Company shall make any
investments to aid it in meeting its obligations
hereunder, the Executive shall have no right, title or
interest whatever in or to any such investments except
as may otherwise be expressly provided in a separate
written instrument relating to such investments.
Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary
relationship, between the Company and the Executive or
any other person. To the extent that any person
acquires a right to receive payments from the Company,
hereunder, such right shall be no greater than the
right of an unsecured creditor. |
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| 15.
Binding Agreement. This Agreement shall be binding
upon, and shall inure to the benefit of, the Executive
and the Company and, as permitted by this Agreement,
their respective successors, assigns, heirs,
beneficiaries and representatives. |
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| 16.
Governing Law. The validity, interpretation,
performance and enforcement of this Agreement shall be
governed exclusively by the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts
of laws thereof. |
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| 17.
Counterparts; Headings. This Agreement may be
executed in counterparts, each of which, when executed,
shall be deemed to be an original and all of which
together shall be deemed to be one and the same
instrument. The underlined Section headings contained
in this Agreement are for convenience of reference only
and shall not affect the interpretation or construction
of any provision hereof. |
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| IN WITNESS THEREOF, The
Company has caused this Agreement to be executed by
its Officer thereunto duly authorized, and the
Executive has signed this Agreement, all of this
date first above. |
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WEIS MARKETS,
INC. |
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By: /s/ Scott
Frost |
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Name: Scott
Frost |
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Title: Chief Financial
Officer |
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/s/ Jonathan H.
Weis |
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Jonathan H.
Weis |
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