-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TOaLVazM4BNj0FRyKi9IfqA+ubvOADqs+DR0S0/BzDwDoe/g4sonCtwAwNHUnyDs Q4Y7HSz8zmRQKHrbBIymFQ== 0000948688-99-000003.txt : 19990405 0000948688-99-000003.hdr.sgml : 19990405 ACCESSION NUMBER: 0000948688-99-000003 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990102 FILED AS OF DATE: 19990402 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JITNEY JUNGLE STORES OF AMERICA INC /MI/ CENTRAL INDEX KEY: 0001005408 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 640280539 STATE OF INCORPORATION: MI FISCAL YEAR END: 0103 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 033-80833 FILM NUMBER: 99586715 BUSINESS ADDRESS: STREET 1: 3800 I 55 NORTH STREET 2: STE 200 CITY: JACKSON STATE: MS ZIP: 39211 BUSINESS PHONE: 6019658625 MAIL ADDRESS: STREET 1: JITNEY JUNGLE STORES OF AMERICA INC STREET 2: 3800 I 55 NORTH CITY: JACKSON STATE: MS ZIP: 39211 FORMER COMPANY: FORMER CONFORMED NAME: JJ ACQUISITIONS CORP DATE OF NAME CHANGE: 19951227 10-K 1 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). 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. 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 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 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, 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 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 $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. Item 2. Properties ___________________ The following table recaps store data for fiscal 1998, 1997 stub, 1997 and 1996:
Fiscal __________________________ 1998 1997 1997 1996 stub ______ ______ ______ ______ 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 ====== ====== ====== ======
All of the Company's store properties are leased, with the exception of one store. These leases generally 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.
Function Square Feet ________ ___________ 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 =========
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 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. 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. 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.
Directors and Executive Officers Name Age Position 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)
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
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"). * 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) 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) 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) *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.
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 ___________________________ ____ ______ _____ __________ ________ _______ ________ Michael E. Julian, Chairman 1998 $450,000 $450,000 $7,089 $49,692 and Chief Executive Officer 97stub 253,846 248,077 1,353 13,100 263 1997 57,692 75,000 170,000 Ronald E. Johnson, President 1998 400,000 400,000 56,350 2,030 and Chief Operating Officer 97stub 30,769 30,769 10,400 W.H. Holman, Jr., Former Chairman 1998 350,000 2,778 18,556 Current Chairman Emeritus 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 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 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
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. Represents number of shares of securities granted by stock option in applicable periods. 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. 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. 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. Consists of fees for consulting services provided to the Company by Mr. Julian prior to his employment with the Company as Chief Executive Officer. Consists of premiums for group term life insurance. Consists of $14,700 in premiums for group term life insurance and $3,856 in Company contributions under the 401(k) Plan. Consists of premiums for group term life insurance. Consists of $1,045 in premiums for group term life insurance and $1,683 in Company contributions under the 401(k) Plan. Consists of $871 in premiums for group term life insurance and $5,265 in Company contributions under the 401(k) Plan. STOCK OPTION PLAN The Company has in effect an employee stock option plan pursuant to which options to purchase Common Stock of the Company are granted to certain executives and key officers of the Company. There were no option grants during the 1998 fiscal year. Aggregated Exercised Options and Fiscal Year-End Option Values The following table summarizes the number and value of all unexercised options held by the aforementioned executive officers at January 2, 1999. There were no options granted in Fiscal 1998.
Value of Unexercised Shares In-th-Money Acquired on Options Options at Exercised Exercisable at Fiscal Year End Name Options Value Realized Fiscal Year End ($)(FN1) ____ ___________ ______________ _______________ _______________ exercisable/ exercisable/ unexercisable unexercisable Michael E. Julian ---- ---- 4366.67/8733.34 224,883.50/ , 449,767.01 Ronald E. Johnson ---- ---- 3466.67/6933.34 , 0/0 R. Barry Cannada ---- ---- 1795/3590 , 0/0 Stephen R. Harmon ---- ---- 400/800 0/0 David R. Black ---- ---- 566.67/283.33 34,850.20/ 17,424.79 W. H. Holman, Jr. ---- ---- ----/---- 0/0 ____________________
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. 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. Shares fully vest (a) upon the initial public offering, or (b) change of control, subject to shareholder approval. 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 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. 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 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.
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 _________________ ________________ _______________ _______________ _______________ Bruckmann, Rosser, Sherrill & Co., L.P. 353,750/83.18% ---- ---- 75,508/75.60% 126 East 56th Street New York, NY 10022 W. H. Holman, Jr. 29,699/6.98% ---- 21,516/7.84% 4,742/4.75% Jitney-Jungle Stores of America, Inc. P. O. Box 3409 Jackson, MS 39207 DLJ Merchant ---- ---- 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/ * 1,252/1.25% Bruce C. Bruckmann 353,750/83.18% ---- ---- 75,508/75.60% Harold O. Rosser, II 353,750/83.18% ---- ---- 75,508/75.60% Stephen C. Sherrill 353,750/83.18% ---- ---- 75,508/75.60% 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 406,108/95.49% ---- 21,530/7.84% 97,705/97.82%
*Owns less than 1% of the total outstanding Common Stock, Class B Preferred Stock and Class C Preferred Stock. 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. Includes 10,000 shares of common stock owned directly and 19,699 shares to which Mr. Holman possesses sole voting power. 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. 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. Includes 6,605 shares of common stock owned directly and 347,145 shares to which BRS possesses sole voting power. Includes 1,327 shares of common stock owned directly and 352,383 shares to which BRS possesses sole voting power. Includes 6,812 shares of common stock owned directly and 349,327 shares to which BRS possesses sole voting power. 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. 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). *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). *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). *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. *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 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 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). *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. 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 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.
Signatures Position Date /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)
Exhibit 21.1 SUBSIDIARIES OF JITNEY-JUNGLE STORES OF AMERICA, INC.
Percentage of Voting Securities Jurisdiction of Owned by Name Incorporation Registrant ______________________________________ _______________ __________ 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%
Exhibit 21.1 SUBSIDIARIES OF JITNEY-JUNGLE STORES OF AMERICA, INC. SUBSIDIARIES OF MCCARTY-HOLMAN CO., INC.
Jurisdiction of Name Incorporation __________________________ _______________ Pump and Save, Inc. Mississippi
Exhibit 21.1 SUBSIDIARIES OF JITNEY-JUNGLE STORES OF AMERICA, INC. SUBSIDIARIES OF DELCHAMPS, INC.
Jurisdiction of Name Incorporation __________________________ _______________ Supermarket Cigarette Sales, Inc. Louisiana
EX-4 2 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. 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: 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 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. 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. 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, 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. 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 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] 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 EX-10 3 EXHIBIT 10.17 EMPLOYMENT AGREEMENT This Employment Agreement dated effective as of February 23, 1997, is made and entered into by and between Jitney-Jungle Stores of America, Inc., a Mississippi corporation (the "Company"), and Michael E. Julian (the "Executive"). RECITALS The Company desires to employ the Executive in the business operated by the Company, according to the terms, covenants and conditions hereinafter set forth. NOW, THEREFORE, the Company and the Executive hereto agree as follows: 1. Employment and Duties. Subject to the terms hereof, the Company employs Executive as Chief Executive Officer of the Company and in such capacities with its affiliates and subsidiaries as the Company shall designate, with full authority to manage the day-to-day business of the Company, subject only to the direction of the Company's Board of Directors. Executive accepts such employment and agrees to devote substantially his entire professional time, attention and energies to the business of the Company and to perform such additional responsibilities and duties consistent with his position as provided in the Bylaws and as may be assigned to him from time to time by the Board of Directors. Executive shall work at the principal office of the Company located in or near the Jackson, Mississippi metropolitan area or at such other location in or near the Jackson, Mississippi metropolitan area as the Board of Directors, in its discretion, may select. 2. Extent of Services. Executive shall devote substantially all his working time (during normal business hours) and attention (other than during any illness and vacations) and give his good faith efforts, skills and abilities to the management and operations of the Company; it being understood and agreed that Executive shall be permitted to manage his own personal affairs and serve as director or officer of any trade association, civic, corporate, educational or charitable organization or governmental entity, provided that Executive's service does not materially interfere with Executive's performance of his duties hereunder. Executive shall report only and directly to the Company's Board of Directors. Notwithstanding the above, the Executive shall not be required to perform any duties or responsibilities which would be likely to result in non- compliance with or violation of any applicable law or regulation. 3. Term. The initial term of this Agreement shall commence as of the effective date hereof and, unless earlier terminated pursuant to Section 8, shall continue thereafter until terminated by either party upon the giving of at least thirty (30) days' advance written notice. 4. Compensation. Executive's compensation under this Agreement shall be as follows: (a) Base Salary. Company shall pay Executive a base salary ("Base Salary") at a rate of no less than $450,000.00 per year from the date hereof. The Base Salary shall be inclusive of all compensation for any services Executive may be elected or selected to perform (i) as a member of the Board of Directors of the Company and/or any of its affiliates and subsidiaries, or (ii) as a member of any appointed committees of such Boards of Directors, including the Executive Committee. In addition, the Board of Directors of Company shall, in good faith, consider granting increases in such Base Salary based upon such factors as Executive's performance and the growth and/or profitability of the Company and those affiliates and subsidiaries that Executive is directed to serve. Executive's Base Salary shall be paid in installments in accordance with the Company's normal payment schedule for its senior management. All payments shall be subject to the deduction of payroll taxes and similar assessments as required by law. (b) Bonus. In addition to the Base Salary, Executive shall be eligible each year for a cash bonus of up to 100% of the Base Salary based upon his performance in accordance with specific quarterly or annual objectives as set forth under the Company's Supervisory Personnel Bonus Plan or such other similar plan as may be approved by the Board of Directors. 5. Fringe Benefits. (a) The Company agrees to furnish an automobile to Executive of his choice and to make such automobile available for the Executive's exclusive use during the period of his employment with the Company. All maintenance, taxes and other operating costs shall be paid by the Company, subject to appropriate withholding requirements. (b) The Company shall also make available to Executive those benefits which are made available to the executive officers of the Company as a group, which benefits currently include, without limitation, 401(k) plans, profit sharing plans, and health, dental, and disability insurance. The Company shall also acquire from Executive's previous employer and maintain that certain term life insurance policy currently outstanding for the benefit of the Employee and maintained by his previous employer. 6. Vacation. Executive shall be entitled to take three weeks of paid vacation during each fiscal year in which he is employed. Accrued but unused vacation shall be carried over only in accordance with the Company's standard policies. 7. Expense Reimbursement. In addition to the compensation and benefits provided in Sections 4, 5 and 6 hereof, the Company shall, upon receipt of appropriate documentation, reimburse Executive for his reasonable travel, lodging, entertainment, and other ordinary and necessary business expenses incurred in the course of his duties on behalf of the Company. 8. Termination of Employment. (a) Either party may terminate Executive's employment under this Agreement for any reason by giving thirty (30) days' written notice to the other party. In the event of a termination by the Company, the Company may elect that the Executive cease all services and leave the premises immediately. If the Company terminates Executive's employment without Cause pursuant to this Section 8(a) or if the Executive resigns at the request (without Cause) of the Board of Directors or terminates his employment for Good Reason (as hereinafter defined), Executive shall be paid, in addition to his Base Salary earned through the date of termination, an amount equal to that percentage of the average of Executive's bonuses for the previous three (3) years, or the period of the actual employment if shorter, determined by dividing the number of days in the year prior to the date of termination by 365 and the Company shall pay Executive as severance pay an amount equal to one year's annual Base Salary plus 100% of the average of his bonuses for the previous three (3) years, or the period of his actual employment if shorter. The Executive shall continue to receive all benefits under the health benefit plans, practices, policies and programs provided by the Company to the extent applicable generally to other peer executives of the Company for a period of the lesser of one year or until the date Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan. All cash severance compensation amounts owed pursuant to this Section 8(a) shall be paid within thirty (30) days following the effective date of Executive's termination. If Executive notifies the Company of his intention to terminate his employment pursuant to this Section 8(a) for any reason, the Company shall have the right to accelerate the date of termination to a date on or after the date of Executive's notice. The Executive's termination of employment is deemed for "Good Reason," if any of the following occurs without the Executive's written consent: (i) the assignment to Executive of any duties materially inconsistent with, or the substantial reduction of powers or functions associated with, his positions, duties, responsibilities and status with the Company (other than changes in reporting or management responsibilities required by applicable federal or state law); (ii) a reduction by the Company of Executive's salary or a material reduction in other benefits taken as a whole (except to the extent such benefits are no longer generally available to members of management of the Company), except in connection with the termination of such Executive's employment by the Company for Cause (it being understood that failure to receive bonus payments at the same level as in prior years or periods shall not be deemed to be a reduction in salary); (iii) a change in Executive's principal work location, except for required travel on the Company's business; or (iv) the willful and continuing failure by the Company substantially to perform its obligations under this Agreement; provided, however, "Good Reason" shall not be deemed to exist hereunder unless the Company shall have failed to cure any breach or nonperformance within thirty (30) days after receipt by the Company of written notice thereof from the Executive, which notice shall be given by Executive promptly and in any event within fifteen (15) days after any event that the Executive believes constitutes "Good Reason." It is hereby expressly acknowledged that the foregoing definition of "Good Reason" shall be effective solely for purposes of this Agreement and shall not be applicable to any other agreement or understanding between Executive and the Company. "Cause" when used in connection with the termination of Executive's employment with the Company, means (A) act or acts of dishonesty or conviction of a felony by Executive; provided acts of "dishonesty" shall not extend to expense account items to the extent the items involved are nominal and any error is attributable to carelessness or committed in good faith within reasonable interpretation of the Company's policies, (B) failure by the Executive in any material respect as to his obligations, services or duties hereunder, which determination shall be made by the Board of Directors of the Company acting in good faith; provided, however, "cause" shall not be deemed to exist hereunder unless the Executive shall have failed to cure any such breach or nonperformance within thirty (30) days after receipt by the Executive of written notice thereof from the Company, (C) willful and deliberate violations of Executive's obligations (whether such obligations are designated by the Board of Directors or are set forth herein) to the Company that result in material injury to the Company and (D) misappropriation or embezzlement of any funds or property of the Company by the Executive. For purposes of this definition of cause, no act or failure to act, shall be considered "willful" unless done, or omitted to be done, (1) in bad faith and without reasonable belief that the action or omission was in the best interest of the Company or, (2) in the event the direction of the Board of Directors is unclear, without the reasonable belief that the action or omission was in the best interest of the Company. In the event that there is a disagreement regarding the existence of Good Reason or Cause (other than for conviction of a felony), either party may submit such disagreement to arbitration under the rules of the American Arbitration Association or such other procedure as the parties may agree. The ruling of the arbitration shall be final and binding on both parties. The Company and the Executive shall each pay their own arbitration costs unless the arbitrator's award determines otherwise, in which case such costs, expenses, and fees shall be paid in accordance with the arbitrator's award. The arbitration proceeding shall be conducted in Atlanta, Georgia. (b) Notwithstanding anything to the contrary in Section 8(a), the Company may terminate Executive's employment, effective immediately upon written notice to Executive or on any other dates specified in such notice, for Cause. Termination by the Company of Executive's employment for any other reason shall be deemed for the purposes of this Agreement to be without Cause. (c) Executive's employment hereunder shall terminate immediately upon his death or disability except as to any right which Executive's estate or dependents may have under COBRA or any other federal or state law or which are derived independent of this Agreement by reason of his participation in any plan maintained by the Company. Executive or his estate shall be entitled to receive the accrued Base Salary and bonus through the date of termination, with the accrued bonus being computed on a per diem basis based upon the bonus which would have otherwise been payable to the Executive for the fiscal year during which the date of termination falls had the Agreement not been terminated, computed on the same basis as in effect immediately prior to the date of termination, which bonus shall be paid as and when the same would have otherwise been payable under the bonus plan had the Agreement not been terminated. For purposes of this Section 8(c), Executive shall be deemed to be disabled if, on account of illness or other incapacity, he has been unable to perform his duties for seventy-five (75) consecutive days and, in the good faith judgment of the Board of Directors, will be unable to perform his duties hereunder for a period of twelve (12) consecutive months. The Company shall continue to pay Executive his base salary and other employment benefits hereunder prior to the termination by the Board of Directors pursuant to this Section 8(c) even though Executive is disabled during that period of time. (d) Severance payments due under Section 8(a) shall be paid when due regardless whether Executive accepts employment with a new employer. (e) The Company and Executive acknowledge that they are entering into a change of control Agreement ("Control Agreement") regarding the Executive's employment upon the event of a change of control of the Company as defined in the Control Agreement (the "Change of Control"). In the event of a Change of Control the Control Agreement shall govern Executive's future employment. 9. Confidentiality. From and after the date hereof, Executive shall, and shall cause his affiliates and representatives to, keep confidential and not disclose to any other person or use for his own benefit or the benefit of any other person any trade secrets or other confidential proprietary information in his or their possession or control regarding the Company or its affiliates or their respective businesses and operations. The obligation of Executive under this Section 9 shall not apply to information which (i) is or becomes generally available to the public without breach of the commitment provided for in this Section; or (ii) is required to be disclosed by law, order or regulation of a court or tribunal or governmental authority; provided, however, that, in any such case, Executive shall notify the Company as early as reasonably practicable prior to disclosure to allow the Company to take appropriate measures to preserve the confidentiality of such information. 10. Stock Options. The Company has granted to Executive, on terms to be set forth in the separate option agreement attached hereto, options to acquire shares of capital stock of the Company. The Company agrees that upon exercise of the Option by Executive, the Company shall pay to the Executive funds equal to 20% of the difference between the exercise price and the fair market value of the exercised shares on the date of exercise. 11. Competition; Solicitation. Executive hereby agrees that during the Term he will not, unless authorized in writing to do so by the Company, (a) directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be employed or otherwise connected in any substantial manner with any business which directly or indirectly competes to a material extent with any line of business of the Company or its subsidiaries; provided, that nothing in this Agreement shall prohibit Executive from acquiring up to 2% of any class of outstanding equity securities of any corporation whose equity securities are regularly traded on a national securities exchange or in the "over-the-counter market"; (b) recruit any employee of the Company or solicit or induce, or attempt to solicit or induce, any employee of the Company to terminate his or her employment with, or otherwise cease his or her relationship with, the Company; or (c) solicit, divert or take away, or attempt to solicit, divert or to take away, the business or patronage of any of the clients, customers or accounts as prospective clients, customers or accounts, of the Company. Provided that the Company pays the Executive (i) the severance payment due to Executive in accordance with Section 8(a) hereof or, (ii) an amount equal to the Section 8(a) severance payment within thirty (30) days following the effective date of Executive's termination, the covenants contained in the preceding sentence regarding competition and solicitation shall extend for a period of one year from the termination or expiration of the Term in consideration for such payment. 12. Equitable Relief. The Company and Executive confirm that the restrictions contained in Sections hereof are, in view of the nature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Company and that any violation of any provision of Sections will result in irreparable injury to the Company. Executive hereby agrees that, in the event of any breach or threatened breach of the terms or conditions of this Agreement by Executive, the Company's remedies at law will be inadequate and, in any such event, the Company shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable relief in any court of competent jurisdiction. 13. Indemnity. The Company agrees to indemnify Executive against all costs, charges and expenses incurred or sustained by Executive in connection with any action, suit or proceeding to which he may be a party by reason of being or having been a director, officer or employee at the request of the Company to the fullest extent permitted by applicable law. 14. Amendment. This Agreement contains and its terms constitute the entire Agreement of the parties and supersedes all prior Agreements regarding employment, and may be amended only by a written document signed by both parties to this Agreement 15. Governing Law. This Agreement shall be governed by the laws of the State of Mississippi. The parties hereby irrevocably consent to, and waive any objection to the exercise of, personal jurisdiction by the state and federal courts located in the State of Mississippi with respect to any action or proceeding arising out of this Agreement. 16. Attorneys' Fees. The Company agrees to pay, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (only to the extent the Executive prevails in the outcome thereof) by the Company of the validity or enforceability of, or liability under, any provision of this Agreement (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). 17. Severability. Should any provision hereof be deemed, for any reason whatsoever, to be invalid or inoperative, that provision shall be deemed severable and shall not affect the force and validity of all other provisions of this Agreement. 18. Survival. All provisions which may reasonably be interpreted or construed to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement. 19. Notices. Any notice, request or instruction to be given hereunder shall be in writing and shall be deemed given when personally delivered or three (3) days after being sent by certified mail, postage prepaid, to the other party at such party's address set forth below. IF TO EXECUTIVE: Michael E. Julian c/o Jitney-Jungle Stores of America, Inc. P.O. Box 3409 Jackson, Mississippi 39207-3409 IF TO COMPANY: Jitney-Jungle Stores of America, Inc. P.O. Box 3409 Jackson, Mississippi 39207-3409 Attention: W. H. Holman. Jr. with a copy to: Bruckmann, Rosser, Sherrill & Co., Inc. 126 East 56th Street, 29th Floor New York, New York 10022 Attention: Harold O. Rosser II Each party may change the address to which notices from the other party are to be sent by notifying such party of its new address in accordance with this Section 16. 20. Waiver. No waiver of any condition, obligation or term hereof shall constitute a waiver of any other or a waiver of a subsequent right to demand strict compliance with all conditions, obligations and terms hereof. 21. Successors. This Agreement, including the documents and instruments referred to herein, shall inure to the benefit of and be binding upon and enforceable against the heirs, legal representatives, successors, and assigns of the parties hereto. 22. Delegation of Duties. Executive may not delegate or assign any of his duties or obligations hereunder. With the exception of assigning duties to the Executive relating to the business of the affiliates or any subsidiaries of the Company and with the exception of an assignment to any acquiror in connection with (i) an acquisition of 50% or more of the Company's voting stock, (ii) a merger or consolidation of the Company resulting in the holders of the Company's voting stock immediately prior to such transaction holding less than 50% of the total voting common stock of the surviving corporation after such termination or (iii) a sale or exchange of all or substantially all of the property or assets of the Company, the Company shall have no right to assign this Agreement without Executive's written consent. 23. Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall, nevertheless, continue in full force and without being impaired or invalidated in any way. 24. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated hereby and supersedes all prior arrangements or understandings with respect thereto. Executed as of the day and year first above written. JITNEY-JUNGLE STORES OF AMERICA, INC. ("Company") By: Name: Title: MICHAEL E. JULIAN ("Executive") EMPLOYMENT AGREEMENT This Employment Agreement dated effective as of December 8, 1997, is made and entered into by and between Jitney-Jungle Stores of America, Inc., a Mississippi corporation (the "Company"), and Ronald E. Johnson (the "Executive"). RECITALS The Company desires to employ the Executive in the business operated by the Company, according to the terms, covenants and conditions hereinafter set forth. NOW, THEREFORE, the Company and the Executive hereto agree as follows: 1. Employment and Duties. Subject to the terms hereof, the Company employs Executive as President and Chief Operating Officer of the Company and in such capacities with its affiliates and subsidiaries as the Company shall designate, with full authority to manage the day-to-day business of the Company, subject only to the direction of the Company's Chief Executive Officer and Board of Directors. Executive accepts such employment and agrees to devote substantially his entire professional time, attention and energies to the business of the Company and to perform such additional responsibilities and duties consistent with his position as provided in the Bylaws and as may be assigned to him from time to time by the Board of Directors. Executive shall work at the principal office of the Company located in or near the Jackson, Mississippi metropolitan area or at such other location in or near the Jackson, Mississippi metropolitan area as the Board of Directors, in its discretion, may select. 2. Extent of Services. Executive shall devote substantially all his working time (during normal business hours) and attention (other than during any illness and vacations) and give his good faith efforts, skills and abilities to the management and operations of the Company; it being understood and agreed that Executive shall be permitted to manage his own personal affairs and serve as director or officer of any trade association, civic, corporate, educational or charitable organization or governmental entity, provided that Executive's service does not materially interfere with Executive's performance of his duties hereunder. Executive shall report only and directly to the Company's Chief Executive Officer and Board of Directors. Notwithstanding the above, the Executive shall not be required to perform any duties or responsibilities which would be likely to result in non-compliance with or violation of any applicable law or regulation. 3. Term. The initial term of this Agreement shall commence as of the effective date hereof and, unless earlier terminated pursuant to Section 8, shall continue thereafter until terminated by either party upon the giving of at least thirty (30) days' advance written notice. 4. Compensation. Executive's compensation under this Agreement shall be as follows: (a) Base Salary. Company shall pay Executive a base salary ("Base Salary") at a rate of no less than $400,000.00 per year from the date hereof. The Base Salary shall be inclusive of all compensation for any services Executive may be elected or selected to perform (i) as a member of the Board of Directors of the Company and/or any of its affiliates and subsidiaries, or (ii) as a member of any appointed committees of such Boards of Directors, including the Executive Committee. In addition, the Board of Directors of Company shall, in good faith, consider granting increases in such Base Salary based upon such factors as Executive's performance and the growth and/or profitability of the Company and those affiliates and subsidiaries that Executive is directed to serve. Executive's Base Salary shall be paid in installments in accordance with the Company's normal payment schedule for its senior management. All payments shall be subject to the deduction of payroll taxes and similar assessments as required by law. (b) Bonus. In addition to the Base Salary, Executive shall be eligible each year for a cash bonus of up to 100% of the Base Salary based upon his performance in accordance with specific quarterly or annual objectives as set forth under the Company's Supervisory Personnel Bonus Plan or such other similar plan as may be approved by the Board of Directors. 5. Fringe Benefits. (a) The Company agrees to furnish an automobile to Executive of his choice and to make such automobile available for the Executive's exclusive use during the period of his employment with the Company. All maintenance, taxes and other operating costs shall be paid by the Company, subject to appropriate withholding requirements. (b) The Company shall also make available to Executive those benefits which are made available to the executive officers of the Company as a group, which benefits currently include, without limitation, 401(k) plans, profit sharing plans, and health, dental, disability and term life insurance (providing life insurance benefits of $1,000,000.00). 6. Vacation. Executive shall be entitled to take three weeks of paid vacation during each fiscal year in which he is employed. Accrued but unused vacation shall be carried over only in accordance with the Company's standard policies. 7. Expense Reimbursement. In addition to the compensation and benefits provided in Sections 4, 5 and 6 hereof, the Company shall, upon receipt of appropriate documentation, reimburse Executive for his reasonable travel, lodging, entertainment, and other ordinary and necessary business expenses incurred in the course of his duties on behalf of the Company. 8. Termination of Employment. (a) Either party may terminate Executive's employment under this Agreement for any reason by giving thirty (30) days' written notice to the other party. In the event of a termination by the Company, the Company may elect that the Executive cease all services and leave the premises immediately. If the Company terminates Executive's employment without Cause pursuant to this Section 8(a) or if the Executive resigns at the request (without Cause) of the Board of Directors or terminates his employment for Good Reason (as hereinafter defined), Executive shall be paid, in addition to his Base Salary earned through the date of termination, an amount equal to that percentage of the average of Executive's bonuses for the previous three (3) years, or the period of the actual employment if shorter, determined by dividing the number of days in the year prior to the date of termination by 365 and the Company shall pay Executive as severance pay an amount equal to one year's annual Base Salary plus 100% of the average of his bonuses for the previous three (3) years, or the period of his actual employment if shorter. The Executive shall continue to receive all benefits under the health benefit plans, practices, policies and programs provided by the Company to the extent applicable generally to other peer executives of the Company for a period of the lesser of one year or until the date Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan. All cash severance compensation amounts owed pursuant to this Section 8(a) shall be paid within thirty (30) days following the effective date of Executive's termination. If Executive notifies the Company of his intention to terminate his employment pursuant to this Section 8(a) for any reason, the Company shall have the right to accelerate the date of termination to a date on or after the date of Executive's notice. The Executive's termination of employment is deemed for "Good Reason," if any of the following occurs without the Executive's written consent: (i) the assignment to Executive of any duties materially inconsistent with, or the substantial reduction of powers or functions associated with, his positions, duties, responsibilities and status with the Company (other than changes in reporting or management responsibilities required by applicable federal or state law); (ii) a reduction by the Company of Executive's salary or a material reduction in other benefits taken as a whole (except to the extent such benefits are no longer generally available to members of management of the Company), except in connection with the termination of such Executive's employment by the Company for Cause (it being understood that failure to receive bonus payments at the same level as in prior years or periods shall not be deemed to be a reduction in salary); (iii) a change in Executive's principal work location, except for required travel on the Company's business; or (iv) the willful and continuing failure by the Company substantially to perform its obligations under this Agreement; provided, however, "Good Reason" shall not be deemed to exist hereunder unless the Company shall have failed to cure any breach or nonperformance within thirty (30) days after receipt by the Company of written notice thereof from the Executive, which notice shall be given by Executive promptly and in any event within fifteen (15) days after any event that the Executive believes constitutes "Good Reason." It is hereby expressly acknowledged that the foregoing definition of "Good Reason" shall be effective solely for purposes of this Agreement and shall not be applicable to any other agreement or understanding between Executive and the Company. "Cause" when used in connection with the termination of Executive's employment with the Company, means (A) act or acts of dishonesty or conviction of a felony by Executive; provided acts of "dishonesty" shall not extend to expense account items to the extent the items involved are nominal and any error is attributable to carelessness or committed in good faith within reasonable interpretation of the Company's policies, (B) failure by the Executive in any material respect as to his obligations, services or duties hereunder, which determination shall be made by the Board of Directors of the Company acting in good faith; provided, however, "cause" shall not be deemed to exist hereunder unless the Executive shall have failed to cure any such breach or nonperformance within thirty (30) days after receipt by the Executive of written notice thereof from the Company, (C) willful and deliberate violations of Executive's obligations (whether such obligations are designated by the Board of Directors or are set forth herein) to the Company that result in material injury to the Company and (D) misappropriation or embezzlement of any funds or property of the Company by the Executive. For purposes of this definition of cause, no act or failure to act, shall be considered "willful" unless done, or omitted to be done, (1) in bad faith and without reasonable belief that the action or omission was in the best interest of the Company or, (2) in the event the direction of the Board of Directors is unclear, without the reasonable belief that the action or omission was in the best interest of the Company. In the event that there is a disagreement regarding the existence of Good Reason or Cause (other than for conviction of a felony), either party may submit such disagreement to arbitration under the rules of the American Arbitration Association or such other procedure as the parties may agree. The ruling of the arbitration shall be final and binding on both parties. The Company and the Executive shall each pay their own arbitration costs unless the arbitrator's award determines otherwise, in which case such costs, expenses, and fees shall be paid in accordance with the arbitrator's award. The arbitration proceeding shall be conducted in Atlanta, Georgia. (b) Notwithstanding anything to the contrary in Section 8(a), the Company may terminate Executive's employment, effective immediately upon written notice to Executive or on any other dates specified in such notice, for Cause. Termination by the Company of Executive's employment for any other reason shall be deemed for the purposes of this Agreement to be without Cause. (c) Executive's employment hereunder shall terminate immediately upon his death or disability except as to any right which Executive's estate or dependents may have under COBRA or any other federal or state law or which are derived independent of this Agreement by reason of his participation in any plan maintained by the Company. Executive or his estate shall be entitled to receive the accrued Base Salary and bonus through the date of termination, with the accrued bonus being computed on a per diem basis based upon the bonus which would have otherwise been payable to the Executive for the fiscal year during which the date of termination falls had the Agreement not been terminated, computed on the same basis as in effect immediately prior to the date of termination, which bonus shall be paid as and when the same would have otherwise been payable under the bonus plan had the Agreement not been terminated. For purposes of this Section 8(c), Executive shall be deemed to be disabled if, on account of illness or other incapacity, he has been unable to perform his duties for seventy-five (75) consecutive days and, in the good faith judgment of the Board of Directors, will be unable to perform his duties hereunder for a period of twelve (12) consecutive months. The Company shall continue to pay Executive his base salary and other employment benefits hereunder prior to the termination by the Board of Directors pursuant to this Section 8(c) even though Executive is disabled during that period of time. (d) Severance payments due under Section 8(a) shall be paid when due regardless of whether Executive accepts employment with a new employer. (e) The Company and Executive acknowledge that they are entering into a change of control Agreement ("Control Agreement") regarding the Executive's employment upon the event of a change of control of the Company as defined in the Control Agreement (the "Change of Control"). In the event of a Change of Control the Control Agreement shall govern Executive's future employment. 9. Confidentiality. From and after the date hereof, Executive shall, and shall cause his affiliates and representatives to, keep confidential and not disclose to any other person or use for his own benefit or the benefit of any other person any trade secrets or other confidential proprietary information in his or their possession or control regarding the Company or its affiliates or their respective businesses and operations. The obligation of Executive under this Section 9 shall not apply to information which (i) is or becomes generally available to the public without breach of the commitment provided for in this Section; or (ii) is required to be disclosed by law, order or regulation of a court or tribunal or governmental authority; provided, however, that, in any such case, Executive shall notify the Company as early as reasonably practicable prior to disclosure to allow the Company to take appropriate measures to preserve the confidentiality of such information. 10. Stock Options. The Company has granted to Executive, on terms to be set forth in the separate option agreement attached hereto, options to acquire shares of capital stock of the Company. 11. Competition; Solicitation. Executive hereby agrees that during the Term he will not, unless authorized in writing to do so by the Company, (a) directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be employed or otherwise connected in any substantial manner with any business which directly or indirectly competes to a material extent with any line of business of the Company or its subsidiaries; provided, that nothing in this Agreement shall prohibit Executive from acquiring up to 2% of any class of outstanding equity securities of any corporation whose equity securities are regularly traded on a national securities exchange or in the "over-the-counter market"; (b) recruit any employee of the Company or solicit or induce, or attempt to solicit or induce, any employee of the Company to terminate his or her employment with, or otherwise cease his or her relationship with, the Company; or (c) solicit, divert or take away, or attempt to solicit, divert or to take away, the business or patronage of any of the clients, customers or accounts as prospective clients, customers or accounts, of the Company. Provided that the Company pays the Executive (i) the severance payment due to Executive in accordance with Section 8(a) hereof or, (ii) an amount equal to the Section 8(a) severance payment within thirty (30) days following the effective date of Executive's termination, the covenants contained in the preceding sentence regarding competition and solicitation shall extend for a period of one year from the termination or expiration of the Term in consideration for such payment. 12. Equitable Relief. The Company and Executive confirm that the restrictions contained in Sections hereof are, in view of the nature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Company and that any violation of any provision of Sections will result in irreparable injury to the Company. Executive hereby agrees that, in the event of any breach or threatened breach of the terms or conditions of this Agreement by Executive, the Company's remedies at law will be inadequate and, in any such event, the Company shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable relief in any court of competent jurisdiction. 13. Indemnity. The Company agrees to indemnify Executive against all costs, charges and expenses incurred or sustained by Executive in connection with any action, suit or proceeding to which he may be a party by reason of being or having been a director, officer or employee at the request of the Company to the fullest extent permitted by applicable law. 14. Amendment. This Agreement contains and its terms constitute the entire Agreement of the parties and supersedes all prior Agreements regarding employment, and may be amended only by a written document signed by both parties to this Agreement. 15. Governing Law. This Agreement shall be governed by the laws of the State of Mississippi. The parties hereby irrevocably consent to, and waive any objection to the exercise of, personal jurisdiction by the state and federal courts located in the State of Mississippi with respect to any action or proceeding arising out of this Agreement. 16. Attorneys' Fees. The Company agrees to pay, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (only to the extent the Executive prevails in the outcome thereof) by the Company of the validity or enforceability of, or liability under, any provision of this Agreement (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). 17. Severability. Should any provision hereof be deemed, for any reason whatsoever, to be invalid or inoperative, that provision shall be deemed severable and shall not affect the force and validity of all other provisions of this Agreement. 18. Survival. All provisions which may reasonably be interpreted or construed to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement. 19. Notices. Any notice, request or instruction to be given hereunder shall be in writing and shall be deemed given when personally delivered or three (3) days after being sent by certified mail, postage prepaid, to the other party at such party's address set forth below. IF TO EXECUTIVE: Ronald E. Johnson c/o Jitney-Jungle Stores of America, Inc. P.O. Box 3409 Jackson, Mississippi 39207-3409 IF TO COMPANY: Jitney-Jungle Stores of America, Inc. P.O. Box 3409 Jackson, Mississippi 39207-3409 Attention: Michael E. Julian with a copy to: Bruckmann, Rosser, Sherrill & Co., Inc. 126 East 56th Street, 29th Floor New York, New York 10022 Attention: Harold O. Rosser II Each party may change the address to which notices from the other party are to be sent by notifying such party of its new address in accordance with this Section 16. 20. Waiver. No waiver of any condition, obligation or term hereof shall constitute a waiver of any other or a waiver of a subsequent right to demand strict compliance with all conditions, obligations and terms hereof. 21. Successors. This Agreement, including the documents and instruments referred to herein, shall inure to the benefit of and be binding upon and enforceable against the heirs, legal representatives, successors, and assigns of the parties hereto. 22. Delegation of Duties. Executive may not delegate or assign any of his duties or obligations hereunder. With the exception of assigning duties to the Executive relating to the business of the affiliates or any subsidiaries of the Company and with the exception of an assignment to any acquiror in connection with (i) an acquisition of 50% or more of the Company's voting stock, (ii) a merger or consolidation of the Company resulting in the holders of the Company's voting stock immediately prior to such transaction holding less than 50% of the total voting common stock of the surviving corporation after such termination or (iii) a sale or exchange of all or substantially all of the property or assets of the Company, the Company shall have no right to assign this Agreement without Executive's written consent. 23. Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall, nevertheless, continue in full force and without being impaired or invalidated in any way. 24. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated hereby and supersedes all prior arrangements or understandings with respect thereto. Executed as of the day and year first above written. JITNEY-JUNGLE STORES OF AMERICA, INC. ("Company") By: Name: Title: RONALD E. JOHNSON ("Executive") EMPLOYMENT AGREEMENT This Employment Agreement dated effective as of January 1, 1998, is made and entered into by and between Jitney-Jungle Stores of America, Inc., a Mississippi corporation (the "Company"), and R. Barry Cannada (the "Executive"). RECITALS The Company desires to employ the Executive in the business operated by the Company, according to the terms, covenants and conditions hereinafter set forth. NOW, THEREFORE, the Company and the Executive hereto agree as follows: 1. Employment and Duties. Subject to the terms hereof, the Company employs Executive as Chief Administrative Officer, Executive Vice President and General Counsel of the Company and in such capacities with its affiliates and subsidiaries as the Company shall designate, with full authority to manage the day-to-day business of the Company, subject only to the direction of the Company's Chief Executive Officer and Board of Directors, or at either of their direction, to the Company's President and Chief Operating Officer. Executive accepts such employment and agrees to devote substantially his entire professional time, attention and energies to the business of the Company and to perform such additional responsibilities and duties consistent with his position as provided in the Bylaws and as may be assigned to him from time to time by the Board of Directors. Executive shall work at the principal office of the Company located in or near the Jackson, Mississippi metropolitan area or at such other location in or near the Jackson, Mississippi metropolitan area as the Board of Directors, in its discretion, may select. 2. Extent of Services. Executive shall devote substantially all his working time (during normal business hours) and attention (other than during any illness and vacations) and give his good faith efforts, skills and abilities to the management and operations of the Company; it being understood and agreed that Executive shall be permitted to manage his own personal affairs and serve as director or officer of any trade association, civic, corporate, educational or charitable organization or governmental entity, provided that Executive's service does not materially interfere with Executive's performance of his duties hereunder. Executive shall report only and directly to the Company's Chief Executive Officer and Board of Directors, or at either of their direction, to the Company's President and Chief Operating Officer. Executive is specifically permitted to be a member of the Board of Directors of Campus Crusade for Christ, Inc., and its affiliates and to attend all meetings thereof. Notwithstanding the above, the Executive shall not be required to perform any duties or responsibilities which would be likely to result in non-compliance with or violation of any applicable law or regulation. 3. Term. The initial term of this Agreement shall commence as of the effective date hereof and, unless earlier terminated pursuant to Section 8, shall continue thereafter until terminated by either party upon the giving of at least thirty (30) days' advance written notice. 4. Compensation. Executive's compensation under this Agreement shall be as follows: (a) Base Salary. Company shall pay Executive a base salary ("Base Salary") at a rate of $250,000 from the effective date through June 30, 1998 and no less than $275,000.00 per year effective July 1, 1998. The Base Salary shall be inclusive of all compensation for any services Executive may be elected or selected to perform (i) as a member of the Board of Directors of the Company and/or any of its affiliates and subsidiaries, or (ii) as a member of any appointed committees of such Boards of Directors, including the Executive Committee. In addition, the Board of Directors of Company shall, in good faith, consider granting increases in such Base Salary based upon such factors as Executive's performance and the growth and/or profitability of the Company and those affiliates and subsidiaries that Executive is directed to serve. Executive's Base Salary shall be paid in installments in accordance with the Company's normal payment schedule for its senior management. All payments shall be subject to the deduction of payroll taxes and similar assessments as required by law. (b) Bonus. In addition to the Base Salary, Executive shall be eligible each year for a cash bonus of up to 75% of Base Salary from the effective date through June 30, 1998 and up to 100% of the Base Salary effective July 1, 1998 and thereafter based upon his performance in accordance with specific quarterly or annual objectives as set forth under the Company's Supervisory Personnel Bonus Plan or such other similar plan as may be approved by the Board of Directors. 5. Fringe Benefits. (a) The Company agrees to furnish an automobile to Executive of his choice and to make such automobile available for the Executive's exclusive use during the period of his employment with the Company. All maintenance, taxes and other operating costs shall be paid by the Company, subject to appropriate withholding requirements. (b) The Company shall also make available to Executive those benefits which are made available to the executive officers of the Company as a group, which benefits currently include, without limitation, 401(k) plans, profit sharing plans, and health, dental, disability and term life insurance. (c) The Company shall also supply reasonable secretarial support with an experienced legal secretary. (d) The Company shall also pay for association dues and expenses associated with continuing legal education requirements. 6. Vacation. Executive shall be entitled to take four weeks of paid vacation during each fiscal year in which he is employed. Accrued but unused vacation shall be carried over only in accordance with the Company's standard policies. 7. Expense Reimbursement. In addition to the compensation and benefits provided in Sections 4, 5 and 6 hereof, the Company shall, upon receipt of appropriate documentation, reimburse Executive for his reasonable travel, lodging, entertainment, and other ordinary and necessary business expenses incurred in the course of his duties on behalf of the Company. 8. Termination of Employment. (a) Either party may terminate Executive's employment under this Agreement for any reason by giving thirty (30) days' written notice to the other party. In the event of a termination by the Company, the Company may elect that the Executive cease all services and leave the premises immediately. If the Company terminates Executive's employment without Cause pursuant to this Section 8(a) or if the Executive resigns at the request (without Cause) of the Board of Directors or terminates his employment for Good Reason (as hereinafter defined), Executive shall be paid, in addition to his Base Salary earned through the date of termination, an amount equal to that percentage of the average of Executive's bonuses for the previous three (3) years, or the period of the actual employment if shorter, determined by dividing the number of days in the year prior to the date of termination by 365 and the Company shall pay Executive as severance pay an amount equal to one year's annual Base Salary plus 100% of the average of his bonuses for the previous three (3) years, or the period of his actual employment if shorter. The Executive shall continue to receive all benefits under the health benefit plans, practices, policies and programs provided by the Company to the extent applicable generally to other peer executives of the Company for a period of the lesser of one year or until the date Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan. All cash severance compensation amounts owed pursuant to this Section 8(a) shall be paid within thirty (30) days following the effective date of Executive's termination. If Executive notifies the Company of his intention to terminate his employment pursuant to this Section 8(a) for any reason, the Company shall have the right to accelerate the date of termination to a date on or after the date of Executive's notice. The Executive's termination of employment is deemed for "Good Reason," if any of the following occurs without the Executive's written consent: (i) the assignment to Executive of any duties materially inconsistent with, or the substantial reduction of powers or functions associated with, his positions, duties, responsibilities and status with the Company (other than changes in reporting or management responsibilities required by applicable federal or state law); (ii) a reduction by the Company of Executive's salary or a material reduction in other benefits taken as a whole (except to the extent such benefits are no longer generally available to members of management of the Company), except in connection with the termination of such Executive's employment by the Company for Cause (it being understood that failure to receive bonus payments at the same level as in prior years or periods shall not be deemed to be a reduction in salary); (iii) a change in Executive's principal work location, except for required travel on the Company's business; or (iv) the willful and continuing failure by the Company substantially to perform its obligations under this Agreement; provided, however, "Good Reason" shall not be deemed to exist hereunder unless the Company shall have failed to cure any breach or nonperformance within thirty (30) days after receipt by the Company of written notice thereof from the Executive, which notice shall be given by Executive promptly and in any event within fifteen (15) days after any event that the Executive believes constitutes "Good Reason." It is hereby expressly acknowledged that the foregoing definition of "Good Reason" shall be effective solely for purposes of this Agreement and shall not be applicable to any other agreement or understanding between Executive and the Company. "Cause" when used in connection with the termination of Executive's employment with the Company, means (A) act or acts of dishonesty or conviction of a felony by Executive; provided acts of "dishonesty" shall not extend to expense account items to the extent the items involved are nominal and any error is attributable to carelessness or committed in good faith within reasonable interpretation of the Company's policies, (B) failure by the Executive in any material respect as to his obligations, services or duties hereunder, which determination shall be made by the Board of Directors of the Company acting in good faith; provided, however, "cause" shall not be deemed to exist hereunder unless the Executive shall have failed to cure any such breach or nonperformance within thirty (30) days after receipt by the Executive of written notice thereof from the Company, (C) willful and deliberate violations of Executive's obligations (whether such obligations are designated by the Board of Directors or are set forth herein) to the Company that result in material injury to the Company and (D) misappropriation or embezzlement of any funds or property of the Company by the Executive. For purposes of this definition of cause, no act or failure to act, shall be considered "willful" unless done, or omitted to be done, (1) in bad faith and without reasonable belief that the action or omission was in the best interest of the Company, or, (2) in the event the direction of the Board of Directors is unclear, without the reasonable belief that the action or omission was in the best interest of the Company. In the event that there is a disagreement regarding the existence of Good Reason or Cause (other than for conviction of a felony), either party may submit such disagreement to arbitration under the rules of the American Arbitration Association or such other procedure as the parties may agree. The ruling of the arbitration shall be final and binding on both parties. The Company and the Executive shall each pay their own arbitration costs unless the arbitrator's award determines otherwise, in which case such costs, expenses, and fees shall be paid in accordance with the arbitrator's award. The arbitration proceeding shall be conducted in Atlanta, Georgia. (b) Notwithstanding anything to the contrary in Section 8(a), the Company may terminate Executive's employment, effective immediately upon written notice to Executive or on any other dates specified in such notice, for Cause. Termination by the Company of Executive's employment for any other reason shall be deemed for the purposes of this Agreement to be without Cause. (c) Executive's employment hereunder shall terminate immediately upon his death or disability except as to any right which Executive's estate or dependents may have under COBRA or any other federal or state law or which are derived independent of this Agreement by reason of his participation in any plan maintained by the Company. Executive or his estate shall be entitled to receive the accrued Base Salary and bonus through the date of termination, with the accrued bonus being computed on a per diem basis based upon the bonus which would have otherwise been payable to the Executive for the fiscal year during which the date of termination falls had the Agreement not been terminated, computed on the same basis as in effect immediately prior to the date of termination, which bonus shall be paid as and when the same would have otherwise been payable under the bonus plan had the Agreement not been terminated. For purposes of this Section 8(c), Executive shall be deemed to be disabled if, on account of illness or other incapacity, he has been unable to perform his duties for seventy-five (75) consecutive days and, in the good faith judgment of the Board of Directors, will be unable to perform his duties hereunder for a period of twelve (12) consecutive months. The Company shall continue to pay Executive his base salary and other employment benefits hereunder prior to the termination by the Board of Directors pursuant to this Section 8(c) even though Executive is disabled during that period of time. (d) Severance payments due under Section 8(a) shall be paid when due regardless of whether Executive accepts employment with a new employer. (e) The Company and Executive acknowledge that they are entering into a change of control Agreement ("Control Agreement") regarding the Executive's employment upon the event of a change of control of the Company as defined in the Control Agreement (the "Change of Control"). In the event of a Change of Control the Control Agreement shall govern Executive's future employment. 9. Confidentiality. From and after the date hereof, Executive shall, and shall cause his affiliates and representatives to, keep confidential and not disclose to any other person or use for his own benefit or the benefit of any other person any trade secrets or other confidential proprietary information in his or their possession or control regarding the Company or its affiliates or their respective businesses and operations. The obligation of Executive under this Section 9 shall not apply to information which (i) is or becomes generally available to the public without breach of the commitment provided for in this Section; or (ii) is required to be disclosed by law, order or regulation of a court or tribunal or governmental authority; provided, however, that, in any such case, Executive shall notify the Company as early as reasonably practicable prior to disclosure to allow the Company to take appropriate measures to preserve the confidentiality of such information. 10. Stock Options. The Company has granted to Executive, on terms to be set forth in the separate option agreement attached hereto, options to acquire shares of capital stock of the Company. 11. Competition; Solicitation. Executive hereby agrees that during the Term he will not, unless authorized in writing to do so by the Company, (a) directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be employed or otherwise connected in any substantial manner with any business which directly or indirectly competes to a material extent with any line of business of the Company or its subsidiaries; provided, that nothing in this Agreement shall prohibit Executive from acquiring up to 2% of any class of outstanding equity securities of any corporation whose equity securities are regularly traded on a national securities exchange or in the "over-the-counter market"; (b) recruit any employee of the Company or solicit or induce, or attempt to solicit or induce, any employee of the Company to terminate his or her employment with, or otherwise cease his or her relationship with, the Company; or (c) solicit, divert or take away, or attempt to solicit, divert or to take away, the business or patronage of any of the clients, customers or accounts as prospective clients, customers or accounts, of the Company. Provided that the Company pays the Executive (i) the severance payment due to Executive in accordance with Section 8(a) hereof or, (ii) an amount equal to the Section 8(a) severance payment within thirty (30) days following the effective date of Executive's termination, the covenants contained in the preceding sentence regarding competition and solicitation shall extend for a period of one year from the termination or expiration of the Term in consideration for such payment. 12. Equitable Relief. The Company and Executive confirm that the restrictions contained in Sections hereof are, in view of the nature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Company and that any violation of any provision of Sections will result in irreparable injury to the Company. Executive hereby agrees that, in the event of any breach or threatened breach of the terms or conditions of this Agreement by Executive, the Company's remedies at law will be inadequate and, in any such event, the Company shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable relief in any court of competent jurisdiction. 13. Indemnity. The Company agrees to indemnify Executive against all costs, charges and expenses incurred or sustained by Executive in connection with any action, suit or proceeding to which he may be a party by reason of being or having been a director, officer or employee at the request of the Company to the fullest extent permitted by applicable law. 14. Amendment. This Agreement contains and its terms constitute the entire Agreement of the parties and supersedes all prior Agreements regarding employment, and may be amended only by a written document signed by both parties to this Agreement 15. Governing Law. This Agreement shall be governed by the laws of the State of Mississippi. The parties hereby irrevocably consent to, and waive any objection to the exercise of, personal jurisdiction by the state and federal courts located in the State of Mississippi with respect to any action or proceeding arising out of this Agreement. 16. Attorneys' Fees. The Company agrees to pay, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (only to the extent the Executive prevails in the outcome thereof) by the Company of the validity or enforceability of, or liability under, any provision of this Agreement (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement). 17. Severability. Should any provision hereof be deemed, for any reason whatsoever, to be invalid or inoperative, that provision shall be deemed severable and shall not affect the force and validity of all other provisions of this Agreement. 18. Survival. All provisions which may reasonably be interpreted or construed to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement. 19. Notices. Any notice, request or instruction to be given hereunder shall be in writing and shall be deemed given when personally delivered or three (3) days after being sent by certified mail, postage prepaid, to the other party at such party's address set forth below. IF TO EXECUTIVE: R. Barry Cannada c/o Jitney-Jungle Stores of America, Inc. P.O. Box 3409 Jackson, Mississippi 39207-3409 IF TO COMPANY: Jitney-Jungle Stores of America, Inc. P.O. Box 3409 Jackson, Mississippi 39207-3409 Attention: Michael E. Julian with a copy to: Bruckmann, Rosser, Sherrill & Co., Inc. 126 East 56th Street, 29th Floor New York, New York 10022 Attention: Harold O. Rosser II Each party may change the address to which notices from the other party are to be sent by notifying such party of its new address in accordance with this Section 16. 20. Waiver. No waiver of any condition, obligation or term hereof shall constitute a waiver of any other or a waiver of a subsequent right to demand strict compliance with all conditions, obligations and terms hereof. 21. Successors. This Agreement, including the documents and instruments referred to herein, shall inure to the benefit of and be binding upon and enforceable against the heirs, legal representatives, successors, and assigns of the parties hereto. 22. Delegation of Duties. Executive may not delegate or assign any of his duties or obligations hereunder. With the exception of assigning duties to the Executive relating to the business of the affiliates or any subsidiaries of the Company and with the exception of an assignment to any acquiror in connection with (i) an acquisition of 50% or more of the Company's voting stock, (ii) a merger or consolidation of the Company resulting in the holders of the Company's voting stock immediately prior to such transaction holding less than 50% of the total voting common stock of the surviving corporation after such termination or (iii) a sale or exchange of all or substantially all of the property or assets of the Company, the Company shall have no right to assign this Agreement without Executive's written consent. 23. Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall, nevertheless, continue in full force and without being impaired or invalidated in any way. 24. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated hereby and supersedes all prior arrangements or understandings with respect thereto. Executed as of the day and year first above written. JITNEY-JUNGLE STORES OF AMERICA, INC. ("Company") By: Name: Title: R. BARRY CANNADA ("Executive") EX-10 4 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 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 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 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. (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 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 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 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 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 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 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 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. (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 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 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. (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. 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: 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 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 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 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. (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 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 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 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 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 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 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 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. (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 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 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. (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: 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 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 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 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. (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 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 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 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 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 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 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 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. (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 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 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. (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: -----END PRIVACY-ENHANCED MESSAGE-----