EXHIBIT 10.12
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT ("Agreement") is made as of November 1999 by and
between California Pizza Kitchen, Inc., a California corporation (the
"Company"), and Xxx Xxxxxxxx, an individual (the "Executive").
WITNESSETH
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A. The Company has retained the Executive to serve as the Company's Senior
Vice President of Real Estate and Chief Development Officer.
B. The Company and the Executive desire to enter into an agreement setting
forth the consequences of certain methods of terminating the Executive's
employment with the Company.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt of which
is acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows:
1. Definitions.
(a) "Base Salary" shall mean the amount of Executive's normal and
customary base salary payable by the Company on each normal and customary pay
interval of the Company, excluding amounts payable as a bonus or for benefits.
(b) "Cause" shall mean (i) Executive's commission of a felony or other
crime involving moral turpitude; (ii) Executive's willful misconduct that
materially adversely affects Executive's ability to perform Executive's duties
for the Company or materially adversely affects the Company, (iii) the willful
failure of Executive (other than because of Executive's Disability) to follow
the lawful instructions of the Board, after the Executive has received at least
seven days written notice of such instructions, which failure results in
demonstrable material injury to the Company; or (iv) Executive's breach of his
fiduciary duty to the Company for personal profit.
(c) "Disability" means the inability of the Executive to perform a
major part of the duties to be performed by the Executive as an employee of the
Company immediately prior to the inception of the disability, because of
illness, accident, or injury, for a period of 26 consecutive weeks or for a
cumulative period of 30 weeks in any 12 month period.
2. Right to Severance Payments.
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(a) In the event that the Executive's employment with the Company is
terminated by the Company, then the Company shall continue to pay the Executive,
at the Company's regular payroll intervals, the amount of his Base Salary in
effect on the date of termination (the "Base Rate") for twenty-six (26)
consecutive weeks following the date of termination. Thereafter, the Company
shall continue to pay the Executive, at the Company's regular payroll intervals,
the Base Rate for an additional twenty-six (26) consecutive week period (the
"Subsequent Period"); provided that any economic benefit or advantage earned or
accrued by the Executive from rendering employment, consulting or similar
services or from self-employment during the Subsequent Period shall reduce the
amount of Base Rate to be paid to the Executive each pay period on a dollar-for-
dollar basis. All obligations of the Company to pay the Base Rate shall
terminate upon the expiration of the Subsequent Period without regard to the
Executive's employment status at that time. The Executive shall report his
"Earnings" (defined as any and all economic benefits or advantages earned or
accrued by Executive from employment, consulting, or similar services or from
self-employment activities, but excluding life, medical and disability insurance
or other similar, non-monetary compensation), on a weekly basis no later than
the close of business on the Tuesday of the next succeeding week. At such time,
the Executive shall also report the nature and source of such Earnings to the
Company and the Company shall have the right to confirm the amount thereof with
the source and, in addition to any other rights the Company may have at law or
in equity, to withhold payment of the Base Rate to the extent such source or any
other source discloses that the Executive has Earnings during any week which are
in excess of those reported by the Executive with respect to such week. The
severance pay, if any, expressly granted under this Section 2(a) shall be the
sole and exclusive compensation, benefit and remedy due to the Executive or his
representatives upon the Company's termination of the Executive's employment.
(b) Notwithstanding the foregoing, the Company shall have no obligation
to make the payment referred to in Section 2(a) if the Executive's employment is
terminated as a result of the Executive's death, Disability or retirement, or if
Executive's employment is terminated by the Company for Cause.
3. Notices. Except as otherwise provided in this Agreement, any notice
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shall be deemed properly given if in writing and if mailed by registered or
certified mail, postage prepaid with return receipt requested, personally
delivered or sent by a nationally recognized overnight delivery service, to the
address of the Executive set forth below, in the case of notices to the
Executive, and the principal office of the Company at the address set forth
below, in the case of notices to the Company.
If to the Company to:
California Pizza Kitchen, Inc.
Restaurant Support Center
0000 Xxxx Xxxxxxx Xxxx., 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
If to the Executive, to:
Xxx Xxxxxxxx
0000 Xxxxxx Xx.
Xxxxxx, XX 00000
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4. Waiver. No provision of this Agreement may be modified, waived or
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discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Executive and an executive office of the Company specifically
designated by the Board. No waiver by any party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
5. Assignment. This Agreement shall not be assignable by any party
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hereto, except by the Company to any successor in interest to the Company which
assumes the liabilities of the Company under this Agreement.
6. Entire Agreement. This Agreement contains the entire agreement of the
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parties relating to the subject matter of this Agreement and supercedes any
prior agreement of the parties to such subject matter.
7. No Effect on Employment. This Agreement shall not confer upon
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Executive any right to continue in the employment of the Company.
8. Successors, Binding Agreement. This Agreement shall inure to the
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benefit of and enforceable by the Executive's personal or legal representatives,
executors, administrators, heir, distributees, devisees and legatees. If the
Executive should die while any amount is payable to the Executive under this
Agreement if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee or other designee, or if there is
no such designee, to the Executive's estate.
9. Applicable Law. The Agreement shall be governed by and construed in
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accordance with the internal laws (but not the conflict of law principles) of
the State of California.
10. Headings. The headings of the Sections of this Agreement are for
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convenience only and shall not control or affect the meaning or construction or
limit the scope or intent of any of the provisions of this Agreement.
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IN WITNESS THEREOF, the parties have executed this Agreement as of the date
first above written.
CALIFORNIA PIZZA KITCHEN, INC.
/s/ Xxxxxxxxx X. Xxxx
By: ----------------------------------------
Xxxxxxxxx X. Xxxx
President and Chief Executive Officer
EXECUTIVE
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
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IN WITNESS THEREOF, the parties have executed this Agreement as of the date
first above written.
CALIFORNIA PIZZA KITCHEN, INC.
/s/ Xxxxxxxxx X. Xxxx
By: ---------------------------------------
Xxxxxxxxx X. Xxxx
President and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
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