EXHIBIT 2
TERMINATION AGREEMENT
This Termination Agreement (this "Termination Agreement") dated as of
January 8, 1998, among Shoney's, Inc., a Tennessee corporation (the "Company"),
and Xxxxxxx X. Xxxxxxxxxx, an individual resident of the State of Georgia, and
Xxxxx X. Xxxxxxxxxx, an individual resident of the State of Florida.
WITNESSETH:
WHEREAS, the parties to this Termination Agreement are parties to a
Settlement Agreement dated as of August 10, 1997 and amended as of November 11,
1997 (as so amended, the "Settlement Agreement"); and
WHEREAS, each of the parties to this Termination Agreement has
determined that it is in such party's best interests to terminate the Settlement
Agreement, except to the extent provided herein, effective upon the execution
of this Agreement by all of the parties hereto.
NOW THEREFORE, in consideration of the premises and mutual promises
contained herein, the parties agree as follows:
A. Termination of Settlement Agreement. Except to the extent set
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forth in Section B of this Termination Agreement, effective upon the execution
of this Agreement by all of the parties hereto, the Settlement Agreement is
hereby terminated by the mutual agreement of the Company, Xxxxxxx X. Xxxxxxxxxx
and Xxxxx X. Xxxxxxxxxx.
B. Surviving Provisions. Notwithstanding the provisions of Section
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A of this Termination Agreement, Sections 3 and 8 of the Settlement Agreement
(the "Surviving Provisions") shall not be terminated and shall continue in full
force and effect.
C. Miscellaneous
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(a) Each of the parties agrees that it will not avoid or
seek to avoid the observance or performance of any of the terms hereof or of the
Surviving Provisions (whether by alleging in any court that one or more of the
provisions of this Termination Agreement or the Surviving Provisions is invalid
or unenforceable, or otherwise), but will act at all times in good faith to
assist in the carrying out of all such terms, and each of the parties hereby
irrevocably waives any claim that any provision hereunder or in the Surviving
Provisions may be invalid or unenforceable and agrees not to contend to the
contrary. In addition, each of the parties agrees that it will use all
reasonable efforts to defend against any claim by a third party that any of the
provisions of this Termination Agreement or the Surviving Provisions is invalid
or unenforceable.
(b) Each of the parties acknowledges and agrees that
irreparable injury to the other parties hereto would occur if any of the
provisions of this Termination Agreement or the Surviving Provisions were not
performed in accordance with their specific terms or were otherwise breached and
that such injury would not be compensable in money damages. It is accordingly
agreed that each party hereto (the "Moving Party") shall be entitled to specific
enforcement of the terms hereof and the Surviving Provisions and injunctive or
other equitable relief as a remedy for such nonperformance or breach, and each
party further waives any requirement for the securing or posting of any bond in
connection with such remedy. The other parties hereto will not take action,
directly or indirectly, in opposition to the Moving Party seeking such relief on
the grounds that any other remedy or relief is available at law or in equity.
The remedies for which this Section provides shall not be deemed to be the
exclusive remedies for breach of this Termination Agreement or the Surviving
Provisions, but shall be in addition to all other remedies available at law or
equity.
(c) If any term, provision, covenant or restriction of this Termination
Agreement or the Surviving Provisions is held by a court of competent
jurisdiction to be illegal, invalid, void or unenforceable, the parties agree
that such provision, covenant or restriction will be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the legality,
validity and enforceability of the remaining provisions of this Termination
Agreement or the Surviving Provisions shall not in any way be affected or
impaired thereby. The parties will negotiate in good faith to amend this
Termination Agreement and the Surviving Provisions to replace the unenforceable
language with enforceable language which as closely as possible reflects such
intent.
(d) Any waiver by any party hereto of a breach of any provision of this
Termination Agreement or the Surviving Provisions shall not operate as or be
construed to be a waiver of any other breach of such provision or of any breach
of any other provision of this Termination Agreement or the Surviving
Provisions. The failure of a party hereto to insist upon strict adherence to any
term of this Termination Agreement or the Surviving Provisions on one or more
occasions shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Termination Agreement or the Surviving Provisions.
(e) This Termination Agreement and the Surviving Provisions contain the
entire understanding of the parties hereto with respect to their subject
matter. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings other than those expressly set forth
herein and in the Surviving Provisions. This Termination Agreement and the
Surviving Provisions may be amended only by a written instrument duly executed
by the parties hereto.
(f) This Termination Agreement and the Surviving Provisions shall be
governed by and construed and enforced in accordance with the laws of Tennessee,
without reference to the conflict of laws principles thereof.
(g) This Termination Agreement may be executed in counterparts, each of
which shall be an original, but each of which together shall constitute one and
the same Agreement.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each of the
undersigned parties has executed or caused this Termination Agreement to be
executed on the date first above written.
SHONEY'S, INC.
By: /s/ J. Xxxxxxx Xxxxxx
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Name: J. Xxxxxxx Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
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