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EXHIBIT 10.4
GENERAL RELEASE
This General Release (the "Release") is being entered into as of the
31st day of December, 1997, between Xxxxx X. Xxxxx ("Xxxxx"), Cafeteria
Operators, L.P., a Delaware limited partnership (the "Partnership"), and
Furr's/Xxxxxx'x, Inc., a Delaware corporation (together with its subsidiaries
and as a general partner of the Partnership, the "Company") in accordance with
and as required by Sections 5(b) and 5(d) of the Consulting and Indemnity
Agreement and General Release (the "Agreement") dated as of the 7th day of
June, 1996. Any capitalized terms used but not defined herein shall have the
definitions ascribed to them in the Agreement.
WHEREAS, Sections 5(b) and 5(d) of the Agreement contemplate the
execution and delivery by each of Xxxxx and the Company of a release in
substantially the forms as set forth in Sections 3.A. and 3.B. hereof,
respectively;
WHEREAS, Xxxxx and the Partnership agree that, notwithstanding that
Xxxxx is not resigning his position as Chairman of the Board as contemplated to
occur by December 31, 1997, by Section 2(b) of the Agreement, the intent of
Section 5(b) and 5(d) of the Agreement is for each of Xxxxx and the Company to
deliver the releases called for thereby simultaneous with the delivery of the
$100,000 payment due and payable to Xxxxx on December 31, 1997, pursuant to
Section 4(c) of the Agreement, which payment is to occur and is being made
simultaneously with the execution and delivery of this Release;
WHEREAS, each of the Company and Xxxxx have determined that it is in
their respective best interest to execute and deliver this Release.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged,
the parties hereto enter into this Release on the terms as set forth below:
1. Consulting Services.
A. Service. The Company hereby acknowledges and agrees
that Xxxxx has fulfilled his obligations under Section 3. of the Consulting
Agreement.
B. Compensation. Xxxxx acknowledges and agrees that the
Company has paid to Xxxxx all payments and other compensation (including
reimbursement of any and all expenses related to any period on or prior to
December 31, 1997) payable to Xxxxx pursuant to Section 4. of the Consulting
Agreement, including without limitation amounts payable pursuant to Sections
4(b) and 4(c) of the Consulting Agreement, and that Xxxxx has no further claim
against the Company for or entitlement to any amounts payable to Xxxxx under
Section 4. of the Consulting Agreement.
C. Kmart Assistance. The Company and Xx. Xxxxx
acknowledge that the Company did not exercise the Kmart Assistance Request as
contemplated by Section 3(d) of the Agreement and that such right terminates as
of the date hereof. Therefore, the Company and Xx. Xxxxx acknowledge that
neither party has any of the obligations imposed by, or benefits of, the
exercise of the Kmart Assistance Request including, but not limited to, the
compensation outlined in Section 4(e) of the Agreement.
2. Access to and Return of Materials. Notwithstanding the
provisions of Section 6. of the Consulting Agreement, the Company and Xxxxx
agree that the reference to December 31, 1997, in Section 6(a) of the
Consulting Agreement shall be deemed to refer to the date hereafter on which
Xxxxx ceases to serve as a member of the Board of Directors of Furr's.
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3. Release.
X. Xxxxx Release. Xxxxx does hereby release, discharge
and acquit the Company and its affiliates, parents, subsidiaries, and their
respective officers, directors, employees, agents, representatives, successors,
assigns, in their capacities as such (the "Released Parties"), from any and all
causes of action, claims, demands, debts, liabilities, expenses or costs of
court of any and every character and nature whatsoever, whether or not
previously asserted, whether known or unknown, either in or arising out of the
law of contracts, torts, property rights, statutes or ordinances as to all
wrongful discharge claims, all tort, intentional tort, negligence, employee
benefit claims and contract claims, any claim for attorneys' fees, costs, or
expenses or any claim arising from any federal, state or local civil rights
and/or employment law (including but not limited to, Title VII of the Civil
Rights Act of 1964, the Texas Commission on Human Rights Act, The Age
Discrimination in Employment Act, and the Americans With Disabilities Act)
and/or wages, bonuses, commissions' at law or in equity, arising out of any
matter at any time up to and including the date of execution of this Release;
and any other matter whatsoever, it being the parties' intention that the scope
and breadth of this Release be as broad and extensive as lawfully possible in
order to lay to rest forever any potential controversies concerning any matters
existing or occurring prior to the execution of this Release; provided,
however, that Xxxxx does not intend by this Release to release, and does not
release, any rights that he may have arising from the express terms of this
Release, under any of the Other Agreements referenced in Section 7(a) of the
Agreement, or, except as provided in Section 1.B. and 1.C. of this Release, the
Agreement.
B. Company Release. The Company, on behalf of itself
and each of its affiliates and, to the extent that it lawfully may bind them,
their respective officers, directors, employees, agents representatives,
successors and assigns, in their capacities as such (the "Releasing Parties"),
do hereby release, discharge and acquit Xxxxx from any and all causes of
action, claims, demands, debts, liabilities' expenses or costs of court of any
and every character and nature whatsoever, whether or not previously asserted
whether known or unknown, either in or arising out of the law of contracts,
torts, property rights, statutes or ordinances, at law or in equity, arising
out of any matter at any time up to and including the date of execution of this
Release; it being the parties' intention that the scope and breadth of this
Release be as broad and extensive as lawfully possible in order to lay to rest
forever any potential controversies concerning any makers existing or occurring
prior to the execution of this Release; provided, however, that the Company
does not intend by this Release to release, and does not release, any rights
that any Releasing Party may have arising from (i) the express terms of this
Release or, except as provided in Section 1.A. and 1.C. of this Release, the
Agreement, (ii) under any of the Other Agreements referenced in Section 7(a) of
the Agreement, or (iii) any claim or cause of action that the Company or its
affiliates may have that relate to or arise from Xxxxx' knowingly fraudulent,
dishonest or willful misconduct, or receipt of any personal profit or advantage
that he is not legally entitled to receive
IN WITNESS WHEREOF, the parties have signed this Release effective as
of December 31. 1997.
/s/
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Xxxxx X Xxxxx
FURR'S/XXXXXX'X, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Its: President
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CAFETERIA OPERATORS, X.X.
Xxxx'x/Xxxxxx'x, Inc.,
Its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
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Its: President
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