Exhibit 99.5
ADEA RELEASE AGREEMENT
This ADEA RELEASE AGREEMENT (the "Agreement"), dated as of November 8,
2003, is entered into by and between Avado Brands, Inc., a corporation organized
and existing under the laws of Georgia (the "Company") and Xxxxxxxx X. Xxxxxxx
("Executive").
W I T N E S S E T H
WHEREAS, Executive has been employed as Chief Administrative Officer of the
Company and has served as a member of the Board of Directors of the Company (the
"Board");
WHEREAS, Executive has resigned from her position as Chief Administrative
Officer of the Company and as a member of the Board and from all offices,
directorships and other positions with the Company and any of its affiliates and
subsidiaries; and
WHEREAS, Executive and the Company have entered into a Separation and
General Release Agreement, dated November 8, 2003 (the "Separation Agreement"),
that addresses certain matters relating to termination of the employment
relationship between Executive and the Company;
WHEREAS, in connection with Executive's resignation, the parties hereto
desire to resolve fully and finally all matters relating to the termination of
the employment relationship between Executive and the Company.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Severance Payment. In consideration of the release by Executive
set forth in Section 2, on February 13, 2004 (or within seven (7) days of the
"Effective Date" of this Agreement, whichever is later), the Company shall make
a one time payment to Executive in an amount equal to $83,750, less all
applicable federal, state and/or local taxes and all other authorized payroll
deductions. Executive agrees that she is fully and solely responsible for any
and all other income tax or withholding liability, if any, and all other taxes
that may attach to all amounts paid to her under this Agreement.
Section 2. ADEA Release; Agreement Review and Revocation Period. Executive
on her behalf and on behalf of each of her affiliates, associates, personal
representatives, representatives, executors, heirs, administrators, successors,
assigns, spouses, partners, beneficiaries, attorneys, advisors, and agents (the
"Executive Releasing Parties"), for good and sufficient consideration, the
receipt of which is acknowledged, releases absolutely and forever discharges the
Company and each of its predecessors, successors, assigns, parents,
subsidiaries, divisions, and affiliated companies, and each of their respective
former, current, and future officers, directors, owners, managers, employees,
partners, associates, representatives, stockholders, attorneys, advisors, and
agents, and each and all of them (the "Company Released Parties"), from and
against all liabilities, claims, liens, causes of action, charges, complaints,
grievances, obligations, costs, losses, damages, injuries, attorneys' fees, and
other legal responsibilities (collectively referred to as "Claims") under the
Age Discrimination in Employment Act ("ADEA"), as amended by the Older Workers
Benefit Protection Act of 1990 (29 U.S.C. xx.xx. 621, et seq.) ("OWBPA") which
Executive or Executive's successors in interest now own or hold or may claim to
own or hold, or have at any time heretofore owned or held or claimed to have
owned or held, or may at any time own or hold or claim to own or hold by reason
of any matter or thing arising from any cause whatsoever prior to the date of
execution of this Agreement. This release does not govern any rights or claims
that might arise under the ADEA after the date this Agreement is signed by the
parties. Executive acknowledges that: (a) the consideration provided pursuant to
this Agreement is in addition to any consideration that Executive would
otherwise be entitled to receive; (b) Executive has been and is hereby advised
in writing to consult with an attorney prior to signing this Agreement; (c)
Executive has been provided a full and ample opportunity to review this
Agreement, including a period of at least forty-five (45) days within which to
consider it; (d) to the extent that Executive takes less than forty-five (45)
days to consider this Agreement prior to execution, Executive acknowledges that
Executive had sufficient time to consider this Agreement with counsel and that
Executive expressly, voluntarily and knowingly waives any additional time; and
(e) Executive is aware of her right to revoke this Agreement at any time within
the seven (7) day period following the date on which Executive signs the
Agreement and that the Agreement shall not become effective or enforceable until
the seven (7) day revocation period expires (the "Effective Date"). Executive
further understands that Executive shall relinquish any right Executive has to
the consideration specified in this Agreement if Executive exercises Executive
right to revoke it. Notice of revocation must be made in writing and must be
received by the Company through the Chairman of the Board, Avado Brands, Inc.,
Xxxxxxx at Washington, Xxxxxxx, Xxxxxxx 00000, no later than 5:00 p.m. (Eastern
Standard Time) on the seventh (7th) day after Executive signs this Agreement.
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When an employer undertakes a group termination program, such as this one,
the ADEA and OWBPA require such an employer to provide each affected employee
with a description of the group of employees covered by the program, the
eligibility factors for such program, any time limits applicable to the program,
the job titles and ages of all individuals eligible or selected for the program,
and the ages of all individuals in the same job classification or organizational
unit who are not eligible or selected for the program. Attached hereto as
Exhibit A is the aforementioned required information relating to the Company's
termination program.
Section 3. Miscellaneous Provisions.
(a) Fees and Expenses. Each party hereto agrees to bear its own fees and
expenses relating to each of the matters referred to, contemplated by or the
subject of this Agreement.
(b) Amendment and Modification. This Agreement may be amended, modified and
supplemented only by written agreement of Executive and the Company. No waiver
of any breach of any term or provision of this Agreement shall be construed to
be, nor shall be, a waiver of any other breach of this Agreement. No waiver
shall be binding unless in writing and signed by the party waiving the breach.
(c) Notices. All notices, requests, demands and other communications
required or permitted shall be made in writing by hand-delivery, telecopier
(with written confirmation) or air courier guaranteeing overnight delivery:
(i) If to the Executive, to:
Xxxxxxxx X. Xxxxxxx
c/o Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
or to such other persons or addresses as Executive shall reasonably furnish
to the Company;
(ii) If to the Company, to:
Avado Brands, Inc.
Xxxxxxx at Washington
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
or to such other persons or addresses as the Company shall reasonably
furnish to Executive in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; when receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight delivery.
(d) Governing Law. This Agreement and the legal relations among the parties
hereto shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflicts of law doctrine.
(e) Jointly Drafted. Executive understands that this Agreement is deemed to
have been drafted jointly by the parties. Any uncertainty or ambiguity shall not
be construed for or against any party based on attribution of drafting to any
party.
(f) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Headings. The headings of the Sections of this Agreement are inserted
for convenience only and shall not constitute a part hereof or affect in any way
the meaning or interpretation of this Agreement.
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(h) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, relating
to the subject matter hereof; provided, however, that (i) nothing herein shall
modify or supersede any provision of the Separation Agreement, and (ii) the
release and waiver of Claims set forth in Section 2 of this Agreement is in
addition to the release and waiver of Claims in the Separation Agreement and is
not meant to and does not excuse any of Executive's obligations under the
Separation Agreement.
(i) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by a party of any covenants or agreements contained
in this Agreement will cause the other party to sustain injury for which it
would not have an adequate remedy at law for money damages. Therefore, each of
the parties hereto agrees that in the event of any such breach, the aggrieved
party shall be entitled to the remedy of specific performance of such covenants
and agreements and preliminary and permanent injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
(j) Successors; Assignment; Third-Party Beneficiaries. This Agreement shall
be binding upon and shall inure to the benefit of each of the parties hereto,
and their respective heirs, legatees, executors, administrators, legal
representatives, successors and assigns, but except as otherwise provided for or
permitted herein neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other party; provided that the provisions of Section 2
hereof are intended to be for the benefit of, and shall be enforceable by, each
Company Released Party and his, her or its heirs, legatees, executors,
administrators, legal representatives, successors and assigns. Except as set
forth in the immediately preceding sentence, this Agreement is solely for the
benefit of the parties hereto and shall not inure to the benefit of any third
party.
(k) Reliance. Executive understands and acknowledges that reliance is
placed wholly upon Executive's own judgment, belief and knowledge as to the
propriety of entering into this Agreement. Executive further acknowledges that
she is relying solely upon the contents of this Agreement, that there have been
no other representations or statements made by the Company and/or its affiliates
and subsidiaries, and that Executive is not relying on any other representations
or statements whatsoever of the Company and/or its affiliates and subsidiaries
as an inducement to enter into this Agreement, and if any of the facts upon
which Executive now relies in making this Agreement shall hereafter prove to be
otherwise, this Agreement shall nonetheless remain in full force and effect.
(l) Counsel. Executive acknowledges that she has personally read this
Agreement and that she has reviewed, or has had the opportunity to review, this
Agreement with legal counsel of her own choosing. Executive further acknowledges
that she has been provided a full and ample opportunity to study this Agreement,
that it fully and accurately reflects the content of any and all understandings
and agreements between the parties concerning the matters referenced herein,
that there have been no other representations or statements made by the Company
and/or its affiliates and subsidiaries, and that Executive is not relying on any
other representations whatsoever as an inducement to execute this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
AVADO BRANDS, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
EXECUTIVE
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Exhibits and schedules to this agreement are not filed pursuant to Item
601(b)(2) of SEC Regulation S-K. By the filing of this Form 10-Q, the Registrant
hereby agrees to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
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