MUTUAL RELEASE
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MUTUAL RELEASE AGREEMENT dated as of September 30, 1998 (the "Agreement")
by and between Xxxx-Xxxxxx Xxxxxx, an individual (the "Employee") and BFX
Hospitality Group, Inc., a Delaware corporation having a principal address at
000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000 ("BFX"). BFX and Employee
may be collectively referred to as the "Parties" or individually as a "Party."
PRELIMINARY STATEMENT
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A. Employee and BFX entered into an Employment Agreement dated as of
April 11, 1997 (the "Employment Agreement").
B. Pursuant to a Letter Agreement dated as of September 30, 1998 by and
between the Parties, a copy of which is attached hereto (the "Letter
Agreement"), the Parties have agreed, among other matters, to terminate the
Employment Agreement.
NOW, THEREFORE, the Parties for good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged and intending to
be legally bound, hereby agree as follows:
1. Employee Release of BFX. Employee hereby fully, forever, irrevocably
and unconditionally releases, remises and discharges BFX, its officer,
directors, stockholders, corporate affiliate, agents and employees from any and
all claims, charges, complaints, demands, actions, causes of action, suits,
rights, debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreement, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every kind
and nature which he ever had or now has against BFX, its officers, directors,
stockholder, corporate affiliates, agents and employees, including, but not
limited to, all claims arising out of his employment pursuant to the Employment
Agreement or resignation from employment, all employment discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. (S)2000e et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. (S) 621 et seq., and damages
arising out of all employment discrimination claims, wrongful discharge claims,
breach of fiduciary duty claims, breach of contract claims or other common law
claims and damages, excepting only the obligations of BFX under the Letter
Agreement. Employee hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against BFX, based upon any matter
purported to be released hereby.
2. Employee Acknowledgments. Employee acknowledges that he has been
given twenty-one (21) days to consider this Agreement and that BFX has advised
him to consult with an attorney of his own choosing prior to signing this
Agreement. Employee may revoke this Agreement for a period of seven (7) days
after the execution of this Agreement, and the Agreement shall not be effective
or enforceable until the expiration of this seven (7) day revocation period.
3. BFX Release of Employees. BFX hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges employee, his successor, heirs
and assigns, from any and all claims, charges, complaints, demands, actions,
causes of action, suits, rights, debts, sums of money, costs, accounts,
reckonings, covenants, contracts, agreement, promises, doings, omissions,
damages, executions, obligations, liabilities and expenses (including attorneys'
fees and costs), of every kind and nature which BFX ever had or now has against
Employee, his successors, heirs and assigns, and which are now known or unknown
by BFX, including but not limited to, all claims arising out of his employment
relationship with BFX pursuant to the Employment Agreement. Nothing in this
Agreement shall be construed as releasing Employee from obligations of the
Employee under the Letter Agreement. BFX hereby irrevocably covenants to refrain
from, directly or indirectly, asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against
Employee, based upon any matter purported to be released hereby.
4. BFX Indemnification of Employee. Without in any way limiting any of
the rights and remedies otherwise available to Employee, BFX shall indemnify and
hold harmless Employee from and against all loss, liability, claim, damage
(including incidental and consequential damages) or expenses (including costs of
investigation and defense and reasonable attorney's fees) whether or not
involving third party claims, arising directly or indirectly from or in
connection with (i) the assertion by or on behalf of BFX of any claim or other
matter purported to be released pursuant to this Agreement, and/or (ii) the
assertion by any third party of any claim or demand against BFX or Employee
which claim or demand arises directly or indirectly from, or in connection with
any claim or other matter purported to be released by BFX pursuant to this
Agreement.
5. Invalid Provision. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
6. Modification - Gender. This Agreement may not be changed except in a
writing signed by the Party against whose interest such change shall operate.
This Agreement shall be governed by and construed under the laws of the State
of Delaware without regard to principles of conflicts of law. All words used in
this Agreement will be construed to be of such gender or number as the
circumstances require.
7. Voluntary Assent. The Parties hereby affirm that other than with
respect to the Letter Agreement, no other promises or agreements of any kind
have been made to or with them by any person or entity whatsoever to cause them
to sign and deliver this Agreement, and that they fully understand the meaning
and intent of this Agreement. The Parties state and represent that they have
had an opportunity to fully discuss and review the terms of this Agreement with
an attorney. The Parties further state and represent that they have carefully
read this Agreement, understand the
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contents herein, freely and voluntarily assent to all of the terms and
conditions hereof, and sign their names of their own free act.
BFX HOSPITALITY GROUP, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx
Chief Executive Officer
/s/ XXXX-XXXXXX XXXXXX
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Xxxx-Xxxxxx Xxxxxx
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