EXHIBIT 10.17
July 15, 2002
Xxxxxx X. Xxxxxxx
000 Xxxxx XxXxxxx Xxxxx 000
Xxxxxxx, XX 00000
Dear Xxxxxx:
This letter will confirm our mutual agreement regarding the terms and
conditions of your separation from the employment of Chart House Enterprises,
Inc. ("Company"), effective August 9, 2002. In consideration for mutual promises
and conditions contained in this letter and the attached Waiver and Release
Agreement (the "Release Agreement, Exhibit B"), the receipt and sufficiency of
which is hereby expressly acknowledged by the parties, the Company shall provide
you with the following:
1. SEVERANCE COMPENSATION SCHEDULE. Severance compensation in the amount
of fifty-two weeks base pay and fifty-two weeks supplemental pay less applicable
federal, state and local taxes, will be paid to you upon your execution of this
letter and the Separation Agreement, and your completion of the other promises
you have made in this letter. All severance compensation paid pursuant to the
terms herein shall be paid in accordance with the Company's standard payroll
procedures and shall commence on the regularly scheduled payroll payment date
immediately following your execution of this letter agreement, the Release
Agreement and adherence to the various conditions set forth below. Except as
expressly set forth herein, the foregoing severance compensation is in lieu of
any other Company compensation or other money which may be payable to you and
shall not be further modified absent with written consent of the Company's
severance Pay plan Committee. Furthermore, should you accept employment either
directly or indirectly with Xxxxxx'x Restaurants, Inc., or any subsidiary or
affiliate thereof within two years of the execution of this agreement, at the
Company's option, you shall be obligated upon demand to repay to the Company all
base and supplemental severance pay which has been paid to you.
2. FINAL PAYCHECK. A final paycheck for services rendered through
August 9, 2002, less applicable federal, state and local taxes. Your final
paycheck will include all of your accrued but unused vacation pay.
You promise to do the following:
1. WAIVER AND RELEASE AGREEMENT. For consideration of signing the Waiver
and Release Agreement, you will receive ten (10) dollars. Upon signing, you will
deliver the Waiver and Release Agreement to us. You are free to have the Waiver
and Release Agreement reviewed by counsel if you wish. You may have up to 45
days for this purpose. Pursuant to federal law, there will be a seven-day
waiting period following your signature and delivery of the Waiver and Release
Agreement to us. Your severance compensation will be paid out at that time,
assuming that you have fulfilled your other promises in this letter.
2 NON-SOLICITATION AGREEMENT. In addition, you will be required to sign
the attached Non- Solicitation Agreement. Please enclose the Non-Solicitation
Agreement when you return the signed Waiver and Release Agreement.
3. RETURN OF COMPANY PROPERTY. On or before August 9, 2002 you will
deliver all Company property whatsoever which is in your custody or under your
control, including by way of example, all keys, identification cards, business
cards, credit cards and Company documents. A list of items, which are considered
to be Company Property, is attached to this letter as Exhibit A.
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4. TRAVEL AND EXPENSE REPORTS. On or before August 9, 2002, you will
submit to the Company all travel and entertainment expense reports relating to
any Company business expenses you have incurred. All such reports should be
completed in accordance with Company Policy. You will be personally responsible
for any dishonored amounts. You will not be reimbursed for any charges related
to Company business, which you have incurred on your Company credit card, but
rather, you should deliver the Company credit card statement to the Company for
payment as soon as it is received by you. If you have incurred any personal
charges on the Company credit card, such amounts will be deducted from your
severance. If you do not submit a travel and entertainment expense report by the
above date for all charges outstanding on your Company credit card, the charges
will be presumed to be personal and will be deducted from your severance.
In addition, you and the Company acknowledge the following:
1. MEDICAL INSURANCE. If you are a participant in the Company's group
insurance program, after the Effective Date of your termination, the Company
will no longer pay any portion of the cost related to your participation in the
Company group health insurance plan. You have the option under federal COBRA law
to remain covered under the Company group health insurance plan for up to 18
months following your separation from the Company, at your expense. If elected,
COBRA coverage begins the day after termination. Even though you have 60 days
from date of termination to elect coverage, once elected, you must pay premium
from date coverage begins. Then, you have 45 days from date of election to make
the first payment. The monthly rate is as follows:
Self Self+1 Family
- EPO - 251.91 / 453.44 / 629.77
- PPO - 296.36 / 533.46 / 740.91
You may not change levels of coverage, but you may drop dependents. Upon
termination Plan Handlers will mail to your home all information related to
COBRA Insurance
2. STOCK OPTIONS. If you have any stock options under any of the Company
stock option plans, you will receive a separate communication detailing the
status of your stock options.
3. 401(k) PLAN. If you are a participant in the Company's 401(k) Plan,
your account may be distributed to you in accordance with normal practices and
procedures. The amount distributed to you will be subject to income tax unless
you arrange for a transfer by the Plan Trustee to another qualified retirement
plan, such as an XXX. The Benefits Department will provide further information.
Please acknowledge your agreement with the terms of this letter agreement
by signing below and by executing the attached Release Agreement in the spaces
provided therein.
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We wish you the best of luck in your future endeavors.
Sincerely,
/s/ XXXXXXX X. XXXXXX
------------------------
Xxxxxxx X. Xxxxxx
Chief Financial Officer and President
I ACKNOWLEDGED AND AGREED TO THIS 12th DAY OF AUGUST 2002.
/s/ XXXXXX X. XXXXXXX
---------------------------
Xxxxxx X. Xxxxxxx
EXHIBIT A
LIST OF COMPANY PROPERTY
(Please X to indicate you have returned such items to the company, or indicate
"N/A" if not applicable.)
Page 4
/ / Cards - Business cards
/X/ Cards - Company credit cards
/ / Cards - Employee identification card
/X/ Cards - Phone calling cards
/ / Cards - Restaurant inspection/discount cards
/ / Cards - Security Access Cards
/ / Company documents - stationary
/ / Company documents - personnel files for any employees supervised
/ / Company documents - prep manuals
/ / Company documents - resource materials
/ / Company documents - project files
/ / Company documents - all other books, manuals, paperwork or computer files
related to the Company's business, which were received or generated during
the course of employment
/ / Equipment - Cellular Phone
/ / Equipment - Fax Machine
/ / Equipment - Computer (laptop and/or desk computer), monitor, peripherals
/ / Equipment - Micro-cassette recorder; video/audio recording devices
/ / Equipment - Pager
/ / Equipment - Phone
/ / Unissued Gift Certificates
/ / Gifts or samples received from vendors
/ / Keys
/ / Office furniture, equipment, decor and artwork
/ / Phone Line for Phone Number (____) _______________
/ / Phone Line for Phone Number (____) _______________
/ /
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/ /
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/ /
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/ /
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CHART HOUSE ENTERPRISES, INC.
EXHIBIT B
SEVERANCE PAY PLAN
Page 5
WAIVER AND RELEASE AGREEMENT
(1) In consideration for signing the Waiver and Release Agreement you will
receive ten (10) dollars. By signing, you will agree to the following:
Under the terms of the Chart House Enterprises, Inc. Severance Pay Plan
("Plan"), I, on behalf of myself and my heirs, executors, administrators,
attorneys and assigns, hereby waive, release and forever discharge Chart
House Enterprises, Inc. ("Company") and its parents, subsidiaries,
divisions and affiliates, whether direct or indirect, its and their joint
ventures and joint venturers (including its and their respective
directors, officers, associates, employees, shareholders, partners and
agents, past, present and future) and each of its and their respective
successors and assigns (collectively referred to as "Releasees"), from any
and all known or unknown actions, causes of action, claims or liabilities
of any kind that have or could be asserted against the Releasees arising
out of or related to my employment with and/or separation from employment
with the Company and/or any of the other Releasees and/or any other
occurrence up to and including the date of this Waiver and Release
Agreement, including but not limited to:
(a) claims, actions, causes of action or liabilities arising under Title
VII of the Civil Rights Act, as amended, the Age Discrimination in
Employment Act, as amended ("ADEA"), the Employee Retirement Income
Security Act, as amended, the Rehabilitation Act, as amended, the
Americans with Disabilities Act, as amended, the Family and Medical
Leave Act, as amended, and/or any other federal, state, municipal or
local employment discrimination statutes (including, but not limited
to, claims based upon age, sex, attainment of benefit plan rights,
race religion, national origin, marital status, sexual orientation,
ancestry, harassment, parental status, handicap, disability,
retaliation and veteran status); and/or
(b) claims, actions, causes of action or liabilities arising under any
other federal, state municipal or local statute, law, ordinance or
regulation; and/or
(c) any other claim whatsoever including, but not limited to, claims for
severance pay (other than claims for supplemental severance pay
under the Plan), claims based upon breach of contract, wrongful
termination, defamation, intentional infliction of emotional
distress, tort, personal injury, invasion of privacy, violation of
public policy, negligence and/or any other common law, statutory or
other claim whatsoever arising out of or relating to my employment
with and/or separation from employment with the Company and/or any
of the other Releasees,
but excluding the filing of an administrative charge, any claims I
may make under state workers' compensation or unemployment laws,
and/or any claims by law I cannot waive.
(2) I also agree never to xxx any of the Releasees or become a party to in a
lawsuit on the basis of any claim or any type whatsoever arising out of or
related to my employment with and/or separation from employment with the
Company and/or any of the other Releasees, other than a lawsuit to
challenge this Waiver and Release Agreement under the ADEA.
(3) I further acknowledge and agree that if I breach the provisions of
paragraph (2) above, then (a) the Company shall be entitled to apply for
and receive an injunction to restrain any violation of paragraph
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(2) above, (b) the Company shall not be obligated to continue payment of
the supplemental severance pay, if any, to me, (c) I shall be obligated to
pay to the Company its costs and expenses in enforcing this Waiver and
Release Agreement and defending against such lawsuit (including court
costs, expenses and reasonable legal fees), and (d) as an alternative to
(c), at the Company's option, I shall be obligated upon demand to repay to
the Company all but $500.00 of any supplemental severance pay, if any,
paid or made available to me. I further agree that the foregoing covenants
in this paragraph (3) shall not affect the validity of this Waiver and
Release Agreement and shall not be deemed to be a penalty or forfeiture.
(4) I further waive my right to any monetary recovery should any federal,
state or local administrative agency pursue any claims on my behalf
arising out of or related to my employment with and/or separation from
employment with the Company and/or any of the other Releasees.
(5) I further waive, release and discharge the Releasees from any
reinstatement rights, which I have or could have, and I acknowledge that I
have not suffered any on-the-job injury for which I have not already filed
a claim.
(6) I further agree that if I breach the Confidential Information, No
Solicitation of Employees or No Disparagement provisions of the Plan, then
(a) the Company shall be entitled to apply for and receive an injunction
to restrain such breach, (b) the Company shall not be obligated to
continue payment of any supplemental severance pay, and (c) I shall be
obligated to pay to the Company its costs and expenses in enforcing the
Confidential Information provisions of the Plan (including court costs,
expenses and reasonable legal fees).
(7) I acknowledge I have been given forty-five (45) days to consider this
Waiver and Release Agreement thoroughly and I was encouraged by the Plan
Committee to consult with my personal attorney, if desired, before signing
below.
(8) I understand I may revoke this Waiver and Release Agreement within seven
(7) days after its signing and that any revocation must be made in writing
and submitted within this seven-day period to the Plan Committee. I
further understand that if I revoke this Waiver and Release Agreement, I
shall not receive any supplemental severance pay under the Plan.
(9) I also understand that the supplemental severance pay, if any, which I
will receive under the Plan in exchange for signing, and not later
revoking, this Waiver and Release Agreement are in addition to anything of
value to which I am already entitled.
(10) I FURTHER UNDERSTAND THAT THIS WAIVER AND RELEASE AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
(11) I acknowledge and agree that if any provision of this Waiver and Release
Agreement is found, held or deemed by a court of competent jurisdiction to
be void, unlawful or unenforceable under any applicable statute or
controlling law, the remainder of this Waiver and Release Agreement shall
continue in full force and effect.
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(12) This Waiver and Release Agreement is deemed made and entered into in the
state in which I was employed by the Company and in all respects shall be
interpreted, enforced and governed under the laws of that state, except to
the extent superseded by federal law. Any dispute under this Waiver and
Release Agreement shall be adjudicated by a court of competent
jurisdiction in the state in which I was employed by the Company.
(13) I further acknowledge and agree that I have carefully read and fully
understand all of the provisions of this Waiver and Release Agreement and
that I voluntarily enter into this Waiver and Release Agreement by signing
below.
(14) If applicable, I also knowingly waive the provision of the California
Civil Code Section 1542, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Signed: /s/ XXXXXX X. XXXXXXX
---------------------------
Dated: August 12, 2002
PLEASE RETURN THE SIGNED AND DATED WAIVER AND
RELEASE AGREEMENT TO XXXXXXX X. XXXXXX
