EMPLOYMENT AGREEMENT
THIS AGREEMENT between FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida
corporation (the "Company"), and XXXXX X. XXXXXXXXX, XX. (the "Executive"), is
made and entered into as of the 26th day of January, 1998.
P R E A M B L E :
The Company, on behalf of itself and its shareholders, wishes to attract
and retain well-qualified executives and key personnel and to assure itself of
the continuity of its management. The Executive currently holds the position of
Chief Executive Officer, and is a member of the Company's Management Executive
Committee. The Company recognizes that the Executive is a valuable resource of
the Company and the Company desires to be assured of the continued services of
the Executive.
The Company is concerned that in the event of a possible or threatened
change in control of the Company, uncertainties necessarily arise and the
Executive may have concerns about the continuation of his employment status and
responsibilities and may be approached by others offering competing employment
opportunities, and the Company therefore desires to provide the Executive
assurance as to the continuation of his employment status and responsibilities
in such event. The Company further desires to assure that, if a possible or
threatened change in control should arise and the Executive should be involved
in deliberations or negotiations in connection therewith, the Executive would be
in a secure position to consider and participate in such transaction as
objectively as possible in the best interests of the Company and, to this end,
desires to protect the Executive from any direct or implied threat to his
financial well being.
The Executive is willing to continue to serve as such but desires assurance
that in the event of such a change in control he will continue to have the
employment status and responsibilities he could reasonably expect absent such
event and in the event of a change in control he will have fair and reasonable
severance protection on the basis of his service to the Company to that time.
ACCORDINGLY, it is hereby agreed by and between the parties as follows:
1. Operation of Agreement. This Agreement shall constitute a valid and
binding contract between the parties immediately upon its execution and
supersedes any and all prior employment agreements (excluding any indemnity
agreements between the parties).
2. Change in Control. The date on which a Change in Control of the Company
shall occur shall be the "Trigger Date" for purposes of this Agreement. The term
"Change in Control" of the Company shall mean, and be deemed to have occurred on
the date of, the first to occur of any of the following:
(a) there occurs a change in control of the Company of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A
promulgated under the
Securities Exchange Act of 1934 as in effect on the date of this Agreement
(the "'34 Act") or, if Item 6(e) is no longer in effect, any regulations
issued by the Securities and Exchange Commission pursuant to the '34 Act
which serve similar purposes;
(b) any "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the '34 Act) is or becomes a beneficial owner, directly or indirectly,
of securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities;
(c) there occurs a change in control of the Board of Directors of the
Company, such that the individuals who were members of the Board of
Directors of the Company, or of any class into which it is divided,
immediately prior to a meeting of the shareholders of the Company involving
a contest for the election of directors shall not constitute a majority of
the Board of Directors, or of such class, following such election unless
the election, or the nomination and election of the new director was
approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period;
(d) the Company becomes a subsidiary of another corporation or shall
have merged into or consolidated with another corporation, or merged
another corporation into the Company, on a basis whereby less than 50% of
the total voting power of the surviving corporation is represented by
shares held by former shareholders of the Company prior to such merger or
consolidation;
(e) the Company shall have sold all or substantially all of its assets
to another corporation or other entity or person; or
(f) the liquidation of the Company.
3. Employment Prior to Trigger Date.
(a) The Company hereby agrees to employ the Executive as the Chief
Executive Officer of the Company and Employee hereby accepts such
employment and agrees to devote his best efforts and as much time as may be
necessary, during or after the regular working hours of the Company, to
perform his duties hereunder.
(b) During the term of this Agreement, the Executive shall perform the
duties typically performed by the Chief Executive Officer of the Company,
subject to direction of, and according to such policies and procedures as
may be adopted from time to time by, the Board of Directors. The Executive
shall report directly to the Board of Directors. Executive's duties and
responsibilities shall not be diminished or reduced, without the consent of
Executive.
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(c) During the term of this Agreement, the Company may from time to
time grant him options to acquire shares of the Company's common stock. The
award of any options shall be evidenced by an agreement containing usual
and customary provisions.
(d) This Agreement shall have an initial term of one year from the
date hereof.
(e) The initial annual salary of Executive shall be One Hundred Thirty
Thousand Dollars ($130,000) per annum payable in semi-monthly installments,
subject to increase at any time as determined by a majority of the
disinterested members of the Compensation Committee of the Board of
Directors of the Company. Executive shall be entitled to receive bi-weekly
reimbursement for, or seek direct payment by the Company of, such
reasonable expenses incurred by Executive as are consistent with specific
policies of the Company in the performance of his duties under this
Agreement, provided that Executive accounts therefor in writing and that
such expenses are ordinary and necessary business expenses of the Company
for federal income tax purposes.
(f) Executive shall be entitled to reasonable paid vacation in
accordance with the policies of the Company, and such other employee
benefits as the Board may fix from time to time; provided, however, that,
in the Executive's case, such employee benefits shall include comprehensive
medical, hospitalization and disability insurance and other reasonable
medical benefits in accordance with the policies of the Company, including
the cost of an annual physical examination. In addition, the Company shall
provide a bi- annual allowance of up to Twenty Thousand Dollars ($20,000)
(the "Allowance Amount") for the Executive's purchase of a new or used
automobile. The automobile shall be titled in the name of Executive and
shall remain Executive's property upon any termination of this Agreement.
If the automobile selected by Executive has a purchase price in excess of
the Allowance Amount, Executive shall be responsible for all amounts in
excess of the Allowance Amount. Furthermore, during the term of this
Agreement, the Company shall pay the expense of reasonable insurance for
such automobile (including, but not limited to collision, liability,
comprehensive and uninsured motorist coverage).
4. Post-Trigger Date Employment.
(a) Upon a Change in Control, the Executive, at his option, may resign
at any time within six (6) months following the Trigger Date and receive
the Termination Payments (as hereinafter defined) described in Section 7,
as if Executive had been terminated on the Trigger Date, or Executive may
elect to continue in the employ of the Company. If the Executive so elects,
the Company hereby agrees to continue the Executive in its employ, and the
Executive hereby agrees to remain in the employ of the Company, for the
period commencing on the Trigger Date and ending on the last day of the
month in which occurs the second anniversary of the Trigger Date (the
"Post-Trigger
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Employment Period"), subject to the Executive's aforementioned right to
resign in the six (6) month period following the Trigger Date.
(b) During the Post-Trigger Employment Period, Executive shall
exercise such position and authority and perform such duties as are
commensurate with the position and authority being exercised and duties
being performed by the Executive immediately prior to the Trigger Date,
which services shall be performed at the location where the Executive was
employed immediately prior to the Trigger Date or at such other location as
the Company may require not more than 20 miles from the present location.
The position, authority, duties and responsibilities of the Executive shall
be regarded as not commensurate if, as a result of a Change of Control, (i)
the Company becomes a direct or indirect subsidiary of another corporation
or corporations or becomes controlled, directly or indirectly, by one or
more unincorporated entities (such other corporation or unincorporated
entity owning or controlling, directly or indirectly, the Company is
hereinafter referred to as a "parent company") or (ii) all or substantially
all of the assets of the Company are acquired by another corporation or
unincorporated entity or group of corporations or unincorporated entities
owned or controlled, directly or indirectly, by another corporation or
unincorporated entity (such other acquiring or controlling corporation or
unincorporated entity is hereinafter referred to as a "successor"), unless,
in the case of either (i) or (ii), Section 14 of this Agreement shall have
been complied with and the Executive's position, authority, duties and
responsibilities with such parent company or successor, as the case may be,
are at least commensurate in all material respects with those held,
exercised and assigned with the Company immediately prior to the Trigger
Date.
(c) Excluding periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees that during the Post-Trigger
Employment Period he shall devote his full business time to his
responsibilities as described herein and shall perform such
responsibilities faithfully and efficiently. Notwithstanding the foregoing,
the Executive may (i) serve on corporate, civic or charitable boards or
committees, (ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (iii) manage personal investments, so long as
such activities do not materially interfere with the performance of the
Executive's duties and responsibilities. It is expressly understood and
agreed that to the extent that any such activities have been conducted by
the Executive prior to the Trigger Date, such prior conduct of activities,
and any subsequent conduct of activities similar in nature and scope, shall
not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company; provided, however, that the
provisions of this sentence shall in no manner be construed as limiting or
restricting the Executive to the conduct of such activities conducted
immediately prior to the Trigger Date.
5. Post-Trigger Compensation and Benefits. During the Post-Trigger
Employment Period, the Executive shall receive the following compensation and
benefits:
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(a) He shall receive an annual base salary which is not less than his
annual base salary immediately prior to the Trigger Date. During the
Post-Trigger Employment Period, the Executive's annual base salary shall be
reviewed at least annually and shall be increased from time to time to
reflect increases in the cost of living and such other increases as shall
be consistent with increases in annual base salary awarded in the ordinary
course of business to other key executives. Any increase in annual base
salary shall not limit or reduce any other obligation to the Executive
under this Agreement. In no case shall the annual base salary be reduced.
(b) He shall receive an annual bonus (either pursuant to a bonus or
incentive plan or program of the Company or otherwise) in cash at least
equal to the highest bonus paid or payable to the Executive in respect of
any of the three (3) fiscal years of the Company (annualized with respect
to any such fiscal year for which the Executive has been employed only for
a portion thereof) immediately prior to the fiscal year in which the
Trigger Date occurs. The annual bonus shall be payable within 30 days after
the end of each fiscal year, unless the Executive shall otherwise elect to
defer the receipt of such annual bonus.
(c) He shall be eligible to participate on a reasonable basis, and to
continue his existing participation, in annual incentive, stock option,
restricted stock, long-term incentive performance, and any other incentive
compensation plan which provides opportunities to receive compensation in
addition to his annual base salary which are the greater of (i) the
opportunities provided by the Company for executives with comparable duties
or (ii) the opportunities under any such plans in which he was
participating immediately prior to the Trigger Date.
(d) He shall be entitled to receive and participate in salaried
employee benefits (including, but not limited to, medical, life and
accident insurance, automobile allowance, stock ownership, and disability
benefits) and perquisites which are the greater of (i) the employee
benefits and perquisites provided by the Company to executives with
comparable duties or (ii) the employee benefits and perquisites to which he
was entitled or in which he participated immediately prior to the Trigger
Date.
(e) He shall be entitled to continue to accrue credited service for
retirement benefits and to be entitled to receive retirement benefits under
and pursuant to the terms of any retirement plan or agreement in effect on
the Trigger Date in respect of his retirement, whether or not a qualified
plan or agreement, so that his aggregate monthly retirement benefit from
all such plans and agreements (regardless when he begins to receive such
benefit) will be not less than it would be had all such plans and
agreements in effect immediately prior to the Trigger Date continued to be
in effect without change until and after he begins to receive such benefit.
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6. Termination. The term "Termination" shall mean termination, prior to the
expiration of the Post-Trigger Employment Period, of the employment of the
Executive with the Company for any reason other than death, disability (as
described below), cause (as described below), or voluntary resignation (as
described below). Any termination of Executive's employment shall be
communicated by a written Notice of Termination to the other party to this
Agreement specifying the "Termination Date".
(a) The term "disability" means physical or mental incapacity
qualifying the Executive for long-term disability under the Company's
long-term disability plan.
(b) The term "cause" means (i) the willful and continued failure of
the Executive substantially to perform his duties with the Company (other
than any failure due to physical or mental incapacity) after a demand for
substantial performance is delivered to him by the Board of Directors which
specifically identifies the manner in which the board believes he has not
substantially performed his duties or (ii) willful misconduct materially
and demonstrably injurious to the Company. No act or failure to act by the
Executive shall be considered willful unless done or omitted to be done by
him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company. The unwillingness of the
Executive to accept any or all of a change in the nature or scope of his
position, authorities or duties, a reduction in his total compensation or
benefits, a relocation that he deems unreasonable in light of his personal
circumstances, or other action by or request of the Company in respect of
his position, authority, or responsibility that he reasonably deems to be
contrary to this Agreement, may not be considered by the Board of Directors
to be a failure to perform or misconduct by the Executive. Notwithstanding
the foregoing, the Executive shall not be deemed to have been terminated
for cause for purposes of this Agreement unless and until there shall have
been delivered to him a copy of a resolution, duly adopted by a vote of a
majority of the entire Board of Directors of the Company at a meeting of
the Board called and held (after reasonable notice to the Executive and an
opportunity for the Executive and his counsel to be heard before the Board)
for the purpose of considering whether the Executive has been guilty of
such a willful failure to perform or such willful misconduct as justifies
termination for cause hereunder, finding that in the good faith opinion of
the Board, the Executive has been guilty thereof and specifying the
particulars thereof.
(c) The resignation of the Executive shall be deemed "voluntary" if it
is for any reason other than one or more of the following:
(i) The Executive's resignation or retirement is requested by the
Company other than for cause;
(ii) Any diminution in the nature or scope of the Executive's
position, authorities or duties from those described in Section 4 or
the assignment to Executive of any duties inconsistent with
Executive's existing position, duties and responsibilities;
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(iii) Any other reduction in his total compensation or benefits
from that provided in Section 5;
(iv) The breach by the Company of any provision of this
Agreement;
(v) The Executive resigns within six (6) month of the Trigger
Date pursuant to Section 4(a); or
(vi) The determination by the Executive that, as a result of a
Change in Control and a change in circumstances thereafter
significantly affecting his position, he is unable to exercise the
authorities and responsibilities attached to his position and
contemplated by Section 4.
For purposes of this Section 6(c), any good faith determination by the
Executive that any event set forth in clauses (i) - (vi) has occurred above
shall be conclusive.
(d) Termination that entitles the Executive to the payments and
benefits provided in Section 7 shall not be deemed or treated by the
Company as the termination of the Executive's employment or the forfeiture
of his participation, award, or eligibility for the purpose of any plan,
practice or agreement of the Company referred to in Section 5.
7. Termination Payments and Benefits. In the event of Termination, and
within 30 days following the Termination Date, unless this Section has been
previously amended pursuant to Section 13 hereof, the Company shall pay to the
Executive the following (the "Termination Payments"):
(a) His base salary and all other benefits due him through the
Termination Date, less applicable withholding taxes and other authorized
payroll deductions;
(b) The amount equal to the highest annual bonus paid to the Executive
in any of the previous three (3) fiscal years prior to the fiscal year in
which Termination occurs, reduced pro rata for that portion of the fiscal
year not completed as of the end of the month in which Termination occurs;
provided, however, that if the Executive has deferred his award for such
year, the payment due the Executive under this paragraph (b) shall be paid
in accordance with the terms of the deferral; and
(c) A lump sum severance allowance in an amount which is equal to the
sum of the amounts determined in accordance with the following
subparagraphs (i) and (ii):
(i) An amount equivalent to the Calculation Number (as defined
below) multiplied by his annual base salary at the rate in effect
immediately prior to Termination; and
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(ii) An amount equivalent to the Calculation Number multiplied by
the highest amount of the annual incentive compensation, including
annual bonus, received or deferred by the Executive for the three (3)
fiscal years immediately prior to the fiscal year in which Termination
occurs.
As used herein, the term "Calculation Period" shall mean two (2) fiscal years or
a period equal in length to that number of fiscal years, as the context shall
require, and the term Calculation Number shall mean two and one-half (2.5).
In addition to the foregoing, the Company shall pay or otherwise provide to the
Executive all of the following:
(d) The Company shall pay, distribute, and otherwise provide to the
Executive the amount and value of his entire plan account and interest
under any investment plan or stock ownership plan, and all employer
contributions made or payable to any such plan for his account prior to the
end of the month in which Termination occurs shall be deemed vested and
payable to him. Such payment or distribution shall be in accordance with
the elections made by the Executive in respect of distributions in
accordance with the plan as if the Executive's employment in the Company
terminated at the end of the month in which Termination occurs.
(e) During a period equal to the Calculation Period, the Company shall
pay the Executive pursuant to the terms of any long-term incentive
performance plan in which he was participating at the time of Termination
as if he continued to be a participant in the plan during that period, and
if pursuant to the terms of such plan no distributions therefrom become
vested until after the expiration of the Post-Trigger Employment Period,
then whenever distributions thereunder become vested, the Company shall pay
the Executive the amount or other distribution to which he would have been
entitled had his participation in the plan continued until the time
distributions become vested and are made pursuant to the plan.
(f) During a period equal to the Calculation Period, the Executive
shall continue to be deemed and treated as if he were an eligible employee
under the provisions of all stock option, stock appreciation right,
restricted stock, and other incentive compensation plans of the Company
under which he held options or awards or in which he participated at the
time of Termination, and he may exercise options and rights, and shall
receive payments and distributions accordingly.
(g) During a period equal to the Calculation Period, the Executive
shall continue to participate in and be entitled to all benefits and
credited service for benefits under the benefit plans, programs and
arrangements described in Sections 5(d) and 5(e) as if he remained employed
by the Company at the compensation levels referred to in this Section 7
during such period, exclusive however of disability benefits and any
aforesaid investment plan or stock ownership plan.
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(h) Upon the expiration of the Post-Trigger Employment Period, the
Executive shall be deemed to have retired from the Company and he shall be
entitled at that time, or at such later time as he may elect in order to
avoid or minimize any applicable early pension reduction provision, to
commence to receive the total combined retirement benefit to which he is
entitled hereunder.
(i) Section 5 shall be applicable in determining the payments and
benefits due the Executive under this Section 7, and if Termination occurs
after a reduction (which reduction occurs after the Trigger Date) in all or
any part of the Executive's total compensation or benefits, the monthly
severance allowance and other compensation and benefits payable to him
pursuant to this Section 7 shall be based upon his compensation and
benefits before the reduction.
(j) If any provision of this Section 7 cannot, in whole or in part, be
implemented and carried out under the terms of the applicable compensation,
benefit, or other plan or arrangement of the Company because the Executive
has ceased to be an actual employee of the Company, because he has
insufficient or reduced credited service based upon his actual employment
by the Company, because the plan or arrangement has been terminated or
amended after the Trigger Date of this Agreement, or for any other reason,
the Company itself shall pay or otherwise provide the equivalent of such
rights, benefits, and credits for such benefits to the Executive, his
dependents, beneficiaries and estate.
(k) The Company's obligation under this Section 7 to continue to pay
or provide health care and life and accident insurance to the Executive
during a period equal to the Calculation Period shall be reduced when and
to the extent any of such benefits are paid or provided to the Executive by
another employer, provided that the Executive shall have all rights
afforded to retirees to convert group insurance coverage to individual
insurance coverage as, to the extent of, and whenever his group insurance
coverage under this Section 7 is reduced or expires. Apart from this
paragraph (k), the Executive shall have and be subject to no obligation to
mitigate.
(l) The Company shall deduct applicable withholding taxes in
performing its obligations under this Section 7.
Nothing in this Section 7 is intended, or shall be deemed or interpreted, to be
an amendment to any compensation, benefit, or other plan of the Company. To the
extent the Company's performance under this Section 7 includes the performance
of the Company's obligations to the Executive under any such plan or under
another agreement between the Company and the Executive, the rights of the
Executive under such plan or other agreement, as well as under this Agreement,
are discharged, surrendered, or released pro tanto.
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8. Gross-Up of Termination Payments. In the event that the Executive
becomes entitled to the Termination Payments, if any of such payments are or
become subject to the tax (the "Excise Tax") imposed by Section 4999 of the
Internal Revenue Code of 1986, or any successor statute, rule or regulation of
similar effect (the "Code"), the Company shall pay the Executive within 30 days
of the Termination Date an additional amount (the "Gross-Up Payment") such that
the net amount retained by the Executive, after deduction of any Excise Tax on
the Termination Payments and the sum of any federal, state and local income tax
and Excise Tax upon the payment provided by this Section, shall be equal to the
Termination Payments. For the purposes of determining whether any of the
Termination Payments will be subject to the Excise Tax and the amount of such
Excise Tax, the following shall apply:
(a) any other payments or benefits received or to be received by the
Executive from the Company or one of its benefit plans in connection with a
Change in Control or in connection with Termination (from whatever source)
shall be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code;
(b) all "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax,
unless, in the opinion of tax counsel selected by the Company's independent
auditors and acceptable to the Executive, such other payments or benefits
(in whole or in part) described in clause (a) above do not constitute
parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code;
(c) the amount of the Termination Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of:
(i) the total amount of the Termination Payments; and
(ii) the amount of excess parachute payments within the meaning
of Sections 280G(b)(1) and (4) (after applying clauses (a) and (b)
above).
(d) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code;
(e) the Executive shall be deemed to pay federal income taxes, and
state and local income taxes in the state and locality of the Executive's
residence on the date of Termination, at the highest marginal rate of
income taxation in effect in the calendar year in which the Gross-Up
Payment is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local income
taxes; and
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(f) in the event the Excise Tax is subsequently determined to be less
than the amount taken into account hereunder at the time of the payment of
the Termination Payments, the Executive shall repay the Company the portion
of the Gross-Up Payment attributable to such reduction, or in the event
that the Excise Tax is subsequently determined to exceed the amount taken
into account hereunder at the time of the payment of the Termination
Payments (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional gross-up payment in respect of such
excess, in each case, payment to be made within 30 days after the final
determination of the amount of the reduction or excess, as the case may be,
together with interest thereon at the rate provided in Section
1274(b)(2)(B) of the Code.
9. Arrangements Not Exclusive or Limiting. The specific arrangements
referred to herein are not intended to exclude or limit the Executive's
participation in other benefits available to executive personnel generally, or
to preclude or limit other compensation or benefits as may be authorized by the
Board of Directors of the Company at any time, or to limit or reduce any
compensation or benefit to which the Executive would be entitled but for this
Agreement.
10. Enforcement Costs. The Company is aware that upon the occurrence of a
Change in Control, the Board of Directors or a stockholder of the Company may
then cause or attempt to cause the Company to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the Company
to institute, or may institute, litigation seeking to have this Agreement
declared unenforceable, or may take, or attempt to take, other action to deny
the Executive the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It is the
intent of the parties that the Executive not be required to incur the legal fees
and expenses associated with the protection or enforcement of his rights under
this Agreement by litigation or other legal action because such costs would
substantially detract from the benefits intended to be extended to the Executive
hereunder, nor be bound to negotiate any settlement of his rights hereunder
under threat of incurring such costs. Accordingly, if at any time after the
Trigger Date, it should appear to the Executive that the Company is or has acted
contrary to or is failing or has failed to comply with any of its obligations
under this Agreement for the reason that it regards this Agreement to be void or
unenforceable or for any other reason, or that the Company has purported to
terminate his employment for cause or is in the course of doing so in either
case contrary to this Agreement, or in the event that the Company or any other
person takes any action to declare this Agreement void or unenforceable, or
institutes any litigation or other legal action designed to deny, diminish or to
recover from the Executive the benefits provided or intended to be provided to
him hereunder, and the Executive has acted in good faith to perform his
obligations under this Agreement, the Company irrevocably authorizes the
Executive from time to time to retain counsel of his choice at the expense of
the Company to represent him in connection with the protection and enforcement
of his rights hereunder, including without limitation representation in
connection with termination of his employment contrary to this Agreement or with
the initiation or defense of any litigation or other legal action, whether by or
against the Executive or the Company or any director, officer, stockholder or
other person affiliated with the
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Company, in any jurisdiction. The reasonable fees and expenses of counsel
selected from time to time by the Executive as hereinabove provided shall be
paid or reimbursed to the Executive by the Company on a regular, periodic basis
upon presentation by the Executive of a statement or statements prepared by such
counsel in accordance with its customary practices. Counsel so retained by the
Executive may be counsel representing other officers or key executives of the
Company in connection with the protection and enforcement of their rights under
similar agreements between them and the Company, and, unless in his sole
judgement use of common counsel could be prejudicial to him or would not be
likely to reduce the fees and expenses chargeable hereunder to the Company, the
Executive agrees to use his best efforts to agree with such other officers or
executives to retain common counsel.
11. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be in writing and personally delivered by
hand or sent by registered or certified mail, if to the Executive, to him at the
last address he has filed in writing with the Company or, if to the Company, to
its corporate secretary at its principal executive offices.
12. Non-Alienation. The Executive shall not have any right to pledge,
hypothecate, anticipate, or in any way create a lien upon any amounts provided
under this Agreement, and no payments or benefits due hereunder shall be
assignable in anticipation of payment either by voluntary or involuntary acts or
by operation of law. So long as the Executive lives, no person, other than the
parties hereto, shall have any rights under or interest in this Agreement or the
subject matter hereof.
13. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the parties in respect of the subject matter hereof. Except as
hereinafter provided in this Section 13, no provision of this Agreement may be
amended, waived or discharged except by the mutual written agreement of the
parties. Notwithstanding the foregoing, Executive acknowledges and agrees that
the Board of Directors, at any time prior to a Change in Control, may in its
sole discretion, unilaterally amend this Agreement to modify or deny Termination
Payments pursuant to Section 7 hereof. The consent of any other person to any
such amendment, waiver or discharge shall not be required.
14. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Company, its successors or assigns, by operation of law or
otherwise, including without limitation any corporation or other entity or
person which shall succeed (whether directly or indirectly, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company, and the Company will require any parent company or
successor, by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform, or (in the case of a parent company)
to guarantee the performance of, this Agreement. Except as otherwise provided
herein this Agreement shall be binding upon and inure to the benefit of the
Executive and his legal representatives, heirs, and assigns, provided, however,
that in the event of the Executive's death prior to payment or distribution of
all amounts, distributions, and benefits due him hereunder, each such unpaid
amount and distribution shall be paid in accordance with this Agreement to the
person or persons designated by the
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Executive to the Company to receive such payment or distribution and in the
event the Executive has made no applicable designation, to the persons or
persons designated by the Executive as the residuary beneficiaries of his estate
if he dies testate or to his heirs at law under the intestate succession laws of
his state of domicile if he dies intestate.
15. Withholding of Taxes. The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
16. Governing Law. The validity, interpretation, and enforcement of this
Agreement shall be governed by the laws of the State of Florida.
17. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together constitute one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, the Company has caused these
presents to be executed in its name on its behalf, and its corporate seal to be
hereunto affixed and attested by its Secretary or Assistant Secretary, all as of
the day and year first shown above written.
FAMILY STEAK HOUSES OF FLORIDA, INC.
ATTEST:
By: /s/ XXXXXXX X. XXXXXXX /s/ XXXXXX X. XXXXXXXXX
----------------------------- -------------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxxx
Secretary Chief Financial Officer
EXECUTIVE:
/s/ XXXXX X. XXXXXXXXX
-------------------------------
Xxxxx X. Xxxxxxxxx, Xx.
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