Exhibit 10.55
EMPLOYMENT AGREEMENT
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AGREEMENT made this 2nd day of April, 2001, between Shells Seafood
Restaurants, Inc., a Delaware corporation with its principal office at 00000 X.
Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx (the "Company"), and Xxxxx Xxxx
(the "Executive"), residing at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000.
WHEREAS, the parties desire to enter into this Agreement in order to assure
the Company of the services of the Executive and to set forth the duties and
compensation of the Executive, all upon the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, representations and covenants contained herein, the parties hereto
agree as follows:
1. Duties. The Company shall employ the Executive, and the Executive
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shall serve, as Chief Executive Officer of the Company during the Employment
Term (as hereinafter defined). During the Employment Term, the Executive shall
perform such duties and functions as the Company's Board of Directors or Chief
Executive Officer shall from time to time determine and the Executive shall
comply in the performance of his duties with the policies, and be subject to the
direction, of the Board of Directors of the Company.
Except as may be expressly otherwise consented to in writing by the Board
of Directors, the Executive covenants and agrees to and shall devote his full
working time, attention and efforts toward the performance of his duties and
responsibilities hereunder. The Executive shall not, directly or indirectly,
without the prior written consent of the Company's Board of Directors or its
Chairman, as owner, partner, joint venturer, stockholder, employee, consultant,
corporate officer or director, engage or become financially interested in any
other duties or
pursuits which interfere with the performance of his duties hereunder, or which
even if non-interfering, may be inimical or contrary to the best interests of
the Company; provided, however, that Executive shall be permitted to remain a
member of the Board of Directors of Le Cormassier LLC until that company is sold
or Executive's interest in such company has been purchased; and provided,
further, that this provision does not prohibit the Executive from owning,
directly or indirectly, up to two percent (2%) of the outstanding capital stock
of any publicly traded company.
In addition to the above duties and functions, the Company will use its
best efforts to have the Board of Directors of the Company nominate Executive to
serve as a member of the Board of Directors, but without additional compensation
therefor. Executive shall also have the ability to recommend to the Board of
Directors that an additional person be nominated to serve on the Board of
Directors.
2. Term; Severance.
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a. The term of this Agreement and the term of employment (the
"Employment Term") of the Executive shall commence on April 2, 2001 and continue
for three years therefrom (the "Termination Date") unless sooner terminated in
accordance with the terms hereof; provided, however, that the Termination Date
(and, consequently, the Employment Term) shall be extended automatically for
successive one year periods unless either party hereto gives the other such
party written notice of its or his intention to terminate this Agreement, sixty
(60) days prior to the Termination Date (or, if applicable, any anniversary of
the Termination Date).
b. In the event the Company terminates the Executive's employment for
any reason other than cause (as defined in Section 5 hereof), the permanent
disability (as defined in
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Section 6 hereof) of the Executive, or the death of the Executive, or if the
Executive terminates his employment for good reason (as defined in Section 5
hereof), the parties agree that, provided Executive executes a general release
of all claims against the Company and abides by all restrictive covenants of
this Agreement including, without limitation, the provisions relating to non-
competition, non-solicitation and confidentiality, Executive shall be entitled
to receive as severance pay the then effective base salary of the Executive, for
a period commencing on any such date of termination and ending on the earlier of
(i) the one-year anniversary of such date or (ii) the date upon which Executive
commenced to be employed by another entity or person, in all such instances,
payable in equal installments in accordance with the Company's normal salary
payment policies. Further, in the event the Company terminates the Executive's
employment for any reason other than cause, the permanent disability of the
Executive or the death of the Executive, or the Executive terminates his
employment for good reason, the parties agree that the Company shall pay for
Executive's health insurance, life insurance and disability insurance as
provided in Section 3(g) of the Agreement for the period of time the Executive
is to receive severance pay under this Agreement. Any amounts so paid to the
Executive pursuant to the provisions of this Section 2(b) shall be in lieu of
any and all other payments due and owing to the Executive under the terms of
this Agreement or otherwise. In the event that the Company terminates
Executive's employment for "cause" (as defined in Section 5 hereof), or due to
the "permanent disability" of the Executive ( as defined in Section 6 hereof) or
the death of the Executive, or in the event the Executive terminates his
employment with the Company for any reason, the Executive shall not be entitled
to receive any further payment hereunder other than for accrued but unpaid
compensation and except as may be specifically otherwise provided in this
Section 2(b) or pursuant to any stock option granted to Executive by the
Company.
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3. Compensation.
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a. Salary. In each of the three years of the Employment Term,
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the Executive shall receive a base salary at the rate of $242,000 per annum, as
well as such bonuses as may be authorized from time to time by the Board of
Directors. The Executive's salary shall be payable in installments in accordance
with the Company's normal salary payment policies, and shall be subject to such
payroll deductions as are required by law or applicable employee benefit
programs.
b. Bonus. Executive shall be eligible for a minimum bonus of
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$24,200, payable on the first anniversary of the Executive's employment,
contingent upon the Executive achieving agreed upon milestones. Executive shall
be eligible for any other bonus plan or incentive compensation as approved by
the Board of Directors.
c. Expenses. In addition to the base salary provided for in
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Section 3(a) hereof, the Company shall reimburse the Executive, upon
presentation by the Executive of suitable documented expense accounts, for any
reasonable travel or other out-of-pocket business expenses, including reasonable
cellular telephone expenses and the purchase of a laptop computer, incurred by
the Executive in rendering the services hereunder on behalf of the Company and
which are incurred pursuant to the Company's expense reimbursement policies. The
Executive shall comply with restrictions and shall keep records in compliance
with the Company's policy and procedures related to travel and entertainment
expenses, and as may be otherwise required for tax or accounting purposes.
d. Stock Option Plan. The Executive shall participate in the
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Company's 1995 Employee Stock Option Plan, as amended, (the "Plan"). Under the
Plan, Executive shall receive options (the "Options") to purchase an aggregate
of 360,000 shares of the Company's
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common stock, $.01 par value per share (the "Common Stock"), available for
issuance under the Plan at an exercise price (the "Exercise Price") equal to the
per share price of the Common Stock on the date of the grant (or, if later, the
first date that the Executive is employed by the Company). Except as
specifically provided otherwise herein, the Option will vest over a four-year
period on a monthly basis; provided, however, that upon a Change in Control of
the Company (as hereinafter defined) (i) during the first two years of the
Employment Term, 50% of the unvested portion of the Option shall vest and (ii)
during, but subsequent to the second anniversary of, the Employment Term, the
entire unvested portion of the Option shall vest, upon the Change of Control. In
the event that, within one year of a Change of Control, Executive is terminated
without cause, Executive's job responsibilities are significantly altered or
diminished, or the principal location of the Company is relocated outside the
State of Florida, any remaining portion of the Option which did not vest upon
the Change in Control shall immediately vest. In addition, in the event the
Executive's employment is terminated by (x) the Company for any reason other
than (i) the death or permanent disability of Executive (as defined herein) or
(ii) for cause (as defined herein), or (y) the Executive for good reason (as
defined herein), in any such instance during the first twenty four months of the
Employment Term, 50% of the Option shall vest immediately. Furthermore, in the
event the Executive's employment is terminated due to the death or permanent
disability of Executive, the Option will thereupon immediately be vested for an
additional twelve months of vesting (or, if the Option is at that time 75% or
more vested, then the entire Option will thereupon immediately vest).
A "Change in Control of the Company" shall be deemed to occur if (i) there
shall be consummated (x) any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Common
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Stock, would be converted into cash, securities or other property, other than a
merger of the Company in which the holders of the Common Stock immediately prior
to the merger have not less than 80% of the ownership of common stock of the
surviving corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company, or
(ii) the stockholders of the Company shall approve any plan or proposal for
liquidation or dissolution of the Company, or (iii) any person (as such term is
used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) who, at the time of the execution of this
Agreement, does not own 5% or more of the Company's outstanding Common Stock,
shall become the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of 25% or more of the outstanding Common Stock other than pursuant
to a plan or arrangement entered into by such person and the Company, or (iv)
during any period of two consecutive years commencing on the date hereof,
individuals who at the beginning of such period constitute the entire Board of
Directors shall cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company's stockholders, of each
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.
Any shares of Common Stock purchased by Executive through the exercise of
the Option (all such purchased shares being referred to herein as the "Option
Shares") shall be subject to the rights and transfer restrictions reserved or
imposed by Sections 3(d)(i) and 3(d)(ii) of this Agreement.
(i) Repurchase of Option Shares. The Company shall have the right to
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repurchase any Option Shares owned by the Executive at the time of the
termination of his
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employment with the Company or thereafter acquired, if applicable, in all
instances in the event the Common Stock is not then publicly traded. The Company
may exercise its right to repurchase Option Shares by giving written notice of
same to the Executive (or his legal representative), with a copy as specified in
Section 10 hereof, within one (1) year following the date on which the
Executive's employment with the Company is terminated. If the Company exercises
its repurchase right, the purchase and sale of the Option Shares will occur at
the Company's principal office at the time and date specified in the Company's
notice, which shall be not less than ten (10) days nor more than sixty (60) days
after such exercise.
On or after the fourth anniversary date of this Agreement, provided that
either (a) Executive is then still employed by the Company, or (b) Executive's
employment with the Company was terminated by the Company other than for cause
(as defined herein) or by Executive for any reason, and provided that between
the date hereof and such date there has been no liquidity event and that at such
date the holders of a majority of the remaining shares of outstanding Common
Stock do not wish to attempt a liquidity event (in which event, such liquidity
event shall have occurred by the fifth anniversary of the date hereof), then
Executive shall have the right to compel the Company to repurchase any Option
Shares owned by the Executive at that time, or thereafter acquired, if
applicable, in all instances in the event the Company's Common Stock is not then
publicly traded. The Executive may exercise his rights to compel the Company to
repurchase Option Shares by giving written notice of same to the Company, with a
copy as specified in Section 10 hereof, within thirty (30) days after such
fourth anniversary date. If the Executive exercises his right to compel the
Company to purchase his Option Shares, the purchase and sale of the Option
Shares will occur at the Company's principal
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office at the time and on the date specified in the Executive's notice, which
shall be not less than ten (10) days nor more than sixty (60) days after such
exercise.
(ii) Transfer Restrictions. Except as otherwise specifically provided
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herein, no Option Shares may be conveyed, transferred, encumbered or otherwise
disposed of at any time when the Company's Common Stock is not then publicly
traded; provided, however, that upon the death of the Executive the Option
Shares may be conveyed by will or by the laws of descent and distribution,
subject, however, to the provisions of this Agreement. Any certificates for
shares covered by this Agreement shall contain a legend which states that such
shares are subject to the transfer and other restrictions imposed by this
Agreement.
(iii) Purchase Price. In the event that the Company or the Executive
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exercises its or his repurchase or put rights, as applicable, the price payable
by the Company for the Option Shares will be equal to the product of the fair
market value of the Company in its entirely, and the percent ownership of the
Company represented by the Option Shares ("Fair Market Value"). For this
purpose, the "Fair Market Value" of Option Shares will be determined as of the
date of exercise by the Company of its repurchase rights hereunder, so long as
such repurchase is consummated within sixty (60) days of exercise. Fair Market
Value shall be determined by a nationally-recognized, independent accounting
firm, which may be the independent accountants regularly employed by the
Company, appointed by the Board and reasonably acceptable to the Executive (or
the estate or legal representative of the Executive), in accordance with
generally accepted practices and standards. Notwithstanding the foregoing, (1)
if the Executive's employment is terminated for "cause" (as defined in Section 5
hereof), then the price payable for the Option Shares owned by the Executive
will be equal to the lesser of (A) the price the Executive paid therefor, and
(B) the aggregate Fair Market Value of the Option Shares
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determined in accordance with the appraisal described above (the "Appraised Fair
Market Value").
(iv) Payment of Purchase Price. The Company may pay the purchase
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price for the Option Shares repurchased hereunder in a single sum or, at its
option, in equal annual installments over a period of not more than three (3)
years; provided, however, that in no event shall the Company be obligated to
repurchase any shares to the extent funds are not legally available therefor
under applicable law; and provided, further, that any portion of an installment
payment which was not necessitated by such applicable laws (i.e., funds were
otherwise legally available to repurchase Option Shares), shall bear interest at
an annual rate equal to the prime rate charged by Citibank N.A., with any such
accrued interest being paid together with such annual installment. The
Company's purchase money obligation, if any, will be evidenced by a promissory
note, which note may be prepaid in whole or in part at any time. If applicable,
the Company may credit against the purchase price the amount, if any, of unpaid
principal and interest on the promissory note given by the Executive in
connection with his exercise of the Option shares.
(v) Accelerated Vesting. Notwithstanding anything to the contrary in
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the Company's stock option plan, grant agreement or any other document (other
than this Agreement), the Executive shall be entitled to accelerated vesting of
the Option as set forth in this Agreement.
e. Vacations. The Executive shall be entitled to up to four weeks of
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paid vacation in each calendar year, which vacation time shall accrue at a rate
of 1.66 days per month of employment. The Executive shall also be entitled to
the same standard paid holidays given by the Company to senior executives
generally, all as determined from time to time by the Board of
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Directors of the Company or an appropriate committee thereof. Vacation time
shall not cumulate from year to year.
f. Automobile. During the Employment Term, the Executive shall be
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entitled to an automobile allowance of $750 per month. Executive shall also be
reimbursed for reasonable expenses incurred for gasoline and insurance.
g. Health and Disability Insurance. Executive shall become eligible
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to participate in the Company's health benefit program on the first day of his
employment with the Company and shall be entitled to the same health and
disability insurance paid for by the Company to senior executives generally, all
as determined from time to time by the Board of Directors of the Company or an
appropriate committee thereof; provided, however, that Executive will be
provided with not less than $1,000,000 of term-life insurance paid for by the
Company, the beneficiaries of which share be designated by Executive, and a
disability insurance policy which provides coverage of sixty percent (60%) of
Executive's base salary.
h. Housing Allowance. During the Employment Term, the Executive
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shall be entitled to a housing allowance of $1,500 per month. Such arrangement
between the Executive and the Company will be reviewed every six months, but
shall not be reduced during the Employment Term unless Executive determines, in
his discretion, to relocate to an area near the Company's executive offices.
4. Place of Performance. In connection with his employment by the
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Company, and except for travel required for Company business, the Executive
shall be based at the principal executive offices of the Company, presently
located in the Tampa, Florida area or, from time to time, at the discretion of
the Company, at other locations utilized by the Company which are located within
100 miles of the Company's present executive offices.
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5. Termination by the Company or by Executive. (a) The Company may
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terminate Executive's employment at any time, upon notice by the Company to the
Executive, for cause or for any other reason which would not constitute cause.
Termination by the Company for "cause" shall mean termination because of: (a)
Executive's refusal to perform, or continual neglect of, his duties or
obligations hereunder (other than breaches of the covenants set forth in
Sections 1, 7 and 8 hereof which events are governed by clause (e) below), in
any such instance which is materially and demonstrably injurious to the Company
and which neglect or failure to act is not remedied within sixty (60) days after
written notice thereof to the Executive by the Company; (b) Executive's
conviction (which, through lapse of time or otherwise, is not subject to appeal)
of any crime or offense involving money or other property of the Company or any
of its subsidiaries or which constitutes a felony in the jurisdiction involved,
(c) Executive's performance of any act or his failure to act, for which if
Executive were prosecuted and convicted, would constitute a crime or offense
involving money or property of the Company or any of its subsidiaries, or which
would constitute a felony in the jurisdiction involved, (d) any attempt by
Executive to secure improperly any personal profit in connection with the
business of the Company or any of its subsidiaries, which individually or in the
aggregate is materially and demonstrably injurious to the Company and which, to
the extent such material and demonstrable injury is capable of being cured, is
not remedied within sixty (60) days after written notice thereof to the
Executive by the Company, (e) any breach by Executive of any of the terms of
Section 1, 7 or 8 of this Agreement, in any such instance which is materially
and demonstrably injurious to the Company and which breach is not remedied
within sixty (60) days after written notice thereof to the Executive by the
Company.
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(b) The Executive may terminate his employment with the Company at any
time, upon notice by the Executive to the Company for good reason or any other
reason which would not constitute good reason. Termination by the Executive for
"good reason" shall mean termination because of: (a) a material diminution of
the Executive's responsibilities or authority contemplated under this Agreement;
(b) the failure of the Company or any successor to assume and perform in any
material respect this Agreement; (c) reduction in or failure to pay in a timely
fashion (which shall include, in all cases other than intentional breach by the
Company, a five day grace period after notice thereof by Executive to the
Company) the Executive's annual base salary or other compensation or benefits
including but not limited to bonuses; (d) any requirement that the Executive be
based outside of the State of Florida during the Employment Term, unless the
Executive and the Company mutually agree to the Executive's relocation; or (e)
other than for a reason addressed by (a), (b) or (c), the Company terminates
this Agreement or breaches any term of this Agreement in any material respect;
and, in all such matters addressed by (a) - (e) above, following thirty days'
advance written notice given to the Company by the Executive which advises the
Company that the Executive believes that the Company has violated this Agreement
and specifies in reasonable detail the nature of the alleged breach, the Company
fails to cure the breach, or, if the cure cannot reasonably be effected within
such thirty day period, fails to advise the Executive that it intends to effect
a cure and commences such cure within such thirty day period.
6. Death; Disability. If the Executive shall die or become "permanently
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disabled" during the term of this Agreement, this Agreement and all benefits
hereunder shall terminate, except that such termination shall not affect the
Executive's right to accelerated vesting of the Option as set forth in Section 4
of this Agreement and any vested rights which the Executive
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may have at the time of his death pursuant to any insurance or other death
benefit plans or arrangements of the Company, which rights shall continue to be
governed by the provisions of such plans and agreements. For the purposes of
this Agreement, the Executive shall be deemed to be "permanently disabled" if,
during the term hereof, because of ill health, physical or mental disability, or
for other causes beyond the Executive's control, the Executive shall have been
unable, or unwilling, to perform the essential functions of his job hereunder
for ninety (90) consecutive days or for a total period of one hundred twenty
(120) days in any twelve month period during the term of this Agreement, whether
consecutive or not. Notwithstanding anything to the contrary contained herein,
during any period that the Executive fails to perform the essential functions of
his job hereunder as a result of his disability (but prior to the termination of
this Agreement as a result of such disability), (i) the Executive shall continue
to receive his full salary at the rate then in effect and all benefits provided
herein, provided that payments made to the Executive pursuant to this Section 6
shall be reduced by the sum of the amounts, if any, payable to the Executive at
or prior to the time of any such payment under any disability benefit insurance,
plan or program of, or provided by, the Company and (ii) the Company shall have
the right to hire any other individual or individuals to perform such duties and
functions as the Company shall desire, including those duties heretofore
performed by the Executive.
7. Protection of Confidential Information.
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a. The Executive acknowledges that his employment by the Company
will, throughout the term of this Agreement, bring him in contact with many
confidential affairs of the Company not readily available to the public, and
plans for future developments. In recognition of the foregoing, the Executive
covenants and agrees that he will not, directly or indirectly, use or
intentionally disclose or permit to be known to anyone outside of the Company
any
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confidential matters of the Company, except with the Company's prior written
consent or as required by court order, law or subpoena, or other legal
compulsion to disclose, with appropriate confidentiality obligations, when
reasonably necessary for the Executive to perform his job duties. In the event
that Executive shall be required by legal process to disclose any confidential
matter, Executive shall give the Company ten-days (or, if not reasonably
possible, such lesser number of days as is reasonably possible) prior written
notice prior to such disclosure.
b. All information and documents relating to the Company shall be the
exclusive property of the Company and the Executive shall use commercially
reasonable best efforts to prevent any publication or disclosure thereof. Upon
termination of the Executive's employment with the Company, all documents,
records, reports, writings and other similar documents containing confidential
information, including copies thereof, then in the Executive's possession or
control shall be returned and left with the Company.
c. The Executive will execute the form of Annual Questionnaire
Relating to Conflicts of Interest, Xxxxxxx Xxxxxxx, Questionable Payments,
Political Contributions, Violations of Law and Confidentiality in the form of
Exhibit A hereto, all the terms and provisions of which are incorporated herein
as if fully set forth herein.
8. Covenant Not To Compete; Non-Solicitation.
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a. The Executive agrees that during his employment by the Company
(which shall be deemed to include the period during which the Executive is
receiving any severance payments, as set forth in Section 2 hereof) and for the
twenty-four months immediately following the Employment Term (including any
extensions thereof, as provided herein), the Executive shall not either directly
or indirectly, (i) whether by establishing a new business or by joining an
existing one, and whether as a principal, employee, stockholder, officer,
director,
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broker, agent, consultant, corporate officer, licensor or in any other capacity,
compete with the Company in the seafood segment of the restaurant business or
become associated with a business enterprise which competes with any business
operation of the Company in the seafood segment of the restaurant business, or
any business operation of the Company in the seafood segment of the restaurant
business planned and known by the Executive prior to the Executive's termination
of employment, in the State of Florida and any other geographical areas in which
the Company then has market presence; provided, however, that if the Company
terminates Executive's employment without cause (as defined in Section 5 hereof)
or if Executive terminates his employment for good reason (as defined in Section
5 hereof), Executive shall not be subject to the provisions of this Section 8;
(ii) divert business from the Company or solicit, accept or procure business
from, divert the business of, or attempt to convert to other methods of using
the same or similar services or products as are provided by the Company, any
customer of the Company; (iii) interfere, in any manner, with the Company's
customer and vendor/supplier relationships; or (iv) solicit for employment,
employ or otherwise engage the services of, any employee or agent of the
Company, or any person who was an employee or agent of the Company within the
six months immediately preceding the cessation of Executive's employment with
the Company; it being understood and agreed that solely the establishment of or
relationship with another restaurant by Executive (to the extent permitted by
subsection (i) above), without further action, shall not be deemed to violate
the provisions of subsections (ii) and (iii) hereof.
A restaurant shall be deemed to be in the seafood segment of the
restaurant business if it holds itself out as primarily a purveyor of seafood by
means of the use of the term
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"seafood," "fish" or other term traditionally associated with a food source
which comes from the ocean waters (or any variation on any of the foregoing) in
its name or in its advertising.
b. The Executive and the Company intend that this covenant not to
compete shall be construed as a series of separate covenants, one for each
county and each product line. If, in any judicial proceeding, a court shall
refuse to enforce any one or more of the separate covenants deemed included in
subsection (a) of this Section 8, then such unenforceable covenant shall be
deemed severed from this Agreement for the purposes of such judicial proceeding
to the extent necessary to permit the remaining separate covenants to be
enforced.
c. The Executive acknowledges that the territorial and time
limitations set forth in this Section 8 are reasonable and properly required for
the adequate protection of the business of the Company and its subsidiaries. In
the event any such territorial or time limitation is deemed to be unreasonable
by a court of competent jurisdiction, the Executive agrees to the reduction of
the territorial or time limitation to the area or period which such court deems
reasonable.
d. The existence of any claim or cause of action by the Executive
against the Company shall not constitute a defense to the enforcement by the
Company of the foregoing restrictive covenants, but such claim or cause of
action shall be litigated separately.
9. Successors; Binding Agreement. This Agreement and all rights of the
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Executive hereunder shall inure to the benefit of, and shall be enforceable by,
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee
or other
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designee or, if there be no such designee, to the Executive's estate. This
Agreement shall bind any successors, purchasers, subsidiaries, affiliates and
assigns of the Company.
10. Notice. For the purposes of this Agreement, notices, demands and all
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other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered against receipt therefor or
three days after being mailed by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxx Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxx, Esq.
St. John, Wallace, Xxxxxxx & Xxxxx LLP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000-0000
If to the Company: Shells Seafood Restaurant, Inc.
00000 X. Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officers of the Company as may
be specifically designated by its Board of Directors. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by
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such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
12. Validity. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Entire Agreement. With the exception of the terms and conditions of
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the benefit and compensation plans applicable to the Executive, this Agreement
(together with the exhibit attached hereto) 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, by any
officer, employee or representative of any party hereto or any predecessor of
any party hereto.
14. Non-Assignability. This Agreement is entered into in consideration of
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the personal qualities of the Executive and may not be, nor may any right or
interest hereunder be, assigned by him without the prior written consent of
Company. It is expressly understood and agreed that this Agreement, and the
rights accruing and obligations owed to the Company hereunder, and the
obligations to be performed by the Company hereunder, may be assigned by the
Company to any of its successors or assigns.
15. Equitable Relief. The Executive recognizes that the services to be
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rendered by him hereunder are of a special, unique, extraordinary and
intellectual character involving skill of the highest order and giving them
peculiar value, the loss of which cannot be adequately compensated for in
damages. In the event of a breach of this Agreement by the Executive, the
Company shall be entitled to injunctive relief or any other legal or equitable
remedies. The remedies provided in this Agreement shall be deemed cumulative
and the exercise of one shall
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not preclude the exercise of any other remedy at law or in equity for the same
event or any other event.
16. Indemnification; Litigation Expenses.
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(a) In addition to any indemnification obligations the Company has or
may have toward the Executive under applicable law, the Company shall indemnify
the Executive for any and all costs, expenses, awards, claims, judgments,
attorneys' fees or any other damage or injury to the Executive for the
Executive's actual or alleged actions or failure to act during his employment
with the Company, in all instances in a manner consistent with this Agreement
and as permitted by applicable law, including the Executive's employment or
serving at the request of the Company as an officer or director of a subsidiary
or affiliate of the Company.
(b) In the event of litigation in connection with or concerning the
interpretation, breach of enforcement of this Agreement, the prevailing party
shall be entitled to recover all costs and expenses incurred by such party in
connection therewith, including reasonable attorneys fees.
17. Choice of Law. This Agreement is to be governed by and interpreted
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under the laws of the State of Delaware without regard to its conflict of laws
principles.
18. Representations And Agreements of the Executive. (a) The Executive
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represents and warrants that he is free to enter into this Agreement and to
perform the duties required hereunder, and that there are no employment
contracts or understandings, restrictive covenants or other restrictions,
whether written or oral, preventing the performance of his duties hereunder.
a. The Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required by
any insurance company in connection with the Executive's inclusion in any
insurance or fringe benefit plan or program
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as the Company shall be required hereunder or shall determine from time to time
to obtain, or in connection with, in the Company's sole discretion, the
Company's obtaining life insurance for its benefit on the life of the Executive.
19. Survival. The termination of the Executive's employment hereunder
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shall not affect the enforceability of Sections 2, 3, 7, 8, 9, 15, 16, 17 and 18
hereof.
20. 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 shall constitute one and the same instrument.
21. Headings. The Section headings appearing in this Agreement are for the
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purposes of easy reference and shall not be considered a part of this Agreement
or in any way modify, demand or affect its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first-above written.
Shells Seafood Restaurants, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board of Directors
Xxxxx Xxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
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