EMPLOYMENT AGREEMENT
Agreement,
dated as of April 1, 2008 (the “Agreement”), by and between Shells Seafood
Restaurants, Inc., a Delaware corporation with its principal office at 00000
X.
Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (“Shells” or the "Company"),
and Xxxx Xxxxxxxxx (the "Executive"), currently residing at
[address].
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;
and
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 shall serve as the 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 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, 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. During the Employment Term, Executive shall relocate to and be
resident in the state of Florida.
2. Term;
Severance.
a. Term.
The
term of this Agreement and the term of employment (the "Employment Term") of
the
Executive shall commence April 14, 2008 and continue through April 13, 2011
(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 not to extend this Agreement, ninety (90) days prior to the
Termination Date (or, if applicable, any anniversary of the Termination
Date).
x. Xxxxxxxxx.
Except
as provided in Section 5(b) hereof, 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 Section 6 hereof) of the
Executive, or the death of the Executive, the parties agree that, provided
Executive executes a general release of all claims against the Company, its
officers, directors and affiliates, 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: (1) 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 six-month anniversary of such date or (ii) the date
upon
which Executive commenced to be employed by another entity or person (the
“Severance Period”), in all such instances, payable in equal installments in
accordance with the Company's normal salary payment policies, and (2) payment
of
the Executive’s and Executive’s eligible dependents’ COBRA continuation health
coverage premiums for the six month period following the date of termination
or,
if earlier, until the Executive and Executive’s dependents cease to be eligible
for such coverage or until the Executive commences employment with another
entity or person. 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.
It is agreed that subsequent to any such termination for which severance is
owed, the Executive shall in good faith reasonably assist during the Severance
Period in the transition to another person or persons selected to perform the
duties of the CEO/President of the Company; provided, however, that the
Executive shall not be required to devote any specified minimum amount of time
toward such transition activities. 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 that the Executive terminates the
agreement (as provided in Section 5(c) hereof), 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 pursuant
to
any stock option granted to Executive by the Company.
3. Compensation.
a. Salary.
During
the Employment Term, the Executive shall receive a base salary at the rate
of
$338,000 per annum (“Base Salary”), subject to any increases approved by the
Board of Directors or an appropriate committee thereof. The Executive's Base
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 guaranteed bonus of $40,000 in Executive’s
first year of employment. Executive shall be eligible for bonuses in subsequent
years in amounts, if any, to be determined in the sole discretion of the
Company’s Board of Directors or an appropriate committee thereof, based upon a
mutually agreed upon business plan which the Executive will present to the
Board
of Directors, or an appropriate committee thereof, within ninety (90) days
of
the commencement of Executive’s employment. All bonuses, if any, will be paid
within fifteen (15) days of the date that the Company receives its annual
audited financial statements from its independent certified public accountants
for the then applicable year. The Executive must be employed on the date that
the bonus is paid in order to be entitled to receive any bonus.
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c. Expenses.
In
addition to the Base Salary provided for in 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 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. Relocation
Expenses.
Executive shall relocate to Florida during the first month of the Employment
Term, and the Company shall reimburse Executive for reasonable expenses related
to such relocation, not to exceed $10,000.
e. Stock
Option Awards.
The
Company agrees that, on the date hereof, Executive shall be awarded an option
to
purchase 3,530,692 shares of the Company’s common stock. The option exercise
price per share will be equal to the closing price per share on the date hereof.
The option will vest in 36 equal monthly increments beginning April 30, 2008,
subject to the Executive’s continuing employment or service with the Company on
each applicable vesting date. The option will terminate if and to the extent
it
is not approved by the Company’s stockholders at the 2008 annual meeting. The
Company will use its reasonable efforts to ensure that such approval is
obtained. The stock option shall be governed by and subject to the terms and
conditions of a stock option agreement between the Company and the Executive,
substantially in the form annexed as Exhibit A hereto.
f. Vacations.
The
Executive shall be entitled to up to four weeks of paid vacation in each
calendar year. 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 Directors of the Company or an appropriate
committee thereof. No more than one week of vacation time shall cumulate from
year to year.
g. Automobile
and Housing.
During
the Employment Term, the Executive shall be entitled to a housing and automobile
allowance of $3,000 per month, plus maintenance, reimbursement for the cost
of
gasoline used for daily commutation to work and for business travel (all in
accordance with Section 3(c) hereof), and automobile insurance.
h. Life,
Health and Disability Insurance.
Executive shall be entitled to participate in the Company's health benefit
program and entitled to the same health, life 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.
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4.
Place
of Performance.
In
connection with his employment by the 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.
5.
Termination
by the Company or by Executive.
(a) Termination
by the Company.
The
Company may 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 thirty (30) 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 thirty (30) 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 thirty (30) days after written notice thereof to the Executive by the
Company.
(b) Change
in Control.
In the
event that, within six months of a Change in Control of the Company (as later
defined), (i) Executive is terminated without cause or (ii) Executive terminates
his employment with the Company due to (a) a significant diminution in
Executive’s job responsibilities or title or compensation or (b) the Executive
being required to relocate outside of the Tampa, Florida market (which shall
mean to a location which is more than 50 miles outside of the city borders
of
Tampa) and, in any such instance, provided the Executive executes a general
release of all claims against the Company, its officers, directors and
affiliates and abides by the provisions of Sections 7 and 8(a) (iii) and (iv)
hereof, then all the Executive’s unvested
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stock
options will vest immediately, and Executive shall be entitled to receive (1)
a
severance payment equal to six months’ then effective base salary, payable in
equal installments commencing from the date of the Change in Control, in
accordance with the Company’s then general salary payment policies, and (2)
payment of the Executive’s and Executive’s eligible dependents’ COBRA
continuation health coverage premiums for the six month period following the
date of termination or, if earlier, until the Executive and Executive’s
dependents cease to be eligible for such coverage or until the Executive
commences employment with another entity or person. Such payments, if any,
shall
be in lieu of any amount provided for in Section 2(b) hereof. For purposes
of
this Agreement, a “Change in Control” shall be deemed to have occurred if (i)
there shall be consummated (a) 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 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
50.1% of the ownership of common stock of the surviving corporation immediately
after the merger, or (b) 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 35% 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 a majority of the new
directors 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.
(c) Termination
by the Executive.
The
Executive may terminate his employment with the Company at any time, upon notice
by the Executive to the Company.
6.
Death;
Disability.
If the
Executive shall die or become "permanently disabled" during the term of this
Agreement, this Agreement and all benefits hereunder shall terminate, except
that such termination shall not affect any vested rights which the Executive
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.
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7.
Protection
of Confidential Information.
a.
Confidential
Information.
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 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, or when reasonably necessary during
Executive’s employment by the Company for the Executive to perform his job
duties hereunder. 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. Company
Property.
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, and any other Company property then in the Executive's
possession or control shall be returned and left with the Company.
c. Company
Policy.
The
Executive will execute the Company’s Annual Questionnaire Relating to Conflicts
of Interest, Xxxxxxx Xxxxxxx, Questionable Payments, Political Contributions,
Violations of Law and Confidentiality, all the terms and provisions of which
are
incorporated herein as if fully set forth herein.
8.
Covenant
Not To Compete; Non-Solicitation.
a. Covenant
Not to Compete.
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)
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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, broker, agent, consultant, corporate officer, licensor or in any
other
capacity, compete with the Company or any of its affiliates in the seafood
segment of the restaurant business or become associated with a business
enterprise which competes with any business operation of the Company or its
affiliates in the seafood segment of the restaurant business, or any business
operation of the Company or its affiliates 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), Executive shall not be subject to the provisions of this
Section 8; (ii) divert business from the Company or its affiliates 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 or its affiliates, any customer of the Company or its
affiliates; (iii) interfere, in any manner, with the Company's or its
affiliates’ 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 its affiliates, or any person who was an employee or agent of
the
Company or its affiliates within the six months immediately preceding the
cessation of Executive's employment with the Company. 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
“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. Divisibility.
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. Reasonableness.
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 and affiliates. 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. Independent
Obligation.
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.
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9.
Successors;
Binding Agreement.
This
Agreement and all rights of the 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 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 other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered against receipt therefore or three days after
being mailed by United States certified mail, return receipt requested, postage
prepaid, addressed as follows:
If
to the
Executive: Xxxx
Xxxxxxxxx
With
a
copy to:
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, 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 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.
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12.
Validity.
The
invalidity or unenforceability of any provision or 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 the benefit and compensation plans
applicable to the Executive, this Agreement sets forth the entire agreement
and
understanding of the parties hereto in respect of the subject matter contained
herein, and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, 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 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 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 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.
(a) Indemnification.
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) Litigation
Expenses.
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.
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17.
Choice
of Law.
(a)
This
Agreement is to be governed by and interpreted under the laws of the State
of
Florida without regard to its conflict of laws principles.
(b)
Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof or otherwise arising out of the Executive's employment or the
termination of that employment (including, without limitation, any claims of
unlawful employment discrimination whether based on age or otherwise) shall,
to
the fullest extent permitted by law, be settled by arbitration in any forum
and
form agreed upon by the parties or, in the absence of such an agreement, under
the auspices of the American Arbitration Association ("AAA") in Tampa, Florida,
in accordance with the Employment Dispute Resolution Rules of the AAA,
including, but not limited to, the rules and procedures applicable to the
selection of arbitrators. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This
Section 17 (b) shall be specifically enforceable. Notwithstanding the
foregoing, this Section 17 (b) shall not preclude either party from pursuing
a
court action for the sole purpose of obtaining a temporary restraining order
or
a preliminary injunction in circumstances in which such relief is appropriate;
provided that any other relief shall be pursued through an arbitration
proceeding pursuant to this Section 17 (b).
18.
Representations
And Agreements of the Executive.
The
Executive 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.
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 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 shall not affect the
enforceability of Sections 2, 3, 5, 7, 8, 9, 14, 15, 16, 17, 18, 19 and 20
hereof.
20.
Section
409A Delayed Payment Requirements.
Notwithstanding any provision to the contrary in this Agreement or in any
employee plan or other agreement, plan, policy or program of the Company, any
payment otherwise required to be made to the Executive on account of his
separation from service (including, without limitation, payments and benefits
payable under Section 2(b)), to the extent such payment is properly treated
as
deferred compensation subject to Section 409A of the Internal Revenue Code
of
1986 and the regulations and other applicable guidance issued by the Internal
Revenue Service thereunder, shall be delayed until the first business day after
the expiration of six months from the date of the termination of the Executive’s
employment or, if earlier, the date of his death. On the delayed payment date,
there shall be paid to the Executive (or his estate, as the case may be) in
a
single cash payment an amount equal to the aggregate amount of the payments
delayed pursuant to the preceding sentence. Notwithstanding the foregoing,
the
Executive shall be solely responsible, and the Company shall have no liability,
for any taxes, acceleration of taxes, interest or penalties arising under
Section 409A of the Code.
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21.
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.
22.
Headings.
The
Section headings appearing in this Agreement are for the 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 as of the
day
and year first written above.
SHELLS
SEAFOOD RESTAURANTS, INC.
By:
/s/
Xxxxxx X
Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board of Directors
/s/
Xxxx Xxxxxxxxx
Xxxx
Xxxxxxxxx
-00-
