EXHIBIT 10.2
SEPARATION AGREEMENT BETWEEN
CALIFORNIA PIZZA KITCHEN, INC
AND
XXXXXXXXX X. XXXX
This Separation Agreement (this "Agreement") sets forth the terms upon
which California Pizza Kitchen, Inc. (the "Company"), and Xxxxxxxxx X. Xxxx
("Executive"), have agreed to terminate Executive's employment with the Company
pursuant to and in accordance with the Severance Agreement dated as of March 31,
1998 between the Company and Executive (the "Severance Agreement"). All
capitalized terms which are not defined herein have the meanings set forth in
the Severance Agreement.
1. Termination. Effective July 24, 2003 (the "Termination Date"),
Executive shall resign from his position as President and Chief Executive
Officer of the Company and shall also resign from the Company's Board of
Directors and from the Board of Directors of LA Food Show, Inc.
2. Compensation. Executive will be paid a severance payment (the
"Severance Payment") in the amount of Six Hundred Thousand Dollars ($600,000).
The Severance Payment will be paid to Executive in installments on the Company's
regular payroll intervals through the Company's last payroll date in calendar
year 2003 and the amount of each installment will be calculated as though
Executive were receiving a Base Salary of Six Hundred Thousand Dollars
($600,000) per annum. The balance of the Severance Payment will be paid to
Executive in a lump sum on the Company's first regular payroll date in calendar
year 2004. Executive shall be entitled to be paid for any vacation time accrued
through the Termination Date in accordance with Company policy, and shall be
entitled to receive reimbursement for all expenses incurred prior to the
Termination Date. Executive shall not be entitled to receive any bonus
compensation or other amounts except as set forth in this Agreement.
3. Options. Executive has been granted options to purchase an aggregate of
200,000 shares of the Company's Common Stock, of which options to purchase an
aggregate of 62,500 shares are fully vested. All unvested options shall
terminate on the Termination Date. All vested options shall be exercisable by
Executive through close of business on July 23, 2006
4. Insurance Benefits; Computer.
(a) The Company shall: (i) make direct payments to the Company's
insurance carrier with respect to all COBRA premiums payable by Executive for
himself and his family members who were covered under the Company's group health
insurance plans immediately prior to the Termination Date; and (ii) pay
Executive an amount equal to the state and federal taxes payable by Executive as
a result of the Company's payment of such premiums, as calculated at an
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assumed combined rate of forty percent (40%). The Company's obligation to make
such payments shall terminate on the earliest of: (i) the 18-month anniversary
of the Termination Date; (ii) the date the Company has paid an aggregate of
Twenty Thousand Dollars ($20,000) pursuant to this Section 4(a); and (iii) the
date Executive first becomes eligible to participate in another employer's
health insurance plan.
(b) Executive shall be entitled to retain the laptop computer
purchased for him by the Company subject to the Company's prior verification
that no confidential or proprietary information relating to the Company is
contained thereon.
5. Press Release: Confidentiality. The parties will jointly prepare and
issue a press release describing Executive's departure from the Company which
will be issued no later than the Termination Date. The parties agree that after
execution hereof, the Company may announce internally to its employees that
Executive is terminating his employment effective on the Termination Date. Each
party agrees not to make any other public announcement with respect to
Executive's termination or to otherwise disclose or reveal any of the terms or
conditions of this Agreement to any person or entity other than to his spouse or
to his or its attorneys, accountants, auditors, and other financial advisors or
insurers (and even then only in confidence), except as expressly set forth
herein or as may be necessary to comply with the terms of this Agreement or any
lawful requirement or process of any court or governmental or administrative
entity, or to enforce his or its rights under this Agreement or to defend
against threatened claims by another party to this Agreement. Further, both the
Company and Executive may disclose to any and all persons, without limitation of
any kind, the U.S. federal tax treatment and tax structure of the transactions
contemplated by this Severance Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to either party
relating to such U.S. federal tax treatment and tax structure. Notwithstanding
the foregoing, any party may disclose the mere fact that Executive's employment
with the Company has been terminated.
6. Confidential Information. Executive acknowledges that the information,
observations and data obtained by him while employed by the Company concerning
the business and affairs of the Company and its affiliates ("Confidential
Information") are the property of the Company or such affiliate. Therefore,
Executive agrees that he shall not disclose to any unauthorized person or use
for his own account any Confidential Information without the prior written
consent of the Company's Board of Directors, unless and to the extent required
by law, rule or regulation or pursuant to any administrative or court order.
Notwithstanding the foregoing, Executive may disclose Confidential Information
which (i) has become generally available to the public other than as a result of
breach of this Agreement by Executive, or (ii) Executive is compelled to
disclose pursuant to a subpoena or an order of a court of competent
jurisdiction; provided that if Executive is required to disclose any
Confidential Information pursuant to clause (ii), Executive shall provide
advance written notice to the Company, to the extent possible, to allow the
Company to seek an appropriate protective order therefor.
7. Non-Solicitation. Executive agrees that from the date hereof and
continuing for a period of one year following the Termination Date, neither
Executive nor any person or entity directly or indirectly controlled by or under
common control with Executive will, directly or indirectly, solicit for
employment or attempt to solicit for employment any person who was an employee,
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officer or director of the Company at any time during the twelve months
preceding the date of the act of solicitation.
8. Release.
(a) Executive, on behalf of himself and his assigns, heirs, legal
representatives and agents, hereby releases and forever discharges the Company
and each of its past and present directors, shareholders, controlling persons,
officers, agents, Executives, legal representatives, attorneys, parents,
subsidiaries, affiliates, predecessors, successors, assigns, and attorneys and
each of them separately and collectively (hereinafter referred to separately and
collectively as the "Releasees") from: any and all claims, liens, demands,
actions, causes of action, suits, debts, contracts, promises, obligations,
damages, liabilities, losses, costs and expenses of any nature whatsoever, known
or unknown, in law or in equity, anticipated or unanticipated, conditional or
contingent (collectively, "Actions and Liabilities"), which Executive now owns
or holds, or at any time heretofore owned or held, or which Executive hereafter
can, shall or may own or hold against any of the Releasees, which in each case
arise out of or relate to Executive's employment by the Company, the termination
of Executive's employment, any status, term or condition of such employment,
Executive's service to the Company as a director, or any physical or mental harm
or distress from such employment or service or from termination of such
employment or service, including without limitation, (i) any and all claims
under California statutory or decisional law pertaining to wrongful discharge,
retaliation, breach of contract, breach of public policy, misrepresentation,
fraud or defamation; (ii) any and all claims under the California Fair
Employment and Housing Act, the California Labor Code (or any similar law or
regulation of the state in which I am employed), Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Executive Retirement
Income Security Act, the Fair Labor Standards Act and the Americans With
Disabilities Act; (iii) claims arising under any federal, state or local
statute, regulation, or ordinance prohibiting discrimination on the basis of
race, color, creed, religion, religious creed, sex, marital status, sexual
orientation, gender, veterans status, genetic characteristics, pregnancy,
childbirth or related medical condition, national origin, age, ancestry,
citizenship status, mental or physical disability/handicap, medical condition,
AIDS or related medical condition, arrest record, or other basis of
discrimination, any and all claims for costs, expenses or attorneys' fees; (iv)
any and all claims for costs, expenses or attorneys' fees; and (v) any claims to
rehire rights; provided, however, that claims for vested benefits and claims for
workers' compensation and unemployment insurance benefits are not waived.
(b) Nothing in the preceding Section 8(a) shall operate to
release, relieve, waive, relinquish, or discharge the Company from any
obligation it may have to indemnify Executive pursuant to California Labor Code
Section 2802 or Article IV of the Company's Amended and Restated Articles of
Incorporation.
9. Waiver. Executive expressly understands and agrees that the releases
contained in Section 8 fully and finally release and forever resolve the matters
released and discharged in such Section, including those which may be unknown,
unanticipated and/or unsuspected, and upon the advice of legal counsel, hereby
expressly waives all benefits under Section 1542 of the California Civil Code,
as well as under any other statutes or common law principles of similar effect,
to the extent that such benefits may contravene the provisions of Section 8.
Executive
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acknowledges that he has read and understands Section 1542 of the California
Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
10. Prior Assignment. Executive represents that he has not filed with any
government agency or court any claim against the Company relating to his
employment, termination of employment or otherwise. Executive covenants and
agrees that he will never, individually or with any person, or through any
agent, commence or prosecute against any Releasee any of the Actions and
Liabilities which are released in Section 8 of this Agreement. Executive further
agrees that he will not aid, assist, abet or in any way encourage any third
party or third-party entity to, in any way, pursue any Actions or Liabilities of
any kind against the Company or any Releasee unless he is specifically required
by law to engage in such activity. This Agreement shall be deemed breached
immediately upon the commencement or prosecution of any such Action or
Liability. Executive represents and warrants that he has not assigned or
otherwise transferred (voluntarily, involuntarily or by operation of law) any
right, title or interest in any Actions or Liabilities which he has, may have or
may have had which is the subject of the release in Section 8 hereof. Executive
agrees to indemnify, save and hold forever harmless the Releasees from any
Actions and Liabilities incurred as a result of any person or entity asserting
any claim pursuant to any such assignment or transfer. It is the intention of
the parties hereto that this indemnity does not require payment as a condition
precedent to recovery.
11. EEOC Actions. This Agreement recognizes the rights and responsibilities
of the Equal Employment Opportunity Commission ("EEOC") to enforce the statutes
which come under its jurisdiction and is not intended to prevent Executive from
filing a charge or participating in any investigation or proceeding conducted by
the EEOC; provided, however, that nothing in this section limits or affects the
finality or the scope of the release provided in Section 8, the waiver provided
in Section 9, the covenant not to xxx provided in Section 10 or the agreement to
submit claims to final and binding arbitration in Section 14.
12. Representations and Warranties. Each of the parties hereto warrants,
represents and agrees that in executing this Agreement:
(a) He or it has received independent legal advice from his or its
attorneys with respect to each aspect of this Agreement;
(b) He or it assumes the risk of any mistake of fact with regard
to any aspect of this Agreement; and
(c) He or it carefully has read and considered this Agreement in
its entirety and fully understands its contents and the significance of each of
its aspects.
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13. Escrow. Executive agrees that if he brings an action to challenge the
enforceability of this Agreement, he will tender to a neutral escrow, as
designated by the Company, all consideration that he received pursuant to this
Agreement.
14. Arbitration. Executive agrees that any future disputes between him and
the Company (the "parties"), including but not limited to disputes arising out
of or related to this Agreement, shall be resolved by binding arbitration,
except where the law specifically forbids the use of arbitration as a final and
binding remedy, or where Section 14(g) below specifically allows a different
remedy.
(a) The complainant shall provide the other party a written
statement of the claim identifying any supporting witnesses or documents and the
relief requested.
(b) The respondent shall furnish a statement of the relief, if
any, that it is willing to provide, and identifying supporting witnesses or
documents. If the matter is not resolved, the parties shall submit the dispute
to nonbinding mediation, paid for by the Company, before a mediator selected by
the parties.
(c) If the matter is not resolved through mediation, the parties
agree that the dispute shall be resolved by binding arbitration. If the parties
are unable to jointly select an arbitrator, they will obtain a list from the
Federal Mediation and Conciliation Service and select an arbitrator by striking
names from that list.
(d) The arbitrator shall have the authority to determine whether
the conduct complained of in Section 14(a) violates the complainant's rights
and, if so, to grant any relief authorized by law; subject to the exclusions of
Section 14(g) below. The arbitrator shall not have the authority to modify,
change or refuse to enforce any lawful terms of this Agreement.
(e) The Company shall bear the costs of the arbitration if
Executive prevails. If the Company prevails, Executive will pay the cost of the
arbitration. Each party shall pay his or its own attorneys' fees, unless the
arbitrator orders otherwise, pursuant to applicable law.
(f) ARBITRATION SHALL BE THE EXCLUSIVE FINAL REMEDY FOR ANY
DISPUTE BETWEEN THE PARTIES, SUCH AS DISPUTES INVOLVING CLAIMS FOR
DISCRIMINATION OR HARASSMENT (SUCH AS CLAIMS UNDER THE CALIFORNIA FAIR
EMPLOYMENT AND HOUSING ACT, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE
AMERICANS WITH DISABILITIES ACT, OR THE AGE DISCRIMINATION IN EMPLOYMENT ACT),
WRONGFUL TERMINATION, BREACH OF CONTRACT, BREACH OF PUBLIC POLICY, PHYSICAL OR
MENTAL HARM OR DISTRESS OR ANY OTHER DISPUTES, AND THE PARTIES AGREE THAT NO
DISPUTE SHALL BE SUBMITTED TO ARBITRATION WHERE THE COMPLAINANT HAS NOT COMPLIED
WITH THE PRELIMINARY STEPS PROVIDED FOR IN SECTIONS 14(a) AND (b) ABOVE.
(g) The parties agree that the arbitration award shall be
enforceable in any court having jurisdiction to enforce this Agreement, so long
as the arbitrator's findings of fact are supported by substantial evidence on
the whole and the arbitrator has not made errors of law; however, either party
may bring an action, including, but not limited to an action for injunctive
relief, in a court of competent jurisdiction, regarding or related to matters
involving the Company's Confidential Information, or regarding or related to
inventions that Executive may claim to have developed prior to or after joining
the Company, pursuant to California Labor
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Code section 2870 ("Disputes Related to Inventions"). The parties further agree
that for Disputes Related to Inventions which the parties have elected to submit
to arbitration, each party retains the right to seek preliminary injunctive
relief in court to preserve the status quo or prevent irreparable injury before
the matter can be heard in arbitration.
15. No Admissions. Each of the parties hereto understands and acknowledges
that this Agreement and the consideration transferred hereunder are being made
solely for the purpose of avoiding the expense and inconvenience of litigation
and it shall not be construed as an admission of any wrongful conduct or
liability whatsoever on the part of any party hereto.
16. Period for Review and Consideration of Agreement. Executive understands
that such Executive has been given a period of twenty-one (21) days to review
and consider this Agreement before signing it. Executive further understands
that he may use as much of this twenty-one (21) day period as Executive wishes
prior to signing. Executive represents that Executive consulted with his
attorney to the full extent that Executive so desired.
17. Executive's Right to Revoke Agreement. Executive may revoke this
Agreement within seven (7) days of the date Executive signs it. Revocation can
be made by delivering a written notice of revocation to Xxxx X. Xxxxxx at the
address set forth in Section 25. For this revocation to be effective, written
notice must be received no later than the close of business on the seventh day
after the date the Executive delivers an executed copy of this Agreement to the
Company (the "Delivery Date"). Such seventh day is referred to herein as the
"Release Date". If Executive revokes this Agreement it shall not be effective or
enforceable and Executive will not receive the benefits described in Sections 1,
2, 3, 4 and 5 hereof.
18. Entire Understanding; Amendments. No promise or inducement of any
nature has been made or given to any party other than those set forth in this
Agreement. This Agreement constitutes the entire agreement and understanding
between and among the parties hereto with respect to the subject matter hereof,
including without limitation, the release of any and all Actions and Liabilities
by or against the parties hereto, and supersedes all prior agreements,
representations and understandings, both written and oral, between and among the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended or modified except by a written instrument executed by all of the
parties hereto.
19. Further Assurances. Each of the parties hereto, acting by himself or
itself or through his or its respective attorneys, shall promptly prepare and
execute all documents and do all things necessary to consummate the agreements
set forth in this Agreement.
20. Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the assignees, licensees, heirs, executors, legal representatives,
successors and transferees of the entities and persons released hereunder,
whether by license, sale, merger, reverse merger, sale of stock, insolvency,
sale of assets, death, incapacity, operation of law, or, without limitation,
otherwise.
21. Interpretation. This Agreement has been negotiated at arms' length
between persons knowledgeable in the matters dealt with herein. Each of the
parties acknowledges that he or it has been represented throughout all
negotiations preceding the execution of this Agreement by
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experienced and knowledgeable legal counsel of his or its choice. Accordingly,
any rule of law, including, but not limited to, Section 1654 of the California
Civil Code, or any legal decision that would require interpretation of any
ambiguities in this Agreement against the party that has drafted it, is of no
application and is hereby expressly waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the intentions of the
parties and of this Agreement.
22. Governing Law. This Agreement has been executed in and shall be
governed by and construed in accordance with the internal laws of the State of
California without giving effect to the principles of conflicts of laws thereof.
23. Enforceability. If any provision of this Agreement is found,
determined, and/or adjudicated to be illegal, invalid or unenforceable, then
such provision shall be deemed to modified or restricted to the extent necessary
to make such provision valid, binding and enforceable, or, if such provision
cannot be modified or restricted in a manner so as to make such provision valid,
binding and enforceable, then such provision shall be deemed to be excised from
this Agreement and the validity, binding effect and enforceability of the
remaining provisions of this Agreement shall not be affected or impaired in any
manner.
24. No Waiver; Cumulative Remedies. No failure or delay on the part of any
party in exercising any right, power or remedy hereunder shall operate as a
waiver hereof; nor shall any single or partial exercise of any right, power or
remedy preclude any other or future exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
25. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered
and received five business days after having been deposited in the United States
Mail enclosed in a registered or certified post-paid envelope; one business day
after having been sent by overnight courier; when personally delivered on a
business day, or otherwise on the next succeeding business day thereafter; and
in each case addressed to the respective parties at the addresses set forth
below or to such other changed addresses the parties may have fixed by notice as
provided herein:
If to Executive: Xxxxxxxxx X. Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
Email: Xxxx@Xxxx.xxx
If to Company: California Pizza Kitchen
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
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With a copy to: Pillsbury Winthrop LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
26. Counterparts. This Agreement may be executed and delivered in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of July
15, 2003.
By: /s/ XXXXXXX X. XXXXXXXXXX
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Co-Chief Executive Officer
By: /s/ XXXXXXXXX X. XXXX
---------------------
Xxxxxxxxx X. Xxxx
Executive
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