MEXICAN RESTAURANTS, INC.
Exhibit
10.1
MEXICAN
RESTAURANTS, INC.
0000
Xxxxxxxxx
Xxxxxxx,
Xxxxx 00000-0000
December
1, 2006
Xx.
Xxxx
Xxxxxxxx
0000
Xxxx
Xxxxx
Xxxxxxxx,
XX 00000
Dear
Xxxx,
Please
know that the Board of Directors and your management team at Mexican
Restaurants, Inc. (collectively, with its subsidiaries, the “Company”)
truly
appreciate your efforts on behalf of the Company, the results of which are
reflected in the Company’s operating performance under your leadership. We wish
you continued success in subsequent ventures.
Please
permit this letter to evidence our agreements with you concerning the
termination of your employment relationship with the Company. The severance
compensation described below is made available to you by the Company with
respect to the termination of your employment, provided you agree to the terms
of this Separation Agreement and General Release (this "Agreement").
I.
|
This
Agreement is made between the Company and Xxxx Xxxxxxxx ("Employee",
"You"
or "I").
Unless the Company and You enter into this Separation Agreement and
General Release, You do not have a right to any of the extra severance
benefits described in this document. However, in consideration for
You
agreeing to these terms, as described below, the Company will provide
You
with the following:
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Separation
Compensation:
1.
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All
accrued salary through the termination date, less standard withholding.
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2.
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An
aggregate cash payment of $596,764 with respect to Employee’s stock
options as vested through December 15, 2006, which the parties to
this
letter agree are conclusively set forth on Exhibit
“A”,
less standard withholding, calculated based upon the difference between
$10.50 per share and the per share exercise prices of such vested
stock
options. Such payment shall be made by the Company on or before December
31, 2006.
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3.
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Conversion
or continuation of insurance coverage shall be in accordance with
the
provisions of the applicable insurance plans and law. COBRA notification
will be provided separately. You will be eligible for continuation
of
health coverage (medical and dental) under
COBRA.
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II.
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In
return for the benefits listed in this Agreement, the undersigned
Employee
agrees to the following:
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I
agree,
on behalf of myself and all of my heirs or personal representatives, to release
the Company, its predecessors and successors, all affiliates, and all of their
present or former directors, officers, agents, partners, employees, employee
benefit programs, and the trustees, administrators, fiduciaries and insurers
of
such programs, (collectively hereafter, the “MRI
Group”)
from
any and all claims for relief of any kind, whether known to me or unknown,
and
concerning events occurring at any time up to the date of this agreement,
including, but not limited to those that in any way arise out of or relate
to my
employment or the termination of my employment with the Company, any and all
claims of discrimination of any kind, including, but not limited to claims
of
discrimination due to sex, age, race, ethnicity, color, religion, national
origin, disability, marital status, sexual orientation or political affiliation,
and any contractual, tort or other common law claims. This settlement and waiver
includes all such claims, whether under any applicable federal laws, including,
but not limited to, the Age Discrimination in Employment Act, Title VII of
the
Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the
Americans with Disabilities Act, the Fair Labor Standards Act, the Equal Pay
Act, the Worker Adjustment and Retraining Notification Act, the Employee
Retirement Income Security Act of 1974 (“ERISA”),
the
Family and Medical Leave Act, the Xxxxxxxx-Xxxxx Act of 2002, each as amended,
or under any other applicable federal, state or local laws or ordinances or
any
other legal restrictions on the Company’s rights, including but not limited to
the Texas Commission on Human Rights Act. I further agree not to file a suit
of
any kind against the MRI Group relating to my employment or to participate
voluntarily in any employment-related claim brought by any other party against
the MRI Group. I understand that this Agreement effectively waives any right
I
might have to xxx the MRI Group for any claim arising out of my employment
or
the termination thereof.
This
Agreement shall not be construed as releasing or affecting any claim I may
have
for benefits vested under any ERISA or pension plan. Nothing in this Agreement
is meant to waive any right I may have for unemployment benefits from the State
of Texas or to elect COBRA continuation coverage.
I
expressly agree and acknowledge that this Release is intended to include in
its
effect, without limitation, all claims relating in any manner to my employment
or the termination of my employment with the Company that I do not know or
suspect to exist in my favor at this time.
III.
|
In
consideration for the Company’s agreements set forth above, I agree that I
shall not do any of the following, during the twenty-four (24) -month
period following December 15, 2006, whether directly or indirectly,
personally or through others:
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a.
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Hire,
attempt to hire, contact or solicit with respect to hiring on behalf
of
any person or entity any employee (as defined below) of the
Company;
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b.
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Seek
or encourage any present or future vendor, supplier, distributor,
customer
or investor to terminate or otherwise alter his, her or its relationship
with the MRI Group;
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c.
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Disparage
the MRI Group, its officers, directors, employees or former officers,
directors and employees.
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For
purposes of this Article
III,
the
term “employee” shall mean any individual employed by the Company at or after
the execution of this Agreement or within six (6) months prior to such contact,
solicitation, recruitment or hiring.
IV.
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I
acknowledge the receipt from the Company of confidential, proprietary
and
restricted information, and recognize that it is critically important
to
the Company that such information be protected from disclosure or
use by
any person or entity without the Company’s express permission. While I
understand that I have had such an obligation since I began my employment
with the Company, I confirm in this Agreement that I shall not disclose
any confidential, proprietary or restricted information of the Company,
and shall not make use of such confidential, proprietary or restricted
information in any manner at any time. I further agree to make myself
reasonably available to the MRI Group or its attorneys for consultation
and information regarding any Company legal matters or investigations
that
may arise, and to provide only truthful information.
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V.
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I
acknowledge that this Agreement and General Release does not constitute
an
admission of any kind by the Company, but is simply an accommodation
that
offers certain extra benefits to which I would not otherwise be entitled
in return for my agreeing to and signing this
document.
|
I
understand and agree that if I violate this Agreement and General Release,
I am
subject to forfeiture or repayment of these extra benefits, and any damages
incurred by the Company.
To
the
extent I have not already done so, I agree to immediately return to Mexican
Restaurants, Inc. (Attention: Chief Financial Officer) any and all Company
documents and other property of the Company regardless of media
form.
I
understand that I may have up to twenty-one (21) days from the date of this
letter to consider this Agreement and have been encouraged and am again hereby
advised by the Company to consult with an attorney prior to its execution.
I
understand that if I sign this Agreement and Release, I will then have seven
days to cancel it if I so choose. I acknowledge that I may cancel this Agreement
by delivering a timely written notice of cancellation to Xxxxxx X. Xxxxxxx,
Chief Financial Officer of the Company. However, if I elect to cancel this
Agreement, I understand I will not be entitled to any of the extra severance
benefits. I realize this Agreement is not effective or enforceable until the
seven-day period expires without revocation.
I
am
entering into this Agreement freely and voluntarily, and I am satisfied that
I
have been given sufficient opportunity to consider it and consult with legal
counsel. I have carefully read and understand all of the provisions of this
Agreement. I understand that it sets forth the entire Agreement between the
Company and me, and I represent that no other statements, promises, or
commitments of any kind, written or oral, have been made to me by the Company
to
cause me to accept it. I acknowledge acceptance of this Agreement by my
signature below.
(Signature
page follows)
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12/1/06
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/s/
Xxxx Xxxxxxxx
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|
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Date
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Xxxx
Xxxxxxxx
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Agreed
to and accepted on behalf of Mexican Restaurants,
Inc.:
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12/1/06
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By:
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/s/
Xxxxx X. Xxxx
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Date
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Printed
Name:
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Xxxxx X. Xxxx |
Title:
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Chairman
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EXHIBIT
“A”
Stock
Option Summary
Options
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Cash
Payment*
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|||
Vested
stock options for 36,000 shares exercisable for $8.625 per
share
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$
|
50,859
|
||
Vested
stock options for 28,000 shares exercisable for $4.313 per
share
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$
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173,236
|
||
Vested
stock options for 90,000 shares exercisable for $2.70 per
share
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$
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372,668
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||
Total
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$
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596,764
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*Based
on
the difference between the per share exercise price and $10.50 per share
multiplied by the number of vested options. Such cash payment shall be made
net
of standard withholding.
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