Exhibit 10(v)
SEVERANCE AGREEMENT
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AND GENERAL RELEASE
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This Severance Agreement and General Release ("Agreement") is entered
into as of June 21, 2001 by and between Xxxxx X. XxXxxxxx ("Executive"), on the
one hand, and Prandium, Inc., a Delaware corporation ("Prandium", formerly known
as Xxx Xxx Roo Enterprises, Inc. ("KKRE")). Chi-Chi's, Inc., a Delaware
corporation ("Chi-Chi's") and Xxx Xxx Roo. Inc., a Delaware corporation ("KKR")
(Prandium, Chi-Chi's and KKR are hereinafter collectively referred to as the
"Company", and the Company and Executive are collectively referred to
hereinafter as the "Parties").
RECITALS
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WHEREAS, Executive has been employed by the Company as Executive Vice
President of Prandium and President of KKR, pursuant to an Employment Agreement
with the Company dated November 1, 1998 (the "Employment Agreement");
WHEREAS, Executive wishes to voluntarily terminate her employment with
the Company effective June 22, 2001;
WHEREAS, pursuant to the terms of the Employment Agreement the Company
is not obligated to pay and Executive is not entitled to receive any severance
payment whatsoever upon her resignation from the Company; and
WHEREAS, the Company has determined that it would be in the best
interest of the Company and its shareholders to offer Executive a severance
package, in exchange for Executive's full release of claims against the Company
and the other covenants and agreements contained herein.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are expressly acknowledged, the Parties agree and promise
as follows:
1. EXECUTIVE'S TERMINATION.
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Pursuant to the Agreement, Executive's employment with Company
and all subsidiaries thereof is terminated effective June 22, 2001 (the
"Separation Date").
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2. SEVERANCE PAYMENT.
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a. In consideration of Executive's release of claims and
Executive's other covenants and agreements contained herein and provided that
Executive has not exercised any revocation rights as provided in Section 4,
below, the Company shall pay Executive as a severance benefit (the "Severance
Benefit") the following amounts on the following specified payment terms: (A)
$209.475, which amount equals Executive's base annual salary to be paid to
Executive in the following manner: (1) $108,765.87 payable in accordance with
the Company's 2001 bi-weekly payroll payment schedule for the period beginning
June 23, 2001 through December 23, 2001, and (ii) $100,709.13 to be paid in a
lump sum on January 4, 2002, all payments less all applicable federal, state and
local taxes and other normal payroll deductions, and (B) $18,000, which amount
equals Executive's car allowance at the rate in effect on the Separation Date,
to be paid in the following manner: (i) $9,346.15 payable in accordance with the
Company's 2001 bi-weekly payroll payment schedule for the period beginning June
23, 2001 through December 23, 2001, and (ii) $8,653.85 to be paid in a lump sum
on January 4, 2002, all payments less all applicable federal, state and local
taxes; and (C) $39,900, which amount equals Executive's annual incentive award
amount earned in 2000, to be paid in a lump sum on January 4, 2002, less all
applicable federal, state and local taxes. In addition, as a Severance Benefit,
the Company shall continue to provide Executive with medical benefits
substantially similar to those medical benefits Executive received from the
Company immediately prior to the Separation Date for the period June 22, 2001 to
June 21, 2002, provided, however, in lieu of providing Executive with basic long
term disability insurance coverage from and after the Separation Date, the
Company shall pay $780 to Executive in a lump sum on July 8, 2001.
b. Except for (i) the Severance Benefit pursuant to Section 2(a)
above, and (ii) Executive's salary and all other compensation through the
Separation Date, including any earned but unpaid vacation pay, Executive shall
not be entitled to receive any other compensation or benefits of any sort
including, without limitation, salary, vacation, bonuses, stock options,
short-term or long-term disability benefits, or health care coverage (except as
provided under applicable state or federal law), from the Company, its
affiliates, or their respective partners, principals, officers, directors,
shareholders, managers, employees, agents, representatives, or insurance
companies, or their respective predecessors, successors or assigns at any time;
and
c. Executive acknowledges and agrees that the Severance Benefit
provided under Section 2(a) above, constitutes consideration which, but for
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the mutual covenants set forth in the Agreement, the Company is not otherwise
obligated to provide, nor is Executive otherwise entitled to receive.
d. The Company acknowledges and agrees that its payment
obligations to Executive under this Agreement are secured by that certain Xxxxx
Fargo Bank Minnesota N.A. Irrevocable Standby Letter of Credit Number S750945
issued September 27, 2000, as amended by that certain Amendment Number 002 dated
February 8, 2001 (the "L/C"); and the Company agrees to use good faith efferts
to have the L/C amended to so reflect that this Agreement is secured by the L/C.
3. MUTUAL RELEASE.
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a. In consideration of the payments to be made pursuant to
Section 2 above, and the Company's and Executive's other covenants and
agreements contained herein, the Parties hereby release and discharge each
other, and Executive hereby releases and discharges the Company's past and
present subsidiaries, shareholders, and the officers, directors, managers,
employees, agents, attorneys, servants, affiliates, predecessors, successors and
assigns of each of them, and its and their insurers, employee welfare benefit
plans, and pension or deferred compensation plans, along with their respective
trustees, administrators, and fiduciaries (collectively, the "Released Parties")
from any and all claims, charges, complaints, liens, demands, causes of action,
obligations, damages and liabilities, known or unknown, suspected or
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unsuspected, that the Parties had, now have, or may hereafter claim to have
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against the Released Parties, arising out of or relating in any way to
Executive's hiring by, employment with, or separation from the Company or
otherwise relating to any of the Released Parties from the beginning of time
through the Separation Date. The release specifically extends to, without
limitation, claims or causes of action for wrongful termination, impairment of
ability to compete in the open labor market, breach of an express or implied
contract, breach of any collective bargaining agreement, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud,
misrepresentation, defamation, slander, infliction of emotional distress,
disability, loss of future earnings, and claims under the California
constitution, the United States Constitution, and applicable state and federal
fair employment laws, federal equal employment opportunity laws, and federal and
state labor statutes and regulations, including, but not limited to, the Civil
Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended, the
National Labor Relations Act, as amended, the Labor-Management Relations Act, as
amended, the Worker Retraining and Notification Act of 1988, as amended, the
Americans with Disabilities Act of 1990, as amended, the Rehabilitation Act of
1973, as amended, the Executive Retirement Income Security Act of
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1974, as amended, the Age Discrimination in Employment Act of 1967, as amended,
and the California Fair Employment and Housing Act, as amended.
b. The Parties expressly waive all rights afforded by Section
1542 of the Civil Code of the State of California ("Section 1542") with respect
to the Released Parties. Section 1542 states 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.
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release, each of the Parties understands and
agrees that the Agreement is intended to include all claims, if any, which each
of the Parties may have and which each of the Parties does not now know or
suspect to exist against the Released Parties and this Agreement extinguishes
those claims.
c. The foregoing releases by Executive do not apply to, and shall
not affect, any of the Company's obligations under this Agreement, including,
without limitation, the Company's payment obligations to Executive pursuant to
Section 2 hereof.
4. REVIEW AND REVOCATION PERIOD. Executive acknowledges that the
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Company has advised Executive that she may consult with an attorney of
Executive's choosing prior to signing the Agreement and that Executive has
twenty-one (21) days during which to consider the provisions of the Agreement,
although Executive may sign and return it sooner. Executive further acknowledges
that Executive has been advised by the Company that Executive has the right to
revoke the Agreement for a period of seven (7) days after signing it and that
the Agreement shall not become effective or enforceable until such seven (7)-day
revocation period has expired. Executive acknowledges and agrees that if
Executive wishes to revoke the Agreement, Executive must do so in writing, and
that such revocation must be signed by Executive and received by the Company no
later than 5:00 p.m. Pacific Daylight Time on the seventh (7th) day after
Executive has signed the Agreement. Executive acknowledges and agrees that, in
the event that Executive revokes the Agreement, Executive shall have no right to
receive any benefits hereunder, including the Severance Payment. Executive
represents that Executive has read the Agreement and understands its terms and
enters into the Agreement freely, voluntarily, and without coercion.
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5. NO DISPARAGEMENTS. Executive and the Company agree that neither
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Executive nor the Company shall make any oral or written, public or private,
statements that are disparaging of Executive or the Company, its subsidiaries,
affiliates, or their respective partners, principals, officers, directors,
shareholders, managers, employees, agents, representatives, or their respective
predecessors, successors or assigns at any time; provided, however, nothing in
the Section 5 shall preclude Executive or the Company from making truthful
factual statements regarding Executive or former officers, directors or
employees of the Company.
6. RETURN OF THE COMPANY'S DOCUMENTS AND PROPERTY. Executive agrees to
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return all records, documents, proposals, notes, lists, files and any and all
other materials including, without limitation, computerized and/or electronic
information that refers, relates or otherwise pertains to the Company, its
affiliates, and/or their respective parners, principals, officers, directors,
shareholders, managers, employees, agents, representatives, or insurance
companies, or their respective predecessors, successors or assigns at any time.
In addition, Executive shall return to the Company all property or equipment
that she has been issued during the course of her employment or which she
otherwise currently possesses. Executive shall deliver to the Company at its
offices in Irvine, California on or before the Separation Date at Executive's
expense all of the Company's records, documents, proposals, notes, lists, files
and materials and property and equipment that are in her possession. Executive
is not authorized to retain any copies of any such records, documents,
proposals, notes, lists, files or materials. Nor is Executive authorized to
retain any other of the Company's property or equipment.
7. PROPRIETARY INFORMATION. Executive acknowledges that Executive has
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had or may have had access to proprietary information, trade secrets, and
confidential material of the Company or its affiliates, including, but not
limited to, all ideas, information and materials, tangible or intangible, not
generally known to the public, relating in any manner to the business of the
Company, its personnel (including partners, principals, employees and
contractors), its clients or others with whom it does business that Executive
learned or acquired during the period of Executive's employment with the Company
("Proprietary Information"). Proprietary Information includes, but is not
limited to, manuals, documents, computer programs, source code, users manuals,
compilations of technical, financial, legal or other data, client or prospective
client lists, names of suppliers, specifications, designs, business or marketing
plans, forecasts, financial information, work in progress, and other technical
or business information. Executive agrees, without limitation in time or until
such Proprietary Information shall become public other than by Executive's
unauthorized disclosure, to maintain the confidentiality of such information and
to refrain from divulging, disclosing, or otherwise using said Propri-
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etary Information to the detriment of the Released Parties, or for any other
purpose. Executive further acknowledges and agrees that she continues to be
bound by and will abide by any and all prior confidentiality and/or
non-disclosure agreements entered into by and between Executive and the Company,
and that nothing in the Agreement in any way alters, amends, or waives any such
duties and/or obligations Executive has or may have under such other agreements.
8. COOPERATION IN LITIGATION. Executive shall cooperate with the
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Company, its affiliates, and each of their respective attorneys, barristers,
solicitors or other legal representatives (collectively, "Attorneys") in
connection with any claim, litigation, or judicial or arbitration proceeding
which is now pending or may hereinafter be brought against the Company or its
affiliates by any third-party. Executive's duty of cooperation shall include,
but not be limited to; (a) meeting with the Company's and/or its affiliates'
Attorneys by telephone or in person at mutually convenient times and places in
order to state truthfully her knowledge of matters at issue and recollection of
events; (b) appearing at the Company's, its affiliates' and/or their Attorneys'
request (and, to the extent possible, at a time convenient to Executive that
does not conflict with the needs or requirements of her then-current employer)
as a witness at depositions or trials, without necessity of a subpoena, in order
to state truthfully Executive's knowledge of matters at issue; and (c) signing
at the Company's, its affiliates' and/or their Attorneys' request declarations
or affidavits that truthfully state matters of which Executive has knowledge.
The Company and/or its affiliates shall promptly reimburse Executive for her
actual and reasonable travel or other expenses that she may incur in cooperating
with the Company, its affiliates, and/or their Attorneys pursuant to the Section
8.
9. NON-SOLICITATION. For three (3) years immediately following the
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Separation Date, Executive shall not, directly or indirectly, (i) solicit,
induce, or attempt to solicit or induce, any person known to Executive to be an
employee of the Company or any of its affiliates (each such person, a Company
Person), to terminate his or her employment or other relationship with the
Company or such affiliate for the purpose of associating with (A) any entity of
which Executive is or becomes a partner, stockholder, member, officer, director,
principal, agent, trustee or consultant. or (B) any competitor of the Company or
any such affiliate or (ii) otherwise encourage any Company Person to terminate
his or her employment or other relationship with the Company or such affiliate
for any other purpose or no purpose.
10. NON-ADMISSION OF LIABILITY. Nothing in the Agreement shall be
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construed as an admission of liability by Executive or the Released Parties;
rather, Executive and the Released Parties are resolving all matters
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arising out of their employer-employee relationship and all other relationships
between Executive and the Released Parties, as to each of which each of the
Released Parties and Executive deny any liability.
11. CONFIDENTIALITY. Executive covenants and agrees that neither she
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nor her attorneys or representatives shall reveal to anyone, except her spouse,
accountants for income tax and audit purposes, and attorneys for purposes of the
enforcement of the Agreement, any of the terms of the Agreement, except as may
be mutually agreed upon in writing or otherwise required by law or court order.
12. BINDING EFFECT. The Agreement shall be binding upon the Parties
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and their respective heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of the Parties and their
respective heirs, administrators, representatives, executors, successors and
assigns.
13. SEVERABILITY. While the provisions contained in the Agreement are
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considered by the Parties to be reasonable in all circumstances, it is
recognized that some provisions may fail for technical reasons. Accordingly, it
is hereby agreed and declared that if any one or more of such provisions shall,
either by itself or themselves or taken with others, be adjudged to be invalid
as exceeding what is reasonable in all circumstances for the protection of the
interests of the Company, but would be valid if any particular restrictions or
provisions were deleted or restricted or limited in a particular manner, then
the said provisions shall apply with any such deletions, restrictions,
limitations, reductions, curtailments, or modifications as may be necessary to
make them valid and effective and the remaining provisions shall be unaffected
thereby.
14. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
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entire understanding among the Parties and may not be modified without the
express written consent of the Parties. This Agreement supersedes all prior
written and/or oral and all contemporaneous oral agreements, understandings and
negotiations regarding the subject matter hereof. Notwithstanding the foregoing,
the provisions of the Employment Agreement shall remain in effect, except as
otherwise modified herein.
15. GOVERNING LAW. This Agreement shall be governed by and construed
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and enforced pursuant to the laws of the State of California applicable to
contracts made and entirely to be performed therein.
16. VOLUNTARY AGREEMENT; NO INDUCEMENTS. Each Party to this Agreement
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acknowledges and represents that she or it (a) has fully
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and carefully read the Agreement prior to signing it (b) has been, or has had
the opportunity to be, advised by independent legal counsel of her or its own
choice as to the legal effect and meaning of each of the terms and conditions of
the Agreement, and (c) is signing and entering into the Agreement as a free and
voluntary act without duress or undue pressure or influence of any kind or
nature whatsoever and has not relied on any promises, representations or
warranties regarding the subject matter hereof other than as set forth in the
Agreement.
17. DISPUTE RESOLUTION. The Company and Executive agree that any
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dispute arising as to the Parties' rights and obligations hereunder shall be
resolved by binding arbitration before a private judge to be determined by
mutually agreeable means.
IN WITNESS WHEREOF, the Parties have set their hand as of the date
first written above.
EXECUTIVE.
/s/ XXXXX X. XXXXXXXX
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XXXXX X. XXXXXXXX
PRANDIUM, INC. CHI-CHI'S, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Its: President/CEO/Chairman Its: President/CEO
XXX XXX ROO. INC.
By: /s/ Xxxxx X. Xxxxxx
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Its: President/CEO
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