April 3, 1997
PERSONAL AND CONFIDENTIAL
Via Hand Delivery
Xx. Xxxxxxxxxxx X. Xxxxxxx
Dear Xxxxx:
This letter confirms the terms of the agreement which
you and I have reached concerning your employment status
following discussions that you and I just completed, and
covers the change in your employment status with Xxxxxxxx
Fresh Cooking, Inc. (the "Company").
The Company's offer that is described in this letter
will be open and effective for twenty-one (21) days from the
date shown as the "Effective Date" of the agreement. You
may elect to accept or reject this offer within the twenty-
one (21) day period. Obviously, it is important that you
understand the terms of our offer so that if you sign, you
do so knowingly and voluntarily. To enable you to do that,
we suggest that you consult with an attorney about the
Company's offer and your rights before signing it. You will
not, however, waive or give up any rights or claims you may
have against the Company that may arise after the date that
you accept the Company's offer. If you accept this offer,
both of us will acknowledge our agreement with the terms and
conditions outlined in the offer and Waiver of Rights (the
"Waiver") set forth in this letter (the offer and Waiver
collectively referred to herein as the "Agreement").
If you decide to sign the Agreement and waive your
rights against the Company, you will have seven (7) days
following the signing of the Agreement and the return of the
signed Agreement to change your mind and revoke the
Agreement. In other words, the Agreement will not be in
effect until seven (7) days have passed following your
signing.
The key elements of the Company's offer to you are as
follows:
1. Effective as of April 4, 1997, which we will refer to
as the "Termination Date," you no longer will be required to
perform services for the Company, your employment with the
Company will be officially terminated, you shall relinquish
all titles and offices held with the Company and resign from
the Company's Board of Directors, and the Change of Control
Agreement between you and the Company dated as of March 2,
1996 shall be terminated.
2. You will receive what we will refer to as additional
compensation (the "Additional Compensation") which will be
paid to you as follows:
(a) You will receive biweekly payments at your current
base compensation rate through the close of business on
April 4, 1997.
(b) You will be entitled to receive on a prorated
basis any bonus earned under the formula for which
you are accountable for the Company's Fiscal Year
1997, prorated through April 4, 1997. You will not
be eligible for any future bonuses other than the
bonus referenced in this Section 2(b).
(c) You have the option of purchasing your Company
automobile at its present net book value of
$7,507.67. If you elect to buy the automobile at
present net book value, the difference between such
value and the actual value of the automobile will be
considered income and you will receive a Form 1099
or W-2 reflecting such income.
(d) The Company currently has no severance pay
policy. However, you will receive six (6) monthly
payments each in the gross amount of $14,466.67. In
the event that you have obtained new employment
prior to the end of such six (6) month period, you
will have the option of receiving the balance of
such monthly payments in a single lump sum.
3. The Company will, subject to the approval of the
Compensation and Stock Option Committee of the Board of
Directors of the Company at its next regularly scheduled
meeting, waive any restrictions on your sale of the 37,419
shares of common stock of the Company which you purchased
pursuant to the Company's one-time 1996 Management Stock
Option Program. The timing of such sale by you will be so
as to be in compliance with all laws and regulations
affecting the trading of Company stock. Thereafter, the
Company shall pay to you based on your sale of such shares
between July 1, 1997 and December 31, 1997, for each of such
shares the difference between the actual per share market
price on the date of sale of such shares and $7.75 per
share.
4. The Company will arrange to provide at the Company's
expense the outplacement services of a reputable corporate
outplacement firm selected by the Company to assist you in
locating other suitable employment.
5. If you elect COBRA, the Company will reimburse you for
that portion of your COBRA cost equal to what the Company
contributes for the same type of employee coverage for a
period equal to the lesser of six (6) months or the duration
of your COBRA continuation period. We agree to provide you
with information covering your health insurance entitlements
under COBRA and other employee benefits at termination. You
will hear directly from the Company's Benefits Department
explaining these matters. If this written information does
not adequately answer your questions, please let us know
right away.
6. You will not be eligible to participate in the
Executive Stock Option Program or Management Stock Option
Program after April 4, 1997.
7. All compensation payments to you will be subject to
applicable deductions.
8. As of the Termination Date, under the terms of the
Company's Management Retirement Plan and Executive
Supplemental Pension Plan, you are not eligible to
participate in those plans. Therefore, you have no benefits
that are due you under those plans.
9. Exhibit "A " to this letter contains a complete list of
your Company-granted stock options. You are not eligible
for any future grants of options to acquire Company stock.
Except as modified by the terms of this paragraph, your
rights under the Company-granted stock options (the "Stock
Options") that you currently hold are controlled by the
terms of the applicable written stock option award or
agreement.
(a) Each Stock Option which by its terms would otherwise
expire upon the termination or change of your employment
status with the Company will, subject to the approval of
the Compensation and Stock Option Committee of the Board
of Directors of the Company, remain exercisable for a
period equal to the lesser of two (2) years from the date
of termination of your employment with the Company or the
expiration of the original option period and may be
exercised by you when such Stock Option becomes
exercisable under its terms. Stock Options not exercised
within such two (2) year period will automatically
terminate. You will be subject to exercising the Stock
Options as if you had remained an employee with the
Company and were still fully subject to all of the terms
and conditions of such plans which are not in conflict
with this two (2) year exercise period. The Company will
request the respective Chief Executive Officers of Ruby
Tuesday, Inc. and Xxxxxxxx Health Care, Inc. to extend
the period during which stock options of those companies
which you may possess will remain exercisable for a
period equal to the lesser of two (2) years from the date
of termination of your employment with the Company or
until the stock options would expire other than due to
your termination of employment with the Company and may
be exercised by you if and when such stock options become
exercisable by their terms within such period.
10. If you are currently a member of the Xxxxxxxx
Employees' Federal Credit Union, you may continue to
participate in that program, subject only to observing the
rules and qualifications governing participation.
11. If you participated in the Xxxxxxxx Fresh Cooking, Inc.
Salary Deferral 401(k) Plan or the Deferred Compensation
Plan, as amended, you, of course, may receive monies in
accordance with the terms of those plans, but you will not
be allowed to make any contributions or receive Company
matching contributions under these plans following the
Termination Date.
12. Aside from the amounts to which you are entitled under
the terms of this Agreement, you acknowledge that you have
received any and all compensation and remuneration of any
kind and character, including, but not limited to, salary,
bonuses, commissions, vacation, stock options, and severance
pay, which you may be entitled to receive from the Company
at any time now or in the future. It is understood that the
Company's Agreement with you is in lieu of any other
severance pay.
13. You agree to keep confidential information disclosed to
you or known by you as a consequence of or through your
employment by the Company, concerning the business,
financial affairs, products, suppliers, processes, services,
customers, employees, or employees' compensation of the
Company, including information related to menus, recipes,
purchasing, bargaining, customer lists, manuals (all types),
sales and marketing techniques, territorial sales plans,
account records, personnel records, pricing information,
advertising, promotion, accounting, recordkeeping, and any
other information treated by the Company as being
confidential or which is labeled "Confidential" by the
Company or which is otherwise designated as confidential or
proprietary by the Company. Confidential information does
not include: (a) information already known to you prior to
your employment by the Company in any capacity, (b)
information lawfully disclosed to you from a third party
outside the Company who had a right to so disclose it, and
(c) information which has become a matter of public
knowledge through no fault or omission of yourself.
14. There are no other promises, agreements, or
understandings between you and the Company, and it is the
intent of this Agreement that it embody any and all
promises, agreements, and understandings between yourself
and the Company. No changes or modifications may be made in
the terms stated in this Agreement unless made in writing
and signed by yourself or your authorized representative and
an authorized representative of the Company. This Agreement
will inure to the benefit of, and will be binding on both
parties, and their personal representatives, heirs,
successors, and assigns.
15. It is understood and agreed that if any provision or
part of this Agreement is found to be unenforceable,
illegal, or inoperable, such provision or part shall be
severed, and all remaining provisions and parts of this
Agreement shall remain fully valid and enforceable.
16. Furthermore, you agree to perform the following:
(a) Return all Company-owned property and equipment
including, but not limited to, laptop, discs, software
and credit cards, to the corporate office within seven
(7) days of your execution of this letter.
(b) Return all records, manuals and materials which
came into your possession because of your employment
with the Company and which represent or relate to
the Company's business records, including, but not
limited to, those materials referenced in Section 13
above, and copies thereof made while the materials
were in your possession and/or under your control,
to the corporate office within seven (7) days of
your execution of this letter. You agree that you
will not retain any records, manuals and materials,
or copies of records, manuals and materials as set
forth herein.
The Company's offer under this Agreement will be left
open until April 24, 1997. If you have not executed this
Agreement on or before the close of business on April 24,
1997, then the Company's offer is withdrawn. Note that your
execution or non-execution of this Agreement does not change
the Company's decision regarding your employment and that
you are hereby terminated from the Company's payroll as an
employee effective April 4, 1997, and we will provide you
with the required information covering your health insurance
entitlement under COBRA.
By signing this Agreement on behalf of the Company, I
am indicating the Company's intent, and my authority in
behalf of the Company, to make you this offer. If there are
any questions which need clarification, please let me know
immediately in order that we can discuss and resolve them.
If you are in agreement and accept the Company's offer,
please return to me a fully executed copy of this Agreement
and Waiver.
Sincerely,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
AGREEMENT ACKNOWLEDGED AND ACCEPTED.
I HEREBY TENDER MY RESIGNATION FROM THE BOARD OF DIRECTORS
OF
XXXXXXXX FRESH COOKING, INC. EFFECTIVE AS OF APRIL 4, 1997.
/s/ Xxxxxxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxxxx
Date: April 24, 1997
The "Effective Date" of this Agreement
is April 3, 1997.
PER SHARE TOTAL
NUMBER OF OPTION OPTION EXERCISABLE EXPIRATION
PLAN OPTIONS PRICE PRICE DATE DATE
STOCK INCENTIVE PLAN, 1995 2,500 $10.0095 $25,023.75 1/3/98 1/3/00
ESOP GRANT
STOCK INCENTIVE PLAN, 1996 120,000 $ 7.7500 $930,000.00 3/26/99 3/26/01
ESOP GRANT
1996 MSOP, 3RD QUARTER GRANT 112,257 $ 7.7500 $869,991.75 3/26/98 3/26/01
WAIVER OF RIGHTS
I, Xxxxxxxxxxx X. Xxxxxxx, knowingly and voluntarily,
agree to waive, settle, release and discharge Xxxxxxxx Fresh
Cooking, Inc. (the "Company") from any and all claims,
demands, damages, actions or causes of action, including any
claims for attorneys' fees which I have against the Company,
its predecessors, subsidiaries, and affiliates, and the
officers, directors, employees and agents of each of them
arising out of or relating to my employment with the
Company, my service on the Board of Directors of the
Company, my resignation from the Board of Directors of the
Company, the termination of the Change of Control Agreement
between the Company and me dated as of March 2, 1996, or the
termination or other change of status of my employment with
the Company under the terms of the Agreement executed by
myself and containing an Effective Date of April 3, 1997. I
understand this Waiver of Rights includes any claims I may
have arising under any Federal, state or local laws,
ordinances or regulations pertaining to wrongful discharge
or discrimination on the basis of sex, race, color,
religion, creed, national origin, age or handicap status and
particularly any rights I may have pursuant to the Age
Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Americans with Disabilities Act, Title
VII of the Civil Rights Act of 1964, as amended, or relating
to my employment with the Company, my service on the Board
of Directors of the Company, my resignation from the Board
of Directors of the Company, the termination of the Change
of Control Agreement between the Company and me dated as of
March 2, 1996, or termination of my employment with the
Company under terms of the Agreement executed by myself and
containing an Effective Date of April 3, 1997.
I acknowledge and understand that I waive my right to
file suit for any claim I may have under the laws and the
statutes named in the paragraph above. I further waive my
right to claim or receive damages as a result of any charge
of discrimination which may be filed by me or anyone acting
on my behalf.
I UNDERSTAND, ACKNOWLEDGE AND AGREE TO THE TERMS OF
THIS AGREEMENT, THIS 24 DAY OF April, 1997.
/s/Xxxxxxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxxxx
PERSONAL AND CONFIDENTIAL
Via Hand Delivery
April 24,1997
Xx. Xxxxxxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Dear Xxxxx:
In my letter to you dated April 3, 1997 ( the "Agreement"),
the Company offered you a severance package. You have
raised a number of questions regarding changes and/or
clarifications to the Agreement.
We have reviewed each of these matters and will respond as
follows:
1. Section 2(d) of the Agreement is amended by adding the
following at the end thereof: "In the event that you have
not obtained new employment prior to the end of such six (6)
month period, the Company will, provided that you have
exercised all due diligence in seeking new employment as
determined by the Company in its sole discretion, pay to you
up to three (3) additional monthly payments each in the
gross amount of $14,466.67. The Company's obligation to pay
such additional monthly payments shall cease during the
first month in which you commence such new employment. All
payments to be made pursuant to this Section 2(d) shall be
made upon the 1st day of the month, beginning May 1, 1997."
2. Section 3 of the Agreement is amended by deleting the
last sentence thereof and replacing it with the following:
"Thereafter, the Company shall pay to you within seven (7)
days of the Company's receipt of acceptable proof of such
sale, but in no event prior to July 1, 1997, based on your
sale of such shares between April 24, 1997 and December 31,
1997, for each of such shares the difference between the
actual per share closing price on the date of sale of such
shares and $7.75 per share."
3. Section 9 of the Agreement is amended to provide that
there shall be no extension of the period during which such
Stock Options shall remain exercisable shall apply to any
Stock Options issued to you during the fourth quarter of the
Company's fiscal 1996 under the Executive Stock Option
Program and the Management Stock Option Program.
4. Please note that the Compensation and Stock Option
Committee of the Board of Directors of the Company is
scheduled to meet on April 23, 1997, to consider those
matters addressed in Sections 3 and 9 of the Agreement which
require the approval of such Committee.
All of the terms and conditions stated in the April 3, 1997,
Agreement which are not in conflict with the changes in this
letter will remain in full force and effect. This means
that the twenty-one (21) day acceptance period during which
the Company's offer remains open and effective in the
Agreement is still in effect, and you are to accept or
reject the Company's offer within that time period.
Please let me know if you have any questions.
Sincerely,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
THE AGREEMENT, AS MODIFIED HEREBY,
IS ACKNOWLEDGED AND ACCEPTED.
/s/ Xxxxxxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxxxx
Date: April 24, 1997
April 3, 1997
PERSONAL AND CONFIDENTIAL
Via Hand Delivery
Mr. Xxxxxx Xxx, XXX
Dear Xxxxxx:
This letter confirms the terms of the agreement which
you and I have reached concerning your employment status
following discussions that you and I just completed, and
covers the change in your employment status with Xxxxxxxx
Fresh Cooking, Inc. (the "Company").
The Company's offer that is described in this letter
will be open and effective for twenty-one (21) days from the
date shown as the "Effective Date" of the agreement. You
may elect to accept or reject this offer within the twenty-
one (21) day period. Obviously, it is important that you
understand the terms of our offer so that if you sign, you
do so knowingly and voluntarily. To enable you to do that,
we suggest that you consult with an attorney about the
Company's offer and your rights before signing it. You will
not, however, waive or give up any rights or claims you may
have against the Company that may arise after the date that
you accept the Company's offer. If you accept this offer,
both of us will acknowledge our agreement with the terms and
conditions outlined in the offer and Waiver of Rights (the
"Waiver") set forth in this letter (the offer and Waiver
collectively referred to herein as the "Agreement").
If you decide to sign the Agreement and waive your
rights against the Company, you will have seven (7) days
following the signing of the Agreement and the return of the
signed Agreement to change your mind and revoke the
Agreement. In other words, the Agreement will not be in
effect until seven (7) days have passed following your
signing.
The key elements of the Company's offer to you are as
follows:
1. Effective as of April 4, 1997, which we will refer to
as the "Termination Date," you no longer will be required to
perform services for the Company and your employment with
the Company will be officially terminated, you shall
relinquish all titles and offices held with the Company, and
the Change of Control Agreement between you and the Company
dated as of March 2, 1996, shall be terminated.
2. You will receive what we will refer to as additional
compensation (the "Additional Compensation") which will be
paid to you as follows:
(a) You will receive biweekly payments at your current
base compensation rate through the close of business on
April 4, 1997.
(b) You will be entitled to receive on a prorated
basis any bonus earned under the formula for which
you are accountable for the Company's Fiscal Year
1997, prorated through April 4, 1997. You will not
be eligible for any future bonuses other than the
bonus referenced in this Section 2(b).
(c) The Company currently has no severance pay
policy. However, you will receive twelve (12)
monthly payments each in the gross amount of
$9,091.67. In the event that you have obtained new
employment prior to the end of such twelve (12)
month period, you will have the option of receiving
the balance of such monthly payments in a single
lump sum.
3. The Company will, subject to the approval of the
Compensation and Stock Option Committee of the Board of
Directors of the Company at its next regularly scheduled
meeting, waive any restrictions on your sale of the 3,116
shares of common stock of the Company which you purchased
pursuant to the Company's one-time 1996 Management Stock
Option Program. The timing of such sale by you will be so
as to be in compliance with all laws and regulations
affecting the trading of Company stock. Thereafter, the
Company shall pay to you based on your sale of such shares
between July 1, 1997 and December 31, 1997, for each of such
shares the difference between the actual per share market
price on the date of sale of such shares and $7.75 per
share.
4. The Company will arrange to provide at the Company's
expense the outplacement services of a reputable corporate
outplacement firm selected by the Company to assist you in
locating other suitable employment.
5. You will not be eligible to participate in the
Executive Stock Option Program or Management Stock Option
Program after April 4, 1997.
6. You agree to cooperate with and assist the Company in
any and all matters relating to claims or charges of
discrimination of any kind or sexual harassment which claims
or charges relate to a time when your worked in the Human
Resources Department of the Company or its predecessors.
Such cooperation and assistance shall include, but not be
limited to, your appearing as a witness during depositions,
hearings, trials, mediations, and arbitrations. The
provisions of this paragraph shall survive the termination
of this Agreement.
7. All compensation payments to you will be subject to
applicable deductions.
8. If you elect COBRA, the Company will reimburse you for
that portion of your COBRA cost equal to what the Company
contributes for the same type of employee coverage for a
period equal to the lesser of six (6) months or the duration
of your COBRA continuation period. We agree to provide you
with information covering your health insurance entitlements
under COBRA and other employee benefits at termination. You
will hear directly from the Company's Benefits Department
explaining these matters. If this written information does
not adequately answer your questions, please let us know
right away.
9. Exhibit "A " to this letter contains a complete list of
your Company-granted stock options. You are not eligible
for any future grants of options to acquire Company stock.
Except as modified by the terms of this paragraph, your
rights under the Company-granted stock options (the "Stock
Options") that you currently hold are controlled by the
terms of the applicable written stock option award or
agreement.
(a) Each Stock Option which by its terms would otherwise
expire upon the termination or change of your employment
status with the Company will, subject to the approval of
the Compensation and Stock Option Committee of the Board
of Directors of the Company, remain exercisable for a
period equal to the lesser of three (3) years from the
date of termination of your employment with the Company
or the expiration of the original option period and may
be exercised by you when such Stock Option becomes
exercisable under its terms. Stock Options not exercised
within such three (3) year period will automatically
terminate. You will be subject to exercising the Stock
Options as if you had remained an employee with the
Company and were still fully subject to all of the terms
and conditions of such plans which are not in conflict
with this three (3) year exercise period. The Company
will request the respective Chief Executive Officers of
Ruby Tuesday, Inc. and Xxxxxxxx Health Care, Inc. to
extend the period during which stock options of those
companies which you may possess will remain exercisable
for a period equal to the lesser of three (3) years from
the date of termination of your employment with the
Company or until the stock options would expire other
than due to your termination of employment with the
Company and may be exercised by you if and when such
stock options become exercisable by their terms within
such period.
10. If you are currently a member of the Xxxxxxxx
Employees' Federal Credit Union, you may continue to
participate in that program, subject only to observing the
rules and qualifications governing participation.
11. If you participated in the Xxxxxxxx Fresh Cooking, Inc.
Salary Deferral 401(k) Plan or the Deferred Compensation
Plan, as amended, you, of course, may receive monies in
accordance with the terms of those plans, but you will not
be allowed to make any contributions or receive Company
matching contributions under these plans following the
Termination Date.
12. Aside from the amounts to which you are entitled under
the terms of this Agreement, you acknowledge that you have
received any and all compensation and remuneration of any
kind and character, including, but not limited to, salary,
bonuses, commissions, vacation, stock options, and severance
pay, which you may be entitled to receive from the Company
at any time now or in the future. It is understood that the
Company's Agreement with you is in lieu of any other
severance pay.
13. You agree to keep confidential information disclosed to
you or known by you as a consequence of or through your
employment by the Company, concerning the business,
financial affairs, products, suppliers, processes, services,
customers, employees, or employees' compensation of the
Company, including information related to menus, recipes,
purchasing, bargaining, customer lists, manuals (all types),
sales and marketing techniques, territorial sales plans,
account records, personnel records, pricing information,
advertising, promotion, accounting, recordkeeping, and any
other information treated by the Company as being
confidential or which is labeled "Confidential" by the
Company or which is otherwise designated as confidential or
proprietary by the Company. Confidential information does
not include: (a) information already known to you prior to
your employment by the Company in any capacity, (b)
information lawfully disclosed to you from a third party
outside the Company who had a right to so disclose it, and
(c) information which has become a matter of public
knowledge through no fault or omission of yourself.
14. There are no other promises, agreements, or
understandings between you and the Company, and it is the
intent of this Agreement that it embody any and all
promises, agreements, and understandings between yourself
and the Company. No changes or modifications may be made in
the terms stated in this Agreement unless made in writing
and signed by yourself or your authorized representative and
an authorized representative of the Company. This Agreement
will inure to the benefit of, and will be binding on both
parties, and their personal representatives, heirs,
successors, and assigns.
15. It is understood and agreed that if any provision or
part of this Agreement is found to be unenforceable,
illegal, or inoperable, such provision or part shall be
severed, and all remaining provisions and parts of this
Agreement shall remain fully valid and enforceable.
16. Furthermore, you agree to perform the following:
(a) Return all Company-owned property and equipment
including, but not limited to, laptop, discs, software
and credit cards, to the corporate office within seven
(7) days of your execution of this letter.
(b) Return all records, manuals and materials which
came into your possession because of your employment
with the Company and which represent or relate to
the Company's business records, including, but not
limited to, those materials referenced in Section 13
above, and copies thereof made while the materials
were in your possession and/or under your control,
to the corporate office within seven (7) days of
your execution of this letter. You agree that you
will not retain any records, manuals and materials,
or copies of records, manuals and materials as set
forth herein.
The Company's offer under this Agreement will be left
open until April 24, 1997. If you have not executed this
Agreement on or before the close of business on April 24,
1997, then the Company's offer is withdrawn. Note that your
execution or non-execution of this Agreement does not change
the Company's decision regarding your employment and that
you are hereby terminated from the Company's payroll as an
employee effective April 4, 1997, and we will provide you
with the required information covering your health insurance
entitlement under COBRA.
By signing this Agreement on behalf of the Company, I
am indicating the Company's intent, and my authority in
behalf of the Company, to make you this offer. If there are
any questions which need clarification, please let me know
immediately in order that we can discuss and resolve them.
If you are in agreement and accept the Company's offer,
please return to me a fully executed copy of this Agreement
and Waiver.
Sincerely,
/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
AGREEMENT ACKNOWLEDGED
AND ACCEPTED.
/s/ Xxxxxx Xxx, III
Xxxxxx Xxx, III
Date: 4/23, 1997
The "Effective Date" of this Agreement
is April 3, 1997.
PER
NUMBER SHARE TOTAL
OF OPTION OPTION EXERCISABLE EXPIRATION
PLAN OPTIONS PRICE PRICE DATE DATE
STOCK INCENTIVE PLAN, 1993 1,200 $8.1029 $9,723.48 7/1/96 7/1/98
ESOP GRANT
1994 MSOP, 1ST QUARTER GRANT 218 $8.9200 $1,944.56 9/4/95 9/4/98
1994 MSOP, 2ND QUARTER GRANT 227 $9.2946 $2,109.87 12/4/95 12/4/98
1994 MSOP, 4TH QUARTER GRANT 17 $9.6520 $ 164.08 6/4/96 6/4/99
1995 MSOP, 1ST QUARTER GRANT 200 $10.5202 $2,104.04 9/3/96 9/3/99
STOCK INCENTIVE PLAN, 1996 200 $5.4133 $1,082.66 1/15/99 1/15/01
ESOP GRANT
STOCK INCENTIVE PLAN, 1996 15,000 $7.7500 $116,250.00 3/26/99 3/26/01
ESOP GRANT
1996 MSOP, 3RD QUARTER GRANT 9,348 $7.7500 $72,447.00 3/26/98 3/26/01
WAIVER OF RIGHTS
I, Xxxxxx Xxx, XXX, knowingly and voluntarily, agree to
waive, settle, release and discharge Xxxxxxxx Fresh Cooking,
Inc. (the "Company") from any and all claims, demands,
damages, actions or causes of action, including any claims
for attorneys' fees which I have against the Company, its
predecessors, subsidiaries, and affiliates, and the
officers, directors, employees and agents of each of them
arising out of or relating to my employment with the
Company, the termination of the Change of Control Agreement
between the Company and me dated as of March 2, 1996, or the
termination or other change of status of my employment with
the Company under the terms of the Agreement executed by
myself and containing an Effective Date of April 3, 1997. I
understand this Waiver of Rights includes any claims I may
have arising under any Federal, state or local laws,
ordinances or regulations pertaining to wrongful discharge
or discrimination on the basis of sex, race, color,
religion, creed, national origin, age or handicap status and
particularly any rights I may have pursuant to the Age
Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Americans with Disabilities Act, Title
VII of the Civil Rights Act of 1964, as amended, or relating
to my employment with the Company, the termination of the
Change of Control Agreement between the Company and me dated
as of March 2, 1996, or termination of my employment with
the Company under terms of the Agreement executed by myself
and containing an Effective Date of April 3, 1997.
I acknowledge and understand that I waive my right to
file suit for any claim I may have under the laws and the
statutes named in the paragraph above. I further waive my
right to claim or receive damages as a result of any charge
of discrimination which may be filed by me or anyone acting
on my behalf.
I UNDERSTAND, ACKNOWLEDGE AND AGREE TO THE TERMS OF
THIS AGREEMENT, THIS 23 DAY OF April, 1997.
/s/Xxxxxx Xxx, III
Xxxxxx Xxx, III
PERSONAL AND CONFIDENTIAL
Via Hand Delivery
April 23, 1997
Mr. Xxxxxx Xxx, XXX
Dear Xxxxxx:
In my letter to you dated April 3, 1997 ( the "Agreement"),
the Company offered you a severance package. You have
raised a number of questions regarding changes and/or
clarifications to the Agreement.
We have reviewed each of these matters and will respond as
follows:
1. Section 2(c) of the Agreement is amended by adding the
following at the end thereof: "In the event that you have
not obtained new employment prior to the end of such twelve
(12) month period, the Company will pay to you up to three
(3) additional monthly payments each in the gross amount of
$9,091.67. The Company's obligation to pay such additional
monthly payments shall cease during the first month in which
you commence such new employment. All payments to be made
pursuant to this Section 2(c) shall be made upon the 1st day
of the month, beginning May 1, 1997."
2. Section 3 of the Agreement is amended by deleting the
last sentence thereof and replacing it with the following:
"Thereafter, the Company shall pay to you within seven (7)
days of the Company's receipt of acceptable proof of such
sale, but in no event prior to July 1, 1997, based on your
sale of such shares between April 24, 1997 and December 31,
1997, for each of such shares the difference between the
actual per share closing price on the date of sale of such
shares and $7.75 per share."
3. Section 9 of the Agreement is amended to provide that
there shall be no extension of the period during which such
Stock Options shall remain exercisable shall apply to any
Stock Options issued to you during the fourth quarter of the
Company's fiscal 1996 under the Executive Stock Option
Program and the Management Stock Option Program.
4. Please note that the Compensation and Stock Option
Committee of the Board of Directors of the Company is
scheduled to meet on April 23, 1997, to consider those
matters addressed in Sections 3 and 9 of the Agreement which
require the approval of such Committee.
5. Section 6 of the Agreement is amended to provide that
the Company will cause you to be served with a subpoena in
conjunction with your appearing as a witness during any
proceeding.
6. Section 8 of the Agreement is amended by deleting the
first sentence thereof and replacing it with the following:
"If you elect COBRA, the Company will reimburse you for that
portion of your COBRA cost equal to what the Company
contributes for the same type of employee coverage for a
period equal to the lesser of twelve (12) months or the
duration of your COBRA continuation period."
All of the terms and conditions stated in the April 3, 1997,
Agreement which are not in conflict with the changes in this
letter will remain in full force and effect. This means
that the twenty-one (21) day acceptance period during which
the Company's offer remains open and effective in the
Agreement is still in effect, and you are to accept or
reject the Company's offer within that time period.
Please let me know if you have any questions.
Sincerely,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
THE AGREEMENT, AS MODIFIED HEREBY,
IS ACKNOWLEDGED AND ACCEPTED.
/s/ Xxxxxx Xxx, III
Xxxxxx Xxx, III
Date: April 23, 1997
