Exhibit 99.2
SEPARATION AND GENERAL RELEASE AGREEMENT
This SEPARATION AND GENERAL RELEASE AGREEMENT (the "Agreement"), dated as
of November 8, 2003, is entered into by and among Avado Brands, Inc., a
corporation organized and existing under the laws of Georgia (the "Company") and
Xxxxxx X. XxXxxx, Xx. ("Executive"), and solely with respect to Section 5
herein, Xxxxxx Xxxxxxx-Xxxxx ("Xx. Xxxxx"), Xxxxxx X. Xxxxxxxx ("Xx. Xxxxxxxx"),
Xxxxxxx X. Xxxxxx ("Xx. Xxxxxx") and Xxxxxx Xxxxx ("Xx. Xxxxx," and together
with Xx. Xxxxx, Xx. Xxxxxxxx and Xx. Xxxxxx, the "Directors").
WHEREAS, Executive has been employed as Chief Executive Officer of the
Company and has served as Chairman of the Board of Directors of the Company (the
"Board");
WHEREAS, Executive has decided to resign from his position as Chief
Executive Officer of the Company and as a member of the Board and from all
offices, directorships and other positions with the Company and any of its
affiliates and subsidiaries; and
WHEREAS, the Company has agreed to accept such resignation.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Termination of Service; Benefits.
(a) Resignation of Employment. Effective as of the date of this Agreement
(the "Effective Date"), Executive hereby resigns his employment with the
Company, including his positions as Chairman of the Board, director and Chief
Executive Officer of the Company, and resigns as officer, director, and every
other position with the Company and any of its affiliates and subsidiaries, and
shall no longer serve in any of these capacities. Executive shall be paid
Executive's accrued but unpaid base salary through the Effective Date and up to
four (4) weeks of unused vacation time accrued by Executive through the
Effective Date, regardless of whether he executes this Agreement, in accordance
with the Company's customary payroll practices. Likewise, Executive will be
reimbursed for all unreimbursed expenses in an aggregate amount not to exceed
$10,000 that were incurred by Executive in the furtherance of Company business
through the Effective Date within three (3) business days of providing
reasonable documentation relating to such expenses.
(b) Payments and Benefits. The Company shall provide Executive with the
payments and benefits set forth in this subsection (b).
(i) Severance Payments. The Company shall make the following payment in a
lump sum to Executive on the Effective Date in the amount of $350,000, less all
applicable federal, state and/or local taxes and all other authorized payroll
deductions. In addition, on December 8, 2003, the Company shall make a one time
payment to Executive in an amount equal to $137,500, less all applicable
federal, state and/or local taxes and all other authorized payroll deductions.
Executive agrees that he is fully and solely responsible for any and all other
income tax or withholding liability, if any, and all other taxes that may attach
to all amounts paid to him under this Agreement. Executive acknowledges and
agrees that the Executive severance payments provided under this Section 1(b)(i)
are, but for the mutual covenants and agreements set forth in this Agreement, in
addition to any consideration that he would otherwise be entitled to receive.
(ii) Stock Options. As of the Effective Date, all of the unvested stock
options granted to Executive under the Company's applicable stock option plans
shall vest automatically and become immediately exercisable. All stock options
owned by Executive are hereby amended to provide that such stock options shall
be exercisable, in whole or in part, until the earlier of (A) the expiration
date of such option as of the date hereof and (B) July 31, 2004, at which time
any unexercised options shall expire and be of no further force or effect.
(iii) Technology Reimbursement. The Company shall reimburse Executive in an
amount up to $3,000 for the purchase of computer and/or communications equipment
by Executive within three (3) business days of receiving reasonable
documentation relating to such expenses.
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Section 2. Return of Records and Equipment. Executive agrees to promptly
return all physical, computerized, electronic or other types of 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 and/or its affiliates or
subsidiaries, and any and all business dealings of said persons and entities.
Executive shall promptly return to the Company all computers that Executive has
been issued during the course of Executive's employment or which Executive
otherwise currently possesses. In addition, within thirty (30) days of the date
hereof, Executive shall return to the Company all other property or equipment
that Executive has been issued during the course of Executive's employment or
which Executive otherwise currently possesses, including, but not limited to,
any cellular phones, Blackberries, Palm Pilots, any other PDA devices and/or
pagers. Executive acknowledges that he is not authorized to retain any physical,
computerized, electronic or other types of copies of any such physical,
computerized, electronic or other types of records, documents, proposals, notes,
lists, files or materials, and is not authorized to retain any other property or
equipment of the Company or its affiliates and subsidiaries. Executive further
agrees that he will immediately forward to the Company any business information
regarding the Company and/or its affiliates and subsidiaries that has been or is
inadvertently directed to Executive following Executive's last day of employment
with the Company. The provisions of this paragraph are in addition to any other
written agreements on this subject that Executive may have with the Company
and/or any of its affiliates and subsidiaries, and are not meant to and do not
excuse any additional obligations that he may have under such agreements.
Section 3. Confidentiality; Non-solicitation.
(a) Confidentiality. Executive agrees that he will not use, disclose or
disseminate any trade secrets, confidential information or any other information
of a secret, proprietary, confidential or generally undisclosed nature relating
to the Company and/or its affiliates and subsidiaries, or their respective
businesses, contracts, projects, proposed projects, revenues, costs, operations,
methods or procedures. The provisions of this Section 3 are in addition to any
other written agreements on this subject that Executive may have with the
Company and/or any of its affiliates and subsidiaries, and are not meant to and
do not excuse any additional obligations that he may have under such agreements.
(b) Non-solicitation. Executive agrees that, for a period of eighteen (18)
months immediately following the Effective Date, Executive shall not either
directly or indirectly solicit, induce, recruit, or encourage to leave the
employment of the Company or its affiliates and subsidiaries for any reason
and/or to perform work for a competitor of the Company or its affiliates and
subsidiaries (as an employee, independent contractor, or otherwise) (such
conduct is collectively referred to as "solicitation") any person who is then
employed by the Company or its affiliates and subsidiaries or who left the
employ of the Company or its affiliates and subsidiaries less than six (6)
months prior to the solicitation; provided, however, that such restrictions
shall not apply to (i) general newspaper advertisements or similar public
postings of employment, provided that such solicitations are not directly
targeted at the Company's employees and (ii) employees of the Company or its
affiliates and subsidiaries that were terminated by the Company or its
affiliates and subsidiaries. The provisions of this Section 3(b) are in addition
to any other written agreements on this subject that Executive may have with the
Company and/or any of its affiliates and subsidiaries, and are not meant to and
do not excuse any additional obligations that he may have under such agreements.
Section 4. Restrictions on Certain Other Actions.
Subject to the provisions contained in the third to last paragraph of this
Section 4, Executive agrees that until July 31, 2004, except (i) upon the prior
written invitation of a majority of the Board or (ii) as otherwise contemplated
or permitted by this Agreement, Executive will not and will not permit any
affiliate or associate of the Executive to:
(a) make, or in any way participate in, any "solicitation" of "proxies" (as
such terms are defined or used in Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "1934 Act")) with respect to any debt or equity
securities of the Company (including by the execution of actions by written
consent), become a "participant" in any "election contest" (as such terms are
defined or used in Regulation 14A under the 0000 Xxx) with respect to the
Company or seek to advise, encourage or influence any person or entity with
respect to the voting of any securities of the Company;
(b) initiate or propose or otherwise solicit or participate in the
solicitation of stockholders for the approval of, one or more stockholder
proposals (including, without limitation, any proposal in respect of the
nomination or election of directors) relating to the Company (whether pursuant
to Rule 14a-8 under the 1934 Act or otherwise) or knowingly induce any other
individual or entity to initiate any stockholder proposal (including, without
limitation, any proposal in respect of the nomination or election of directors)
relating to the Company;
(c) form, join or in any way participate in a "group," act in concert with
any other person or entity or otherwise take any action or actions which would
cause him to be deemed to be part of a "group" (for purposes of Section 13(d) of
the 1934 Act), with respect to any securities of the Company;
(d) initiate, participate in or encourage the calling of a special meeting
of stockholders of the Company;
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(e) participate in or encourage the formation of any group which owns or
seeks or offers to acquire beneficial ownership of any securities of the Company
or rights to acquire such securities or which seeks or offers to affect control
of the Company or for the purpose of circumventing any provision of this
Agreement;
(f) solicit, seek or offer to effect, negotiate with, or make any statement
or proposal, whether written or oral, either alone or in concert with others, to
the Board, to any director or officer of the Company, or to any other
stockholder or stakeholder of the Company, or otherwise formulate any plan or
proposal or make any public announcement, proposal, offer or filing under the
1934 Act, any similar or successor statute or otherwise, or take action to cause
the Company to make any such filing, with respect to: (A) any form of business
combination or transaction involving securities of the Company including,
without limitation, a merger, tender offer, exchange offer or liquidation of the
Company's assets; (B) any form of restructuring, recapitalization or similar
transaction with respect to the Company or any affiliate thereof, including,
without limitation, a merger, exchange offer or liquidation of the Company's
assets; (C) any acquisition or disposition of any debt or equity securities of
the Company or any assets or claims material to the Company; (D) any request to
amend, waive or terminate the provisions of this Agreement; or (E) any proposal
or other statement inconsistent with the terms and intent of the Agreement;
provided, however, that Executive and his affiliates and associates may discuss
the affairs and prospects of the Company, the status of Executive's investment
in the Company and any of the matters described in clauses (A) through (E) of
this paragraph at any time, and from time to time, with his outside legal and
financial advisors, if as a result of any such discussions the Executive is not
required to make, and otherwise does not make, any public announcement or filing
under the 1934 Act otherwise prohibited by this Agreement as a result thereof;
(g) otherwise act (or permit any investment banker, attorney, accountant or
any other representative retained by him to take any action as part of such
retention), alone or in concert with others (including by providing financing
for another party), to seek or offer to control or influence, in any manner, the
management, Board or policies of the Company;
(h) knowingly instigate or encourage any third party to take any of the
actions enumerated in this Section 4; or
(i) sell, transfer or otherwise dispose of any debt or equity securities of
the Company in an effort to circumvent the restrictions set forth in this
Section 4 or take any other action that would in any way restrict, limit or
interfere with the performance of his obligations hereunder or the transactions
contemplated hereby.
Notwithstanding the foregoing, the restrictions on activities contained in
this Section 4 shall not apply to (i) a sale by the Executive of the Company's
common stock conducted in a commercially reasonable manner through market
transactions by a nationally recognized major brokerage house in an aggregate
amount not to exceed 5% of the outstanding common stock of the Company to any
other person or "group" or (ii) a sale by the Executive of the Company's common
stock in connection with the satisfaction of margin calls relating to bona fide
loans made to Executive by commercial lenders.
In the event of litigation relating to the enforcement of this Section 4,
the non-prevailing party will reimburse the prevailing party for its reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees
and court costs) incurred in connection with such litigation.
In the event the Company fails to make: (i) the December 8, 2003 payment
pursuant to Section 1(b)(i) of this Agreement or (ii) the payment pursuant to
Section 1 of that certain ADEA Release Agreement, dated as of November 8, 2003,
by and between the Company and Executive (the "ADEA Release Agreement"), in each
case within sixty (60) days of the date each such payment is due pursuant to the
terms thereof, Executive shall have the right to terminate the restrictions
imposed on Executive pursuant to this Section 4 (the "Termination Right");
provided, however, that this right shall apply only if Executive shall not have
revoked the ADEA Release Agreement in accordance with Section 2 thereof;
provided, further, that if Executive exercises the Termination Right, such
termination shall be Executive's sole and exclusive remedy with respect to the
Company's nonpayment of said amount and Executive shall not be entitled to seek
any other damages, monetary or otherwise.
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Section 5. Mutual Non-Disparagement Covenant. Executive agrees that he will
not in any way disparage the Company or its current and former officers,
directors and employees, verbally or in writing, or make any statements to the
press or to third parties that may reasonably be derogatory or detrimental to
the Company's good name or business reputation. Likewise, the Company shall not,
and shall instruct its senior employees and agents not to, in any way disparage
Executive, verbally or in writing, or make any statements to the press or to
third parties that may reasonably be derogatory or detrimental to Executive's
good name or business reputation. Each of the Directors agrees that he will not
in any way disparage Executive, verbally or in writing, or make any statements
to the press or to third parties that may reasonably be derogatory or
detrimental to Executive's good name or business reputation. Nothing in this
section shall preclude any party from responding truthfully to inquiries made in
connection with any legal or governmental proceeding pursuant to subpoena or
from making such other statements as may be required by applicable law.
Section 6. Public Announcements. The Company and Executive will consult
with each other before issuing, and provide each other with the reasonable
opportunity to review and comment upon, any press release with respect to the
transactions contemplated by this Agreement, and neither the Company nor
Executive shall issue any such press release without the prior approval of the
other party, in each case except as may be required by law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange.
Section 7. Release of Claims.
(a) Executive on his behalf and on behalf of each of his affiliates,
associates, personal representatives, representatives, executors, heirs,
administrators, successors, assigns, spouses, partners, beneficiaries,
attorneys, advisors, and agents (the "Executive Releasing Parties"), for good
and sufficient consideration, the receipt of which is acknowledged, releases
absolutely and forever discharges the Company and each of its predecessors,
successors, assigns, parents, subsidiaries, divisions, and affiliated companies,
and each of their respective former, current, and future officers, directors,
owners, managers, employees, partners, associates, representatives,
stockholders, attorneys, insurers, advisors, and agents, and each and all of
them (the "Company Released Parties"), from and against all liabilities, claims,
liens, causes of action, charges, complaints, grievances, obligations, costs,
losses, damages, injuries, attorneys' fees, and other legal responsibilities
(collectively referred to as "Claims"), of any form whatsoever, including, but
not limited to, any claims in law, equity, contract, tort, or any claims under
the Georgia Fair Employment Practices Act, the Georgia Equal Employment for
Persons with Disabilities Code, the Georgia Age Discrimination Act, the Georgia
Equal Pay Act, Title VII of the Civil Rights Act of 1964, the Americans With
Disabilities Act, the Civil Rights Act of 1991, the Rehabilitation Act of 1973,
the Employee Retirement Income Security Act of 1974, the Family and Medical
Leave Act of 1993, the Fair Labor Standards Act, the Worker Adjustment and
Retraining Notification Act of 1988, each as amended, or any other local
ordinance or federal or state statute or constitution, whether known or unknown,
unforeseen, unanticipated, unsuspected or latent, which Executive or Executive's
successors in interest now own or hold, or have at any time heretofore owned or
held, or may at any time own or hold (i) by reason of any matter or thing
arising from any cause whatsoever prior to the date of execution of this
Agreement and (ii) with respect to the retention of such professionals by the
Company as the Company deems necessary and appropriate, and without limiting the
generality of the foregoing, from all claims, demands and causes of action based
upon, relating to, or arising out of: (a) Executive's employment relationship
with the Company and/or any of its affiliates and subsidiaries and the
termination of that relationship, including, without limitation, under any
employment, change of control or severance agreements; (b) Executive's
relationship with the Company and/or its affiliates and subsidiaries as a member
of any boards of directors; (c) any other type of relationship (business or
otherwise) between Executive and the Company and/or its affiliates and
subsidiaries; (d) Executive's relationship as a stockholder, optionholder or
holder of any interest whatsoever in any of the Company Released Parties; and
(e) alleged or which could have been alleged in connection with those certain
actions captioned Avado Brands, Inc., Xxxxxx X. XxXxxx, Xx., and Xxxxxxxx X.
Xxxxxxx v. Xxxxxx Xxxxxxx-Xxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx
Xxxxx, filed in the Superior Court of Xxxxxx County, State of Georgia (the "
State Suit") and filed in the United States District Court for the Middle
District of Georgia, Athens Division (the "Federal Suit," and together with the
State Suit, the "Suits"); provided, however, that the foregoing release shall
not apply to claims by any Executive Releasing Party: (i) for fraud or
intentional misconduct or (ii) with respect to amounts due under the 11.75%
Senior Subordinated Notes of the Company, due June 2009, owned by Executive;
provided, further, that nothing herein shall be deemed to release any of
Executive's right to enforce this Agreement.
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(b) The Company, on its own behalf and on behalf of each of its
predecessors, successors, assigns, parents, subsidiaries, divisions, and
affiliated companies, and each of their respective former, current, and future
officers, directors, owners, managers, employees, partners, associates,
representatives, stockholders, attorneys, advisors, and agents and each and all
of them (the "Company Releasing Parties"), for good and sufficient
consideration, the receipt of which is acknowledged, release absolutely and
forever discharge Executive and each of his affiliates, associates, personal
representatives, representatives, executors, heirs, administrators, successors,
assigns, spouses, partners, beneficiaries, attorneys, advisors, and agents (the
"Executive Released Parties"), from and against all Claims, of any form
whatsoever, whether known or unknown, unforeseen, unanticipated, unsuspected or
latent, which the Company or the Company's successors in interest or its
affiliates in their capacity as affiliates of the Company now own or hold, or
have at any time heretofore owned or held, or may at any time own or hold by
reason of any matter or thing arising from any cause whatsoever prior to the
date of execution of this Agreement, and without limiting the generality of the
foregoing, from all claims, demands and causes of action based upon, relating
to, or arising out of: (a) Executive's employment relationship with the Company
and/or any of its affiliates and subsidiaries and the termination of that
relationship; (b) Executive's relationship with the Company and/or its
affiliates and subsidiaries as a member of any boards of directors; (c) any
other type of relationship (business or otherwise) between Executive and the
Company and/or its affiliates and subsidiaries; and (d) the Suits; provided,
however, that the foregoing release shall not apply to claims by any Company
Releasing Party: (i) for fraud or intentional misconduct; (ii) with respect to
any indebtedness for borrowed money owed by Executive to the Company, including,
without limitation, indebtedness for borrowed money owed by Executive pursuant
to that certain New Chairman Note, as more fully described in the Company's
Annual Report on Form 10-K for the fiscal year ended December 29, 2002, and all
documents related thereto; or (iii) with respect to the indebtedness owed by
Executive to Xx. Xxxxx in the approximate amount of $104,000; provided, further,
that nothing herein shall be deemed to release any of the Company's right to
enforce this Agreement.
(c) Each of the Company Releasing Parties and the Executive Releasing
Parties warrant that they have not assigned any alleged claim that is the
subject of this release to any other person or entity, and they are not aware of
any claim or potential claim other than those being released.
(d) This release and Agreement are not, and shall not be construed to be,
an admission of any breach of duty, liability or other wrongdoing whatsoever by
the Company Released Parties or the Executive Released Parties, and neither the
release nor the Agreement shall be offered or used as an admission or evidence
of any breach of duty, liability or other wrongdoing whatsoever. The Executive
Releasing Parties also acknowledge and agree that neither the Executive
Releasing Parties nor the Company Releasing Parties are the prevailing party in
the Suits and/or under any statute or regulation or otherwise.
(e) The Executive Releasing Parties agree, as soon as practicable after the
date hereof, to take all steps necessary to dismiss the Suits with prejudice as
a result of a mutual settlement, with each party to bear its own attorneys' fees
and costs.
(f) Executive represents and covenants that, other than the Suits, which
Executive will cause to be dismissed with prejudice in its entirety, Executive
has not filed, initiated or caused to be filed or initiated, any claim, charge,
suit, complaint, grievance, action or cause of action against any of the Company
Released Parties. Except to the extent that such waiver is precluded by law,
Executive further promises and agrees that Executive will not file, refile,
initiate, or cause to be filed, refiled or initiated any claim, charge, suit,
complaint, grievance, action, or cause of action based upon, arising out of, or
relating to any claim, demand, or cause of action released herein, nor shall
Executive participate, assist or cooperate in any claim, charge, suit,
grievance, complaint, action or proceeding regarding any of the Company Released
Parties, whether before a court or administrative agency or otherwise, unless
required to do so by law.
Section 8. Cooperation. Executive agrees that he will reasonably cooperate
in any claims, litigation or other legal actions in which the Company or its
subsidiaries or affiliates may become involved. Such cooperation shall include
Executive making himself available, upon the request of the Company and at the
Company's expense, for depositions, court appearances and interviews by
Company's counsel. To the maximum extent permitted by law, Executive agrees that
he will notify the Board, in care of the Chairman of Board, if he is contacted
by any government agency or any other person contemplating or maintaining any
claim or legal action against the Company or its subsidiaries or affiliates or
by any agent or attorney of such person.
Section 9. Miscellaneous Provisions.
(a) Fees and Expenses. Except as set forth in Section 4, each party hereto
agrees to bear its own fees and expenses relating to each of the matters
referred to, contemplated by or the subject of this Agreement.
(b) Amendment and Modification. This Agreement may be amended, modified and
supplemented only by written agreement of Executive and the Company. No waiver
of any breach of any term or provision of this Agreement shall be construed to
be, nor shall be, a waiver of any other breach of this Agreement. No waiver
shall be binding unless in writing and signed by the party waiving the breach.
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(c) Notices. All notices, requests, demands and other communications
required or permitted shall be made in writing by hand-delivery, telecopier
(with written confirmation) or air courier guaranteeing overnight delivery:
(i) If to the Executive, to:
Xxxxxx X. XxXxxx, Xx.
c/o Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
or to such other persons or addresses as Executive shall reasonably furnish
to the Company;
(ii) If to the Company, to:
Avado Brands, Inc.
Xxxxxxx at Washington
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
or to such other persons or addresses as the Company shall reasonably
furnish to Executive in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; when receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight delivery.
(d) Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall fail to be in effect only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement or of any such provision.
(e) Governing Law. This Agreement and the legal relations among the parties
hereto shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflicts of law doctrine.
(f) Jointly Drafted. Executive understands that this Agreement is deemed to
have been drafted jointly by the parties. Any uncertainty or ambiguity shall not
be construed for or against any party based on attribution of drafting to any
party.
(g) Counterparts. This Agreement may be executed simultaneously 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.
(h) Headings. The headings of the Sections of this Agreement are inserted
for convenience only and shall not constitute a part hereof or affect in any way
the meaning or interpretation of this Agreement.
(i) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, and, except as expressly stated in this Agreement, supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, relating to the subject matter hereof.
(j) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by a party of any covenants or agreements contained
in this Agreement will cause the other party to sustain injury for which it
would not have an adequate remedy at law for money damages. Therefore, each of
the parties hereto agrees that in the event of any such breach, the aggrieved
party shall be entitled to the remedy of specific performance of such covenants
and agreements and preliminary and permanent injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
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(k) Successors; Assignment; Third-Party Beneficiaries. This Agreement shall
be binding upon and shall inure to the benefit of each of the parties hereto,
and their respective heirs, legatees, executors, administrators, legal
representatives, successors and assigns, but except as otherwise provided for or
permitted herein neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other party; provided that the provisions of Section 7(a)
hereof are intended to be for the benefit of, and shall be enforceable by, each
Company Released Party and his, her or its heirs, legatees, executors,
administrators, legal representatives, successors and assigns; and provided,
further, that the provisions of Section 7(b) hereof are intended to be for the
benefit of, and shall be enforceable by, each Executive Released Party and his,
her or its heirs, beneficiaries and assigns. Except as set forth in the
immediately preceding sentence, this Agreement is solely for the benefit of the
parties hereto and shall not inure to the benefit of any third party.
(l) Reliance. Executive understands and acknowledges that reliance is
placed wholly upon Executive's own judgment, belief and knowledge as to the
propriety of entering into this Agreement. Executive further acknowledges that
he is relying solely upon the contents of this Agreement, that there have been
no other representations or statements made by the Company and/or its affiliates
and subsidiaries, and that Executive is not relying on any other representations
or statements whatsoever of the Company and/or its affiliates and subsidiaries
as an inducement to enter into this Agreement, and if any of the facts upon
which Executive now relies in making this Agreement shall hereafter prove to be
otherwise, this Agreement shall nonetheless remain in full force and effect.
(m) Counsel. Executive acknowledges that he has personally read this
Agreement and that he has reviewed, or has had the opportunity to review, this
Agreement with legal counsel of his own choosing. Executive further acknowledges
that he has been provided a full and ample opportunity to study this Agreement,
that it fully and accurately reflects the content of any and all understandings
and agreements between the parties concerning the matters referenced herein,
that there have been no other representations or statements made by the Company
and/or its affiliates and subsidiaries, and that Executive is not relying on any
other representations whatsoever as an inducement to execute this Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
AVADO BRANDS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
EXECUTIVE
By: /s/ Xxxxxx X. XxXxxx, Xx.
----------------------------------------
Name: Xxxxxx X. XxXxxx, Xx.
Solely for purposes of Section 5:
By: /s/ Xxxxxx Xxxxxxx-Xxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx-Xxxxx
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
X-0
