1
EXHIBIT 10.16
SEPARATION AGREEMENT
AND GENERAL RELEASE
Xxxx X. Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Dear Xxxx:
This letter will document our agreement concerning the termination of
your employment with Famous Dave's of America, Inc. (the "Company") on February
3, 1998 ("Termination Date"). The Company is prepared to offer you certain
benefits in exchange for your execution of this Separation Agreement and General
Release ("Separation Agreement"). The terms of the Company's Separation
Agreement with you are set forth in this letter. The Company hereby advises you
to consult legal counsel of your choice prior to signing this Separation
Agreement.
1. Benefits of Separation Agreement.
X. Xxxxxxxxx Pay
Within two (2) days following the date of your signature on this
Separation Agreement, the Company agrees to pay you the gross sum of
$175,000.00 as a severance benefit (the "Severance Payment"), subject
to all legally required withholding and deductions. You hereby
acknowledge that the severance payment is full and fair payment for the
release of your claims as set forth below and is equal or greater in
value than any severance benefit to which you are entitled.
B. Acceleration of Option Vesting and Extension of Exercise
Period
i. With respect to the Option Agreement dated as of
August 12, 1996 between you and the Company relating
to a total of 25,000 shares of common stock, which
option vested in full on the closing date of the
Company's initial public offering, you or your legal
representative shall have until December 31, 1998 to
exercise such option notwithstanding the provisions
of Section 5 of said Option Agreement.
ii. With respect to the Option Agreement dated as of
August 12, 1996 between you and the Company relating
to a total of 100,000 shares of common stock, in
addition to the portion of the option to purchase
25,000 shares which vested on August 12, 1997, an
additional portion of the option to purchase 65,000
shares shall vest on the date hereof. You or your
legal representative
2
shall have until December 31, 1998 to exercise all
vested portions of the option notwithstanding the
provisions of Section 4 of said Option Agreement. The
remaining unvested portion of the option to purchase
10,000 shares shall terminate on the date hereof.
iii. With respect the Option Agreement dated as of March
26, 1997 between you and the Company relating to a
total of 50,000 shares of common stock, no portion of
which has vested as of the date hereof, such option
shall terminate in full on the date hereof.
2. Employment Inquiries.
The Company agrees that all requests by third parties for information
concerning your employment with the Company will be handled by the
Company's Human Resources Department which, pursuant to Company policy,
is authorized to provide only basic employment history indicating dates
of employment, positions held, and responsibilities performed without
qualitative comment of any kind.
3. Tax Treatment.
You acknowledge that the Company has made no representation or warranty
whatsoever concerning the treatment for tax purposes of any payments
made pursuant to this Separation Agreement, that you have not relied
upon any such representation or warranty, and that the terms of this
Separation Agreement are not intended to guarantee any particular tax
treatment with regard to such payments.
4. Confidentiality.
You agree that Article IV of the Employment Agreement dated as of
August 12, 1996 between you and the Company, as amended (the
"Employment Agreement"), shall remain in full force and effect.
5. Non-Competition.
You agree that Article V of the Employment Agreement shall remain in
full force and effect.
6. Nondisclosure.
You agree that you will keep the terms of this Separation Agreement
confidential and that you will not disclose any of its terms to any
third party, other than to your spouse, financial advisor and legal
counsel. In turn, these persons shall be advised regarding the
confidentiality provisions of this Separation Agreement and must agree
to maintain the confidentiality of this Separation Agreement as a
condition of disclosure to them.
2
3
7. Entire Agreement.
This Separation Agreement constitutes the entire understanding between
you and the Company and supersedes all prior agreements with respect to
the matters herein relating to your employment and the termination of
your employment.
8. Release.
In exchange for receiving the payments and other consideration set
forth in this Separation Agreement, you hereby promise to give up all
of your claims against the Company. You hereby release, give up, and
otherwise relinquish all of your claims against the Company. You agree
that you will not bring any lawsuits or make any other demands against
the Company except if necessary to enforce the provisions of this
Separation Agreement. You agree that the money and benefits which you
will receive as set forth in this Separation Agreement are full and
fair payment for the release of all your claims. The Company does not
owe you anything in addition to what you will receive under this
Separation Agreement.
The claims which you are releasing, giving up, and otherwise
relinquishing as provided above include all of your rights to any
relief of any kind from the Company including, but not limited to:
a) All claims you have now, whether or not you now know about
the claims;
b) All claims for attorneys' fees;
c) All claims for alleged discrimination and all other claims
under federal, state, or local law;
d) All claims arising from your employment or separation from
employment with the Company, including, but not limited to,
any alleged breach of contract, wrongful termination,
interference with contract, defamation, promissory estoppel,
or infliction of emotional distress; and
e) All claims for any other alleged unlawful employment practices
arising out or relating to your employment or separation from
employment.
By your signature below, you acknowledge that you fully understand and
accept the terms of this Separation Agreement and Release and you represent and
agree that your signature is freely, voluntarily and knowingly given, having had
the advice and assistance of legal counsel. This Agreement does not constitute,
and shall not be construed as, an admission of fault or liability of any kind,
and the Company expressly denies any fault, liability or wrongdoing of any kind
with regard to you or any other employee.
3
4
For purposes of this paragraph, "you" means Xxxx X. Xxxxx and all and
anybody who has or acquires legal rights or claims through you; and "Company"
means Famous Dave's of America, Inc., and all and each of its parent,
subsidiary, and affiliated corporations, and all and each of the past and
present officers, directors, employees, agents, successors and assigns of the
foregoing entities.
You agree that this Separation Agreement shall be construed and
interpreted in accordance with the law of the State of Minnesota.
If you are in agreement with the terms set out in this letter, please
sign both copies and return one to me.
FAMOUS DAVE'S OF AMERICA, INC.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
Chairman of the Board
ACCEPTANCE
Read, agreed to, and accepted this 3rd day of February, 1998.
/s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
4
