SEVERANCE AND CONSULTING AGREEMENT AND RELEASE
THIS SEVERANCE AND CONSULTING AGREEMENT AND RELEASE (the
"Agreement") is made and entered into as of the 30th day of November,
2000, by and between Xxxxx Xxxxxxxx ("Xxxxxxxx") and Cooker
Restaurant Corporation, an Ohio corporation ("CRC").
WITNESSETH:
WHEREAS, Cockburn 's employment by CRC shall be terminated
effective November 30, 2000 and Cockburn shall receive severance
payment from CRC in connection with such termination; and
WHEREAS, in consideration for the severance payment from
CRC, Cockburn desires to release CRC from claims relating to his
employment and termination; and
WHEREAS, following termination of Cockburn 's employment,
CRC desires to engage Cockburn as an independent contractor to render
consulting services to CRC as described in greater detail in this
Agreement, and Cockburn desires to render such consulting services on
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, and intending to be legally bound
hereby, the parties hereto do hereby agree as follows:
1. Termination of Employment; Severance Payment.
---------------------------------------------
x. Xxxxxxxx 's employment with CRC and his service
on the board of directors of CRC shall be terminated effective
November 30, 2000. For all purposes, including employee benefit plan
purposes, Cockburn's service with CRC shall be treated as ending on
November 30, 2000. Cockburn hereby resigns a s a director of CRC
effective November 30, 2000.
b. CRC agrees to pay or provide to Cockburn as
consideration for the execution hereof (the "Severance Consideration")
the following:
i. A Consulting Agreement with CRC on the terms set
forth below.
ii. Cockburn shall continue to participate in the CRC
Bonus Plan, a copy of which is attached hereto as
Exhibit A, for one year from the execution
hereof, with the bonus payment for the second
half of 2001 to be pro-rated on a per diem basis;
iii. Cockburn shall be entitled to continue to use the
Exhibit 10.30-Pg. 1
company automobile currently used by him until
the earlier of: (a) six months from the execution
hereof; or (b) the expiration of the current
lease for such automobile.
iv. Cockburn may retain the use of the cellular
telephone at CRC's expense until December 31,
2000.
x. Xxxxxxxx shall have the right pursuant to COBRA
to continue individual participation in the CRC's
health insurance plan for eighteen (18) months
after the execution hereof at CRC's expense, but
shall not be eligible for Exec-U-Care payments.
However CRC will pay up to $3,750 in the
aggregate of non-covered medical expenses
incurred by Cockburn during such eighteen month
period.
vi. CRC shall convey to Cockburn by xxxx of sale, at
no cost to Cockburn, the desk, chair, and
desktop personal computer in Cockburn's office at
CRC, but not the laptop personal computer which
Cockburn has been using.
vii. Cockburn shall be permitted to purchase and CRC
shall sell to Cockburn the Squirrel point-of-sale
system from CRC for the sum of One Dollar
($1.00).
viii. Cockburn's currently vested options to purchase
shares of CRC stock shall be and are hereby
amended to become non-qualified options for the
same number of shares and at the same exercise
price as the current options which will not
expire by reason of the termination of his
employment with CRC. If CRC offers its employees
generally the opportunity to exchange their
current options for options with a lower exercise
price, Cockburn shall be given the opportunity to
exchange his options on the same basis as CRC
employees.
But for this Agreement, Cockburn would not be entitled to the
Severance Payment.
2. Release. The following releases apply only to matters
which occurred prior to or on the date of execution hereof, and are
not intended to release claims arising from events or actions which
occur after the execution hereof:
a. For the consideration set forth in Section 1(b),
Cockburn agrees to release CRC, each of its subsidiaries and
affiliates, and each of their officers, directors, successors,
assigns, agents and employees from any and all claims or causes of
action that he may now have, or know about, or which he may hereafter
learn about, arising from or during his employment or resulting from
the termination of his employment by CRC or relating in any way to
events, occurrences, conducts, matters, causes or things that arose or
Exhibit 10.30-Pg. 2
occurred prior to or on the execution hereof. Cockburn agrees that
he will not file any claim, charge or lawsuit for the purpose of
obtaining any monetary award above and beyond the amounts provided for
in this Agreement, or for reinstatement of his employment or for any
equitable relief.
b. As a material inducement to enter into this
Agreement, and for good and valuable consideration described herein,
Cockburn , for him and for his spouse and family, heirs, executors,
administrators, personal representatives, any future estate(s), and
assigns (collectively "Releasors"), hereby irrevocably and
unconditionally releases and forever discharges CRC, its past and
present owners, stockholders, assigns, agents, directors, officers,
trustees, employees, representatives, attorneys, and its divisions,
parent companies, affiliates, successors and predecessors, (and the
past, present and future agents, directors, officers, employees,
shareholders, representatives and attorneys of the above), and the
heirs, assigns, partners, officers, directors, shareholders,
employees, or agents of each of the aforementioned individuals or
entitles and all persons acting, by, through, under, or in concert
with any of them (collectively "Releasees"), in their personal,
individual, official, and/or corporate capacities, from any and all
claims, liabilities, promises, controversies, damages, actions, causes
of action, suits, charges, investigations, demands, costs, losses,
debts and expenses of any kind or nature whatsoever, whether based in
tort, fraud, contract, statute, common law, or any other legal theory
and whether Cockburn possesses them now or may possess them in the
future arising from and relating to Cockburn 's employment with CRC,
specifically including, but not limited to, (1) all claims of
employment discrimination based on race, color, religion, sex, and
national origin, as provided under Title VII of the Civil Rights at of
1964, as amended, or any Executive Order, (2) all claims arising under
the Age Discrimination in Employment Act, as amended, 29 U.S.C.
Sec. 621 et al. (ADEA), or under any other federal, state, local or
common law, statutes, ordinances, directives, regulations, or orders
(including any Executive Order) prohibiting or addressing
discrimination on account of age including the present effects of past
acts; (3) claims under the Older Workers' Benefit Protection Act
("OWBPA"), (4) all claims of discrimination based on handicap or
disability under the Americans with Disabilities Act, (5) all claims
of employment discrimination under any state or local statute, law or
ordinance, (6) all claims for retaliation or reprisal of any nature
whatever, including any reprisal claim under ADEA, (7) slander, (8)
defamation, (9) tortious interference with contract, (10) public
policy tort, (11) abusive discharge, (12) wrongful discharge, (13)
civil conspiracy, (14) invasion of privacy, (15) workers' compensation
benefits, (16) personal injury of any nature, and (17) claims arising
under any federal, state, local or common law, including the Fair
Labor Standard Act, statute, ordinance, regulation, directive, or
order (including any Executive Order) regulating or addressing wages
and hours of employment or other terms and conditions of employment,
whether suspected or unsuspected, whether known or unknown, whether
specifically mentioned herein or not, which may exist or might be
claimed to exist, and claims which Cockburn now has, or claims to
have, or which Cockburn at anytime heretofore had, or claimed to have
against each or any of the Releasees. Cockburn expressly
acknowledges that this is a final and general release.
x. Xxxxxxxx further covenants and agrees never to
institute, directly or indirectly, or participate as a party in any
action or proceeding of any kind against CRC or its subsidiaries,
successors, assigns, agents, shareholders, officers and directors,
attorneys, or any of the Releasees identified relating to or arising
out of the employment relationship between CRC and Cockburn.
Exhibit 10.30-Pg. 3
x. Xxxxxxxx understands that the release contained
herein is a general release, and represents that he has been advised
by his counsel of the legal and practical effect of a general release,
and recognizes that he is executing and delivering this release,
intending thereby to be legally bound by the terms and provisions
thereof, of his own free will, without promises or threats or the
exertion of duress. Cockburn acknowledges that he has had adequate
time and opportunity to review it, have it explained to him, and
understands its provisions.
e. This release shall not waive, compromise,
preclude or prejudice Cockburn's right to seek contribution, indemnity
and a defense from CRC should Cockburn ever be the subject of a
lawsuit or claim brought by another against him for any acts or
omissions committed by him during the course and scope of his
employment by CRC.
x. Xxxxxxxx affirms that he has carefully read all
of the provisions in this Agreement, that he understands all of the
terms hereof, that this Agreement has been fully explained to him by
his counsel, that he fully understands its final and binding effect,
and that he, of his own volition, signs this Agreement after
consultation with and upon the advice of counsel.
3. Engagement as Consultant.
-------------------------
a. Effective December 1, 2000, CRC hereby retains
and engages Cockburn for a term of eighteen (18) months to render to
CRC consulting services on an as-requested basis with respect to CRC's
recipes, kitchen operations or such other matters as CRC may request
from time to time. Cockburn hereby accepts such engagement and agrees
to render such consulting services as are reasonably requested by CRC
from time to time until termination of this engagement, all upon the
terms and conditions herein set forth.
b. It is understood that Cockburn is to act as a
consultant and adviser to CRC, and after November 30, 2000 shall not
be an employee, agent of, or co-venturer with CRC in any respect.
Cockburn shall have no right, authority, or power to act for or on
CRC's behalf. The relationship between CRC and Cockburn shall be
that of independent contractor.
c. In consideration of the execution hereof and
performance by Cockburn of his obligations under Section 1(a) above,
CRC agrees to pay Cockburn, or to his estate in the event of his
death, a consulting fee of $13,333.33 per month, payable monthly in
arrears for eighteen (18) months, payable on or before the first
Tuesday in the following month. Such payments shall not be terminated
or affected by Cockburn's death.
d. CRC acknowledges that payment of the consulting
fees provided for in this section is a material provision of this
agreement, and failure to pay such fees would constitute a material
breach of this agreement by CRC.
4. Noncompetion; Nonsolicitation. Cockburn covenants
that, for a period of eighteen months from the execution hereof:
Exhibit 10.30-Pg. 4
a. He will not be employed as an employee,
consultant, or otherwise by any person, corporation or other entity
which operates four (4) or more casual dining restaurants, any one (1)
of which is located in a city in which CRC operates a restaurant.
b. He will not, otherwise than on behalf of CRC or
any subsidiary or any entity controlled, directly or indirectly, by
CRC (collectively, the "CRC Group"), solicit the employment of any
person, or induce or advise any person to leave the employ of any
member of the CRC Group, if such person is, as of the date of such
solicitation, inducement or advisement, employed on a full- or part-
time basis by any member of the CRC Group.
5. Confidentiality.
----------------
x. Xxxxxxxx covenants that from and after the date
hereof he will keep confidential from third parties all Confidential
Information (as defined below) of the CRC Group which is known to him
and, except with the specific prior written consent of CRC or as
required to be disclosed by law or the order of any agency, court or
other governmental authority, not disclose any Confidential
Information to any person except members of the CRC Group and their
employees, accountants, counsel and other designated representatives,
and except any restaurant owned and operated by any person,
corporation or other entity controlled by you which operates fewer
than four (4) restaurants, none of which are located in a city in
which CRC operates a restaurant. "Confidential Information" of the
CRC Group means all know-how, trade secrets and other confidential or
nonpublic information prepared for, by or on behalf of, or in the
possession of, any member of the CRC Group, including without
limitation (i) nonpublic proprietary information, including recipes,
operating procedures, layouts, and designs; (ii) other information
derived from reports, investigations, research, studies, work in
progress, codes, marketing, sales or service programs, capital
expenditure projects, cost summaries, equipment, produce or system
designs or drawings, pricing or other formulae, contract analyses,
financial information, projections, customer lists, agreements with
vendors, joint venture agreements, confidential filings with any
agency, court or other governmental authority; and (iii) all other
concepts, methods, techniques and processes of doing business or
developing ideas or information that can be used in the operation of a
business or other enterprise and is sufficiently valuable, or
potentially valuable, and secret to afford an actual or potential
economic advantage over others. Confidential Information of the CRC
Group does not include any information that currently is generally
available to and generally known by the public or, through no fault of
Cockburn or any other person who has a fiduciary or contractual
obligation not to disclose such information, hereafter becomes
generally available to and generally known by the public.
x. Xxxxxxxx hereby acknowledges and agrees that
this Agreement is confidential, and this confidentiality provision is
a material term of this Agreement. Except as required by legal
process, the parties agree that they will not disclose, publicize, or
discuss this Agreement or any of its terms or conditions with anyone,
except a spouse, if any, attorney, and/or accountant. In the event
Cockburn discloses this Agreement or any of its terms or conditions
to his spouse, attorney, and/or accountant, it shall be Cockburn 's
duty, responsibility and obligation to advise said individual(s) of
the confidential nature of this Agreement and direct them not to
disclose, publicize, or discuss this Agreement or any of its terms and
conditions with anyone else.
Exhibit 10.30-Pg. 5
6. Injunction. Cockburn acknowledges and agrees that,
in the event of a material breach of Section 4 or 5 hereof by Cockburn
, CRC and the other members of the CRC Group would be irreparably
harmed and that monetary damages would be an inadequate remedy in
favor of CRC and the other members of the CRC Group. Accordingly,
Cockburn and CRC agree that in the event of such a breach, CRC and
the other members of the CRC Group shall be entitled to injunctive
relief, in addition to and not in lieu of any other rights and
remedies available to CRC or the other members of the CRC Group,
against Cockburn .
7. Termination; Effect of Termination.
-----------------------------------
a. In the event of a material breach of this
Agreement by Cockburn which remains uncured ten days after notice from
CRC to Cockburn , CRC shall be entitled, in addition to any remedy
available to it at law or in equity, to terminate this Agreement and
all payments hereunder.
x. Xxxxxxxx understands and agrees that if he files
any claim, charge or lawsuit against CRC seeking payment of any money
or benefits in connection with his previous employment with CRC or in
connection with his engagement as a consultant hereunder in excess of
the amounts provided hereunder, or seeking any equitable relief in
connection with his previous employment with CRC or in connection with
his engagement as a consultant hereunder, CRC may discontinue the
payment of the payments provided for herein and may institute an
action to recover any portion of the Severance Payment already paid
under this Agreement.
c. In the event of a breach of this Agreement by
CRC, Cockburn shall be entitled, in addition to any remedy available
to him at law or in equity, to terminate this Agreement upon written
notice to CRC.
d. Upon termination of this Agreement pursuant to
this Section 7, Cockburn shall be entitled to receive compensation
for consulting services accrued but unpaid through the effective date
of termination.
e. Notwithstanding anything contained herein to the
contrary, Cockburn acknowledges and agrees that his obligations
described in Sections 2, 4 and 5 of this Agreement shall survive the
termination of this Agreement.
8. Consideration Period. Cockburn acknowledges that he
has been advised to consult with an attorney or other advisor of his
choice prior to signing this Agreement and that he has been given a
period of at least twenty-one (21) days in which to consider this
Agreement. Cockburn acknowledges that, in considering whether to
enter into this Agreement, he has not relied upon any representation
or statement, written or oral, not set forth in this Agreement and
that he has not been threatened or coerced into signing this Agreement
by any official or representative of CRC. Cockburn acknowledges that
he has read the Agreement carefully, fully understands its terms,
consequences and the effect of it, and voluntarily enters into and
accepts the terms of this Agreement.
Exhibit 10.30-Pg. 6
9. Revocation Period. Cockburn understands that this
Agreement may be revoked by him at any time during the seven (7) day
period beginning on the date on which he has executed it. This
Agreement shall not become effective and Cockburn shall receive no
payment of any amount to which he may be entitled under the terms of
this Agreement until such period has expired. If this Agreement shall
not be revoked as permitted hereunder, CRC shall make the Severance
Payment set forth in Section 1(b) hereof.
10. Severability: Headings. In the event that any
provision of this Agreement is declared invalid or unenforceable, such
invalidity or unenforceability shall in no way effect the validity or
enforceability of any other provision. The clauses and provisions of
this Agreement that are deemed to be invalid or unenforceable shall be
limited so that they shall remain in effect to the extent permitted by
law. The headings herein are for reference purposes only and are not
intended in any way to describe, interpret, define, or limit the
extent or intent of this Agreement or any part hereof.
11. Modification. No modification, amendment, or waiver
of any of the provisions of this Agreement shall be effective unless
made in writing specifically referring to this Agreement, and signed
by each of the parties hereto.
12. Successors and Assigns. The rights and obligations of
CRC hereunder shall be binding upon and run in favor of the successors
and assigns of CRC. The rights and obligations of Cockburn hereunder
shall be binding upon and run in favor of the heirs, successors,
assigns, and legal or personal representatives of Cockburn . Cockburn
may not assign, transfer, or otherwise dispose of any of his rights or
obligations without the prior written consent of CRC, other than by
will or intestate succession upon his death.
13. Notices. All notices and other communications
pursuant to this Agreement shall be in writing and shall be deemed
given if delivered personally, sent by nationally recognized,
overnight courier, or mailed by registered or certified mail (return
receipt requested), postage prepaid, or sent by facsimile (followed
with a copy sent by courier or registered or certified mail) to the
parties at the following addresses (or at such address for a party as
shall be specified by notice hereunder):
To CRC:
Cooker Restaurant Corporation
0000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Boult, Cummings, Xxxxxxx & Xxxxx PLC
Attn. Xxxxx X. Xxxx
000 Xxxxx Xx., Xxx. 0000
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Exhibit 10.30-Pg. 7
To Cockburn :
Xxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxxx Xxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxxxxx, P.A.
00000 Xxxxx Xx. 0, Xxxxx 000
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of delivery by nationally recognized
overnight courier, on the business day following dispatch, (c) in the
case of mailing, on the fifth business day following such mailing, and
(d) in the case of a facsimile, when the party receiving such
facsimile shall have confirmed receipt of the communication (or when
the copy sent by courier or registered or certified mail shall have
been deemed to have been received pursuant to clause (a), (b), or
(c)).
14. Entire Agreement: Governing Law. This Agreement shall
constitute the entire Agreement between the parties with respect to
the subject matter hereof and shall be governed by the laws of the
State of Tennessee without regard to the principles of conflict of
laws thereof.
15. Prevailing Party. In the event of any dispute that
results in a suit or other legal proceeding to construe or enforce any
provision of this Agreement or because of an alleged breach, default,
or misrepresentation in connection with any of the provisions of this
Agreement, the parties agree that the prevailing party (in addition to
all other amounts and relief to which such party may be entitled)
shall be entitled to recover reasonable attorneys' fees and other
costs incurred in any action or proceeding.
16. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall
constitute an original hereof, but all of which together shall
constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first above written.
Exhibit 10.30-Pg. 8
ACKNOWLEDGMENT OF RECEIPT
-------------------------
I acknowledge that this Severance and Consulting Agreement
and Release (the "Agreement") was given to me by the Company on the
date set forth below, and that I have twenty-one (21) days from such
date to decide whether to sign this Agreement. I understand that if I
elect not to sign the Agreement, I will receive no payment from the
Company because of the termination of my employment. I have been
advised by the Company to consult with an attorney of my choice before
signing this Agreement. I understand that by signing this
Acknowledgment, I am not agreeing to any terms of the Agreement or
giving up any rights that I may have.
DATED this 14th day of January, 2001.
RECEIPT ACKNOWLEDGED:
/s/Xxxxx Xxxxxxxx
-------------------------------
XXXXX XXXXXXXX
COOKER RESTAURANT CORPORATION
By: /s/Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
--------------------------
Title: Vice President CFO
-------------------------
Date: 1-15-01
--------------------------
EXECUTION:
/s/Xxxxx Xxxxxxxx
-----------------
XXXXX XXXXXXXX
Dated: 1-14-01
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Exhibit 10.30-Pg. 9
