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EXHIBIT 10.48
SETTLEMENT AGREEMENT AND GENERAL RELEASE
dated as of October 29, 1997.
WHEREAS, Xxxxxxx X. Xxxxxx ("Xx. Xxxxxx") has been employed
by Bruno's, Inc. (the "Company"); and
WHEREAS, Xx. Xxxxxx and the Company have entered into an
agreement regarding Xx. Xxxxxx'x termination by the Company as Chief Executive
Officer, Chairman of the Board and Member of the Board of Directors of the
Company, membership on any committee or subcommittee of the Board of Directors
of the Company or any of its subsidiaries, and all other positions held by Xx.
Xxxxxx at the Company or any of its subsidiaries, the effective date of such
termination being September 19, 1997 (the "Effective Date"); and
WHEREAS, Xx. Xxxxxx and the Company have reached a full and
final compromise and settlement of all matters, disputes, causes of action,
claims, contentions and differences between them and the Company's divisions,
merged entities and affiliates, subsidiaries, parents, branches, predecessors,
successors, assigns, officers, directors, trustees, employees, agents,
stockholders, administrators, representatives, attorneys, insurers or
fiduciaries, past, present or future (the "Released Parties"), including but not
limited to any and all claims arising from or derivative of Xx. Xxxxxx'x
employment with the Company and his termination from employment with the
Company; and
WHEREAS, as a condition precedent to the Company performing
its obligations as provided for herein, Xx. Xxxxxx agrees that he will execute
and comply fully with the terms of this Settlement Agreement and General Release
(the "Release"); and
WHEREAS, Xx. Xxxxxx (i) is represented by Xxxxxxx Xxxxxx of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) and (ii) understands that in
executing the Release he is,
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inter alia, giving up any rights and claims he may have under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section 621 et
seq. ("ADEA"), and (iii) has been given a period of not less than twenty-one
(21) days within which to consider this Release;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, Xx. Xxxxxx and the Company agree and covenant
as follows:
1. By entering into this Release, the Released Parties do not
admit, and each specifically denies, any liability, wrongdoing or violation of
any law, statute, regulations, agreement or policy.
2. The Company agrees to treat Xx. Xxxxxx'x resignation of his
employment with the Company, effective September 19, 1997, as a termination
without "Cause" by the Company, under the terms of the employment agreement
between Xx. Xxxxxx and the Company dated August 17, 1995 (the "Employment
Agreement").
3. In consideration of the obligations upon Xx. Xxxxxx as set
forth in this Release, and in full settlement and final satisfaction of any and
all claims, contractual or otherwise, which Xx. Xxxxxx had, has or may have
against the Company or the Released Parties with respect to his employment, the
termination of his employment with the Company, or otherwise arising on or prior
to the date of execution of this Release, except to the extent that any such
claim concerns an allegation that the Company has failed to comply with any
obligations created by this Release:
(a) The Company agrees to pay (or has paid) to Xx. Xxxxxx
the xxxxx amount of Nine Hundred Sixty Thousand Dollars ($960,000.00), less
withholding taxes and other deductions required by law. The payment described in
this subparagraph 3(a) shall be made as follows:
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(i) Twenty-Four Thousand Six Hundred and Fifteen
Dollars and Thirty-Eight Cents ($24,615.38) by check, direct deposit or wire
transfer to Xx. Xxxxxx, shall be delivered to Xx. Xxxxxx in thirty-nine (39)
bi-weekly installments;
(ii) In satisfaction of two of the thirty-nine (39)
bi-weekly installments required under Section 3(a)(i), above, payments totalling
Forty-Nine Thousand Two Hundred and Thirty Dollars and Seventy-Six Cents
($49,230.76) have been made to Xx. Xxxxxx prior to the execution of this
Release; and
(iii) The remaining thirty-seven (37) bi-weekly
installments in the amount of Twenty-Four Thousand Six Hundred and Fifteen
Dollars and Thirty-Eight Cents ($24,615.38) each shall be made in accordance
with Section 3(a)(i), above.
(b) The Company further agrees to compensate Xx. Xxxxxx
for sixteen (16) accrued, but unused, vacation days, the payment of which shall
be made in a cash lump sum of Twenty-Four Thousand, Six Hundred and Fifteen
Dollars and Thirty-Eight Cents ($24,615.38), less withholding taxes and other
deductions required by law.
4. Xx. Xxxxxx, for and in consideration of the payments as
set forth in this Release and for other good and valuable consideration, hereby
releases and forever discharges, and by this Release does release and forever
discharge, the Released Parties of and from all debts, obligations, promises,
covenants, collective bargaining obligations, agreements, contracts,
endorsements, bonds, controversies, suits or causes of actions known or unknown,
suspected or unsuspected, of every kind and nature whatsoever, which may
heretofore have existed or which may now exist, including but not limited to
those arising under the ADEA, Title VII of the Civil Rights Act of 1964,
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as amended, 42 U.S.C. Section 2000e et seq., the Fair Labor Standards Act, as
amended, 29 U.S.C. Section 201 et seq., the Equal Pay Act, as amended, 29 U.S.C.
Section 206(d), the Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. Section 1001 et seq., the Americans with Disabilities Act, as amended,
42 U.S.C. Section 12101 et seq., the Reconstruction Era Civil Rights Act, as
amended, 42 U.S.C. Section 1981 et seq., the Rehabilitation Act of 1973, as
amended, 29 U.S.C. Section 701 et seq., the Family and Medical Leave Act of
1992, 29 U.S.C. Section 2601 et seq., and any and all state or local laws
regarding employment discrimination and/or federal, state or local laws of any
type or description regarding employment, including but not limited to any
claims arising from or derivative of Xx. Xxxxxx'x employment with the Company
and Xx. Xxxxxx'x resignation from employment with the Company or otherwise, as
well as any rights or claims Xx. Xxxxxx or his attorney has or may have for
costs, expenses, attorneys' fees or otherwise. Nothing contained herein shall
affect Xx. Xxxxxx'x rights under any Company defined contribution plan.
5. Xx. Xxxxxx covenants and agrees not to xxx, file any
grievance, arbitration or other proceeding, administrative or judicial, against
the Released Parties in any court of law or equity, or before any administrative
agency, with respect to any matter whatsoever released hereby, including but not
limited to matters arising from or derivative of Xx. Xxxxxx'x employment with
the Company and Xx. Xxxxxx'x resignation from employment with the Company or
otherwise.
6. (a) Xx. Xxxxxx and the Company expressly understand and
agree that the Company's obligations under this Release are in lieu of any and
all other amounts to which Xx. Xxxxxx might be, is now or may become entitled to
receive from the Released Parties upon any claim whatsoever and, without
limiting the generality of the foregoing, Xx. Xxxxxx expressly waives any right
or claim that he may have or assert to employment or reinstatement to employment
with the Released Parties, or payment for backpay, front pay, interest, bonuses,
damages, accrued vacation, accrued sick leave, medical, dental, optical or
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hospitalization benefits, accidental death and dismemberment coverage, long term
disability coverage, stock options, pensions, education benefits, automobile
usage benefits, life insurance benefits, overtime, severance pay, liquidated
damages and/or attorneys' fees or costs. Nothing contained herein shall affect
Xx. Xxxxxx'x rights under any Company defined contribution plan.
(b) The Company agrees to continue Xx. Xxxxxx'x coverage
under any medical, dental, disability and life insurance plans in which Xx.
Xxxxxx is currently enrolled for a period of 18 months, to terminate on March
20, 1999. Thereafter, Xx. Xxxxxx may, at his option and as provided for under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, 29
U.S.C. Section 119, et seq., continue his medical insurance coverage, at his
own, and not the Company's, expense.
7. (a) Xx. Xxxxxx agrees to sell, at such time or times as the
Company shall indicate, all shares of Common Stock in the Company held by him as
of the Effective Date through a broker designated by the Company. Xx. Xxxxxx
further agrees to enter into all customary documents in connection with the
opening and administration of brokerage accounts and to enter into and, if
required, file all such documents as are necessary to comply with federal and
state securities laws, and agrees to cause the proceeds of the sale(s) of his
shares of Common Stock in the Company to be remitted pursuant to Section 7(b),
below.
(b) Xx. Xxxxxx agrees to use all proceeds from the sale(s)
of his shares of Common Stock in the Company to repay the outstanding principal
amount of the promissory note executed by Xx. Xxxxxx as of February 15, 1996,
payable to the Company (the "Note"), plus the amount of accrued but unpaid
interest on the Note. Upon completion of the sale of all of Xx. Xxxxxx'x shares
of Common Stock in the Company and upon the transfer
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of all such sale proceeds to the Company, the Company shall cancel the Note and
any remaining indebtedness of Xx. Xxxxxx thereunder.
8. (a) Xx. Xxxxxx agrees that, without limiting the Released
Parties' remedies, any material violation or breach by him of this Release shall
give rise to an action by the Company for relief including, but not limited to,
damages caused by such breach and shall forever release and discharge the
Company from the performance of its obligations arising from this Release but
shall not release Xx. Xxxxxx from the performance of his obligations pursuant to
this Release. In no event shall Xx. Xxxxxx be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to Xx.
Xxxxxx under any of the provisions of this Release; and no amount payable under
this Release shall be reduced because Xx. Xxxxxx receives salary, compensation
or benefits in respect of any other employment or business activity, except as
provided in Section 10.
(b) Xx. Xxxxxx agrees not to make any material disparaging
statements about the Company, the Released Parties or the Company's personnel
policies and practices to any of the Company's customers, competitors,
suppliers, employees, former employees, or the press or other media in any
country.
(c) The Company agrees not to issue any press release or
other media announcement of any material disparaging statements about Xx. Xxxxxx
to any person and shall use its reasonable best efforts to avoid having any of
its officers or directors make any such statements.
9. (a) Xx. Xxxxxx represents that he will return to the
Company any letters, files, documents, equipment, supplies, security access
passes, property or other items in his possession or control which were
entrusted or issued to him during the course of his employment with the Company.
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(b) Xx. Xxxxxx further agrees and covenants, as a
condition of the Company's performance of its obligations arising from this
Release, that Xx. Xxxxxx will regard and preserve as confidential all personnel
information pertaining to present and former employees of the Company or the
Released Parties that has been obtained by Xx. Xxxxxx in the course of his
employment, whether he has such information in his memory or in writing or in
any other physical form, and will otherwise regard and preserve all other
nondisclosure obligations pursuant to Section 13(a) of the Employment Agreement.
(c) The Company represents and warrants that, to the
knowledge of its officers and directors, as of the date hereof the Company has
no claim against Xx. Xxxxxx for any breach of his duties or responsibilities
committed while employed by the Company.
10. (a) Xx. Xxxxxx further covenants and agrees, as a
condition of the Company's performance of its obligations arising from this
Release, that Xx. Xxxxxx will regard and preserve all noncompete and other
obligations specifically set forth in Sections 13(b) and (c) of the Employment
Agreement.
(b) Xx. Xxxxxx agrees that he will not apply for or
otherwise seek employment with the Released Parties.
11. Xx. Xxxxxx and the Company expressly covenant and agree
that the covenant not to compete as established in Section 13 of the Employment
Agreement is a reasonable covenant under the circumstances, and covenant and
agree to be bound by Section 13(d) of the Employment Agreement.
12. The Company shall indemnify, in accordance with the
Articles of Incorporation of the Company and to the fullest extent of applicable
law, Xx. Xxxxxx if he becomes a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("Claim"),
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by reason of the fact that he was a director, officer, employee or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation (including but not limited to
a subsidiary or affiliate of the Company), partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in defending a
civil or criminal action, suit or proceeding. Expenses of Xx. Xxxxxx incurred in
defending a civil or criminal action, suit or proceeding will be paid by the
Company as they are incurred upon receipt of an undertaking by or on behalf of
Xx. Xxxxxx to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the Company.
The Company's obligations described in this paragraph shall continue for a
period of not less than five (5) years after the Effective Date; provided,
however, that all rights to indemnification in respect of any Claim asserted or
made within such period shall continue until the final disposition of the Claim.
13. Should any provision of this Release be found to be in
violation of any law, or ineffective or barred for any reason whatsoever, the
remainder of this Release shall be in full force and effect to the maximum
extent permitted by law.
14. The Company and Xx. Xxxxxx agree to execute such other
documents and to take such other actions as may be reasonably necessary to
further the purposes of this Release.
15. (a) Xx. Xxxxxx acknowledges and agrees that, in deciding
to execute this Release, he has had the opportunity to consult with legal,
financial and other personal advisors of his own choosing as he deems
appropriate, in assessing whether to execute this Release and that he has
consulted with legal counsel. Xx. Xxxxxx represents and acknowledges that no
representations, statement, promise, inducement, threat or suggestion has been
made by the
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Company or the Released Parties to influence him to sign this Release except
such statements as are expressly set forth herein. Xx. Xxxxxx agrees that he has
been given a minimum of twenty-one (21) days within which to consider the terms
and effects of this Release and to consult with, and to ask any questions that
he may have of anyone, including legal counsel and other personal advisors of
his own choosing, and that he has executed this Release voluntarily and with
full understanding of its terms and effects. Xx. Xxxxxx further agrees that no
fact, evidence, event or transaction currently unknown to him but which
hereafter may become known to him shall affect in any way or manner the final
and unconditional nature of this Release.
(b) This Release shall not become effective until the 8th
day following the date on which Xx. Xxxxxx signs this Release as indicated
below, and no payments shall be due, owing or paid by the Company unless and
until the Release becomes effective, it being understood between Xx. Xxxxxx and
the Company that Xx. Xxxxxx has a period of seven (7) days within which to
revoke such signature.
16. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume and
agree expressly to perform this Release in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Thereafter the Company (prior to such succession) shall have no
further obligations with respect to this Release but will continue to be
entitled to the benefit hereof. As used in this Release, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Release, by
operation of law or otherwise.
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17. The respective rights and obligations of the parties
hereunder shall survive any termination of this Release to the extent necessary
to the intended preservation of such rights and obligations. The provisions of
this section 17 are in addition to the survivorship provisions of any other
section of this Release.
18. The foregoing represents the entire agreement between Xx.
Xxxxxx and the Company and supersedes all prior agreements or understandings,
written or oral, between them. This Release may not be changed or modified,
except by a written instrument signed by Xx. Xxxxxx and the Company.
19. This Release shall be construed, interpreted and governed
in accordance with the laws of the state of Alabama, without reference to rules
relating to conflicts of law.
20. This Release may be executed in two or more counterparts,
each of which will be deemed an original.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxx 00000
Dated: This 31st day of October, 1997
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STATE OF ALABAMA )
: ss.:
COUNTY OF JEFFERSON )
On October 31, 1997, before me personally came Xxxxxxx X.
Xxxxxx to me known and known to me to be the individual described in, and who
executed, the foregoing General Release, and duly acknowledged to me that he
executed same.
/s/ Xxxxx X. Xxxxxxx
--------------------
Notary Public
Bruno's, Inc.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chairman of the Board and
Chief Executive Officer
Bruno's, Inc.
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Dated: This 31st day of October, 1997.
