Exhibit 10.10
SEVERANCE PROTECTION AGREEMENT*
THIS AGREEMENT, dated as of September 29, 2000 (the "Agreement") is
entered into by and between Buffets, Inc. (the "Company") and the person named
on Appendix A attached hereto (the "Executive"), effective as of the Closing
Date.
ARTICLE I
STATEMENT OF PURPOSE
1.1 The purpose of this Agreement is to encourage and motivate Executive
to devote his full attention to the performance of his assigned duties without
the distraction of concerns regarding the involuntary termination of his
employment by the Company. The Company believes it is in the best interests of
the Company and its shareholders to provide for severance payments and other
benefits to Executive in the event his employment is terminated by the Company
for reasons other than Cause, Disability or on account of his death.
ARTICLE II
DEFINITIONS
2.1 "Annual Base Salary" shall mean the greater of (a) Executive's 2000
base salary listed on Appendix A attached hereto, or (b) Executive's highest
rate of base salary in effect at anytime within the one-year period prior to
Executive's Date of Termination.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Cause" shall mean "Cause" as defined in the Stockholders' Agreement.
2.4 "Closing Date" shall mean the "Effective Time" as defined in the
Agreement and Plan of Merger among Buffets, Inc., Big Boy Holdings, Inc., and
Big Boy Merger Corporation, dated as of June 4, 2000.
2.5 "COBRA" means Section 4980B of the Code and Section 601 et seq. of
ERISA, and the proposed or final regulations thereunder.
2.6 "Code" means the Internal Revenue Code of 1986, as amended.
2.7 "Date of Termination" means the last day on which Executive is
actively employed by an Employer.
2.8 "Disability" shall mean "Disability" as defined in Section 4.9 of the
Stockholders' Agreement.
2.9 "Employer" means the Company or any Subsidiary.
* Each of the officers on the signature pages and Exhibit As hereto have
entered into a Severance Protection Agreement in the form of this Exhibit
10.10.
2
2.10 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
2.11 "Protection Period" means the total number of weeks listed on
Appendix A that are used to calculate Executive's Severance Benefits.
2.12 "Release" means a general release executed by Executive in the form
attached hereto as Appendix B or as the same may be revised from time to time by
the Company in its sole and absolute discretion.
2.13 "Severance Benefits" means the severance payments, medical and other
benefits described in Sections 3.2., 3.3, 3.4 and 3.5.
2.14 "Stockholders' Agreement" means the Buffets Holdings, Inc.
Stockholders' Agreement, dated as of September 28, 2000.
2.15 "Subsidiary" means any corporation, business trust, limited liability
company or partnership with respect to which the Company or any other Employer
owns, directly or indirectly, stock, securities, or other ownership interests
representing at least 50% of the aggregate value of the corporation, business
trust, limited liability company or partnership.
2.16 "Weekly Compensation" means Executive's Annual Base Salary divided by
fifty two (52).
ARTICLE III
SEVERANCE PAYMENTS AND RELATED BENEFITS
3.1 Entitlement to Benefits. If the Employer terminates Executive's
employment for any reason other than Cause, Disability or death, Executive shall
be entitled to Severance Benefits provided Executive executes a Release at the
termination of his employment.
3.2 Severance Payments. If Executive is eligible for benefits under
Section 3.1, he shall receive payments equal to his Weekly Compensation
multiplied by the number of weeks in his Protection Period, payable in biweekly
installments in accordance with his Employer's regular payroll practices.
3.3 Medical Benefits. During Executive's Protection Period, Executive's
Employer shall continue to provide Executive and Executive's family with medical
and/or health benefits on the same basis as provided to active executive
management employees immediately prior to Executive's Date of Termination;
provided, however, that Executive shall continue to pay the costs (including
premiums and co-payments) he was required to pay for such medical and/or health
coverage prior to his Date of Termination (in the event such continuation of
coverage is not permitted under the Employer's medical and/or health plan, such
coverage shall be secured through COBRA continuation coverage which shall be
provided at the Employer's expense for the duration of Executive's Protection
Period).
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3.4 Life Insurance and Long-Term Disability Benefits. For the duration of
Executive's Protection Period, the Employer shall continue to provide Executive
with group term life insurance coverage and long-term disability coverage in the
same amount as in effect immediately prior to Executive's Date of Termination;
provided, however, that Executive shall continue to pay the costs he was
required to pay for such life insurance and/or long-term disability insurance
coverage, if any, prior to his Date of Termination.
3.5 Other Benefits Discontinued. Except for those fringe benefits listed
on Appendix A and as set forth in Sections 3.3 and 3.4, no fringe benefits or
plans or related payroll deductions, other than those provided pursuant to this
Article III (and applicable tax withholding), shall be continued after
Executive's Date of Termination.
3.6 Forfeiture. Notwithstanding any provision in this Agreement to the
contrary, any payment of benefits under this Agreement shall automatically cease
in the event Executive materially breaches his Release or the noncompetition,
nonsolicitation or confidentiality provisions in the Stockholders' Agreement
(and Executive continues to engage in such conduct after notice from Employer
has been received) and the Employer shall be entitled to a full refund from
Executive of any benefits paid to him under this Agreement.
3.7 Tax Withholding; Other Set-offs. The Employer may withhold from any
amounts payable under this Agreement any federal, state, and local income,
excise, employment, or other tax that is required to be withheld pursuant to any
applicable law or regulation. Payments hereunder shall not be subject to set off
except for bona fide indebtedness or advances owed by the Executive to the
Employer.
ARTICLE IV
DISPUTE RESOLUTION
4.1 Dispute Resolution. Any dispute or controversy arising under or in
connection with this Agreement that cannot be mutually resolved by the parties
hereto shall be settled exclusively by arbitration in Minneapolis, Minnesota
before a single arbitrator, who shall be selected jointly by the Company and
Executive, or, if the Company and Executive cannot agree on the selection of the
arbitrator, shall be selected by the American Arbitration Association (provided
that any arbitrator selected by the American Arbitration Association shall not,
without the consent of the parties hereto, be affiliated with the Company or
Executive or any of their respective affiliates). Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The parties hereby agree
that the arbitrator shall be empowered to enter an equitable decree mandating
specific enforcement of the terms of the Agreement.
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ARTICLE V
NO MITIGATION
5.1 No Mitigation. Executive shall have no duty to mitigate the amounts
payable by the Employer under this Agreement by seeking or accepting new
employment following his Date of Termination. Except as specifically provided in
this Agreement, all amounts payable pursuant to this Agreement shall be paid
without reduction regardless of any amounts which may be paid or payable to
Executive as a result of Executive's employment by another employer.
ARTICLE VI
EXCLUSIVITY OF RIGHTS
6.1 Waiver of Certain Other Rights. If Executive is entitled to receive
Severance Benefits pursuant to Section 3.1 hereof, he shall be deemed to have
waived his right to receive severance payments or other severance benefits under
any other agreement, plan, program or arrangement of any Employer.
ARTICLE VII
MISCELLANEOUS
7.1 No Assignability. This Agreement is personal to Executive and without
the prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution.
7.2 Payments to Beneficiary. If Executive dies before receiving the
amounts to which he is entitled under this Agreement, such amounts shall be paid
to the beneficiary designated in writing by Executive, or if none is so
designated, to Executive's estate.
7.3 Non-alienation of Benefits. The Severance Benefits payable under this
Agreement shall not be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, garnishment, execution or
levy of any kind, either voluntary or involuntary, before actually being
received by Executive, and any such attempt to dispose of any right to benefits
payable under this Agreement shall be void.
7.4 Severability. In the event that any provision of this Agreement is
determined to be invalid or unenforceable, the remaining terms and conditions of
this Agreement shall be unaffected and shall remain in full force and effect. In
addition, if any provision is determined to be invalid or unenforceable due to
its duration and/or scope, the duration and/or scope of such provision, as the
case may be, shall be reduced, such reduction to be to the smallest extent
necessary to comply with applicable law, and such provision shall be
enforceable, in its reduced form, to the fullest extent permitted by applicable
law.
7.5 Amendments. This Agreement shall not be altered, amended or modified
except by written instrument executed by the Company and Executive.
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7.6 Notices. Any notice given pursuant to this Agreement to any party
hereto shall be deemed to have been duly given when hand delivered or mailed by
registered or certified mail, return receipt requested, or by overnight courier,
addressed to Executive at the address listed on Appendix A and to the Company at
Buffets, Inc., Attn: General Counsel, 0000 Xxxxxx Xxx, Xxxxx, Xxxxxxxxx 00000,
or at such other address as either party shall from time to time designate by
written notice, in the manner provided herein, to the other party hereto.
7.7 Counterparts. This Agreement may be executed by one or more of the
parties hereto on any number of separate counterparts and all such counterparts
shall be deemed to be one and the same instrument. Each party hereto confirms
that any facsimile copy of such party's executed counterpart of the Agreement
(or its signature page thereof) shall be deemed to be an executed original
thereof.
7.8 Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force and effect.
7.9 Pronouns. Masculine pronouns and other words of masculine gender shall
refer to both men and women.
7.10 No Waiver. A party's failure to insist upon strict compliance with
any provision of this Agreement which inures to the benefit of a party shall not
be deemed to be a waiver of such provision or any other provision of this
Agreement by such party.
7.11 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Minnesota, without giving
effect to conflict-of-laws principles.
7.12 Entire Agreement. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
existing agreements among them concerning such subject matter.
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IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first set forth above.
BUFFETS, INC.
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.,
Executive Vice President &
Chief Financial Officer
/s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
7
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first set forth above.
BUFFETS, INC.
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.,
Executive Vice President &
Chief Financial Officer
/s/ Xxxxx Xxxxxxxx
--------------------------------
Xxxxx Xxxxxxxx
8
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first set forth above.
BUFFETS, INC.
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.,
Executive Vice President &
Chief Financial Officer
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.
9
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first set forth above.
BUFFETS, INC.
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.,
Executive Vice President &
Chief Financial Officer
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
10
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first set forth above.
BUFFETS, INC.
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.,
Executive Vice President &
Chief Financial Officer
/s/ Xxxxxxx Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx
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IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first set forth above.
BUFFETS, INC.
/s/ R. Xxxxxxx Xxxxxxx, Jr.
--------------------------------
R. Xxxxxxx Xxxxxxx, Jr.,
Executive Vice President &
Chief Financial Officer
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
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APPENDIX A
NAME OF EXECUTIVE: Xxxxx Xxxxx
ADDRESS: 0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
2000 BASE SALARY: $350,000.00
PROTECTION PERIOD: 52 Weeks
OTHER BENEFITS: None
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APPENDIX A
NAME OF EXECUTIVE: Xxxxx Xxxxxxxx
ADDRESS: 00000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
2000 BASE SALARY: $240,000.00
PROTECTION PERIOD: 52 Weeks
OTHER BENEFITS: None
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APPENDIX A
NAME OF EXECUTIVE: R. Xxxxxxx Xxxxxxx, Jr.
ADDRESS: 0 Xxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
2000 BASE SALARY: $185,000.00
PROTECTION PERIOD: 52 Weeks
OTHER BENEFITS: None
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APPENDIX A
NAME OF EXECUTIVE: Xxxxx X. Xxxxxxx
ADDRESS: 0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
2000 BASE SALARY: $200,000.00
PROTECTION PERIOD: 52 Weeks
OTHER BENEFITS: None
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APPENDIX A
NAME OF EXECUTIVE: Xxxxxxx Xxxxxxx Xxxxxxx
ADDRESS: 00000 Xxxxxxxxxx Xxxx #000
Xxxxxxxxxx, XX 00000
2000 BASE SALARY: $160,000.00
PROTECTION PERIOD: 52 Weeks
OTHER BENEFITS: None
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APPENDIX A
NAME OF EXECUTIVE: Xxxxxx X. Xxxxxxxx
ADDRESS: 00000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
2000 BASE SALARY: $175,000.00
PROTECTION PERIOD: 52 Weeks
OTHER BENEFITS: None
