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TERMINATION AGREEMENT
This Termination Agreement (this "Termination Agreement") dated as of
January 8, 1998, among Shoney's, Inc., a Tennessee corporation (the "Company"),
and Xxxxxxx X. Xxxxxxxxxx, an individual resident of the State of Georgia, and
Xxxxx X. Xxxxxxxxxx, an individual resident of the State of Florida.
W I T N E S S E T H:
WHEREAS, the parties to this Termination Agreement are parties to a
Settlement Agreement dated as of August 10, 1997 and amended as of November 11,
1997 (as so amended, the "Settlement Agreement"); and
WHEREAS, each of the parties to this Termination Agreement has
determined that it is in such party's best interests to terminate the Settlement
Agreement, except to the extent provided herein, effective upon the execution of
this Agreement by all of the parties hereto.
NOW THEREFORE, in consideration of the premises and mutual promises
contained herein, the parties agree as follows:
A. Termination of Settlement Agreement. Except to the extent set
forth in Section B of this Termination Agreement, effective upon the execution
of this Agreement by all of the parties hereto, the Settlement Agreement is
hereby terminated by the mutual agreement of the Company, Xxxxxxx X. Xxxxxxxxxx
and Xxxxx X. Xxxxxxxxxx.
B. Surviving Provisions. Notwithstanding the provisions of
Section A of this Termination Agreement, Sections 3 and 8 of the Settlement
Agreement (the "Surviving Provisions") shall not be terminated and shall
continue in full force and effect.
C. Miscellaneous.
(a) Each of the parties agrees that it will not avoid or seek
to avoid the observance or performance of any of the terms hereof or of the
Surviving Provisions (whether by alleging in any court that one or more of the
provisions of this Termination Agreement or the Surviving Provisions is invalid
or unenforceable, or otherwise), but will act at all times in good faith to
assist in the carrying out of all such terms, and each of the parties hereby
irrevocably waives any claim that any provision hereunder or in the Surviving
Provisions may be invalid or unenforceable and agrees not to contend to the
contrary. In addition, each of the parties agrees that it will use all
reasonable efforts to defend against any claim by a third party that any of the
provisions of this Termination Agreement or the Surviving Provisions is invalid
or unenforceable.
(b) Each of the parties acknowledges and agrees that
irreparable injury to the other parties hereto would occur if any of the
provisions of this Termination Agreement or the Surviving Provisions were not
performed in accordance with their specific terms or were otherwise breached and
that such injury would not be compensable in money damages. It is accordingly
agreed that each party hereto (the "Moving Party") shall be entitled to specific
enforcement of the terms
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hereof and the Surviving Provisions and injunctive or other equitable relief as
a remedy for such nonperformance or breach, and each party further waives any
requirement for the securing or posting of any bond in connection with such
remedy. The other parties hereto will not take action, directly or indirectly,
in opposition to the Moving Party seeking such relief on the grounds that any
other remedy or relief is available at law or in equity. The remedies for which
this Section provides shall not be deemed to be the exclusive remedies for
breach of this Termination Agreement or the Surviving Provisions, but shall be
in addition to all other remedies available at law or equity.
(c) If any term, provision, covenant or restriction of this
Termination Agreement or the Surviving Provisions is held by a court of
competent jurisdiction to be illegal, invalid, void or unenforceable, the
parties agree that such provision, covenant or restriction will be enforced to
the maximum extent permissible so as to effect the intent of the parties, and
the legality, validity and enforceability of the remaining provisions of this
Termination Agreement or the Surviving Provisions shall not in any way be
affected or impaired thereby. The parties will negotiate in good faith to amend
this Termination Agreement and the Surviving Provisions to replace the
unenforceable language with enforceable language which as closely as possible
reflects such intent.
(d) Any waiver by any party hereto of a breach of any
provision of this Termination Agreement or the Surviving Provisions shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Termination Agreement or the
Surviving Provisions. The failure of a party hereto to insist upon strict
adherence to any term of this Termination Agreement or the Surviving Provisions
on one or more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Termination Agreement or the Surviving Provisions.
(e) This Termination Agreement and the Surviving Provisions
contain the entire understanding of the parties hereto with respect to their
subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings other than those
expressly set forth herein and in the Surviving Provisions. This Termination
Agreement and the Surviving Provisions may be amended only by a written
instrument duly executed by the parties hereto.
(f) This Termination Agreement and the Surviving Provisions
shall be governed by and construed and enforced in accordance with the laws of
Tennessee, without reference to the conflict of laws principles thereof.
(g) This Termination Agreement may be executed in
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each of
the undersigned parties has executed or caused this Termination Agreement to be
executed on the date first above written.
SHONEY'S, INC.
By: /s/ X.X. XxXxxxxx, Xx.
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Name: X.X. XxXxxxxx, Xx.
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Title: Chief Administrative Officer,
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Secretary, and General Counsel
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/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
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