TERMINATION AND RELEASE AGREEMENT
Termination and Release Agreement (the "Agreement"), dated as of
September 18 1997, by and between Xxxxxx'x Restaurant Group, Inc., a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxx, Xx. ("Hyde").
WHEREAS, Hyde and the Company are parties to an Amended and Restated
Employment Agreement, dated as of February 1, 1997 (the "Employment
Agreement"); and
WHEREAS, Hyde has resigned from the Company and the Company has accepted
his resignation and now Hyde and the Company wish to settle all obligations
under the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties agree as follows:
1. Termination Date.
Effective as of the date hereof, the Employment Agreement is terminated.
Hyde's resignation as Chief Operating Officer, President and Director of the
Company is effective, and he relinquishes all titles, offices and authority
he may have with the Company or any of its affiliates or subsidiaries.
2. Release by the Company.
The Company forever releases and discharges Hyde, his heirs, executors,
administrators and assigns ("Releasees") from all claims, charges, actions,
causes of action, suits, debts, covenants, contracts, damages, judgments and
demands of any nature whatsoever, whether known or unknown, in law or equity,
which the Company ever had, now has, or hereafter can, shall or may have by
reason of the early termination of the Employment Agreement and his accepting
employment with Xxxx'x Xxxxx (the "Release"); provided, that, (i) the Company
is not releasing any rights under this Agreement and (ii) in the event Hyde's
employment with Xxxx'x Xxxxx terminates (whether voluntarily or
involuntarily) prior to January 31, 2000, Hyde will be prohibited until such
date from working for, engaging in or being interested in any business
(whether or not for compensation or profit) which is then the owner,
operator, franchiser or franchisee of multiple steakhouse (or similar type)
restaurants.
The Company forever releases and discharges Xxxx'x Xxxxx Steak House,
Inc. ("Xxxx'x Xxxxx"), its affiliates, subsidiaries, divisions, franchisees,
shareholders, current and former directors, officers, employees, agents,
contractors, successors, heirs and assigns from any and all claims, charges,
actions, causes of action, suits, debts, covenants, contracts, damages,
judgments and demands of any nature whatsoever, whether known or unknown, in
law or equity, which the Company ever had, now has, or hereafter can, as a
result of or in connection with the employment of Hyde, have; provided, that,
the Company is not releasing any rights with respect to
conduct of Hyde as an employee of Xxxx'x Xxxxx or any action by Xxxx'x Xxxxx
in violation of the terms of this Agreement.
3. Release by Hyde.
(a) Hyde forever releases and discharges the Company and its affiliates,
subsidiaries, divisions, shareholders, current and former directors,
officers, employees, agents, contractors, successors, heirs and assigns, and
any and all employee pension or welfare benefit plans of the Company
(including current and former trustees and administrators of these plans)
(collectively, "Company Releasees") from all claims, charges, actions, causes
of action, suits, debts, covenants, contracts, damages, judgments and demands
of any nature whatsoever, whether known or unknown in law or equity, which
Hyde or his heirs, executors, administrators, successors and assigns ever
had, now have or hereafter can, shall or may have by reason of any act,
omission, conduct or event from the beginning of Hyde's employment with the
Company to the date of this Agreement against the Company Releasees
including, without limitation, any claims Hyde may have arising from or
relating to Hyde's employment with the Company, under any and all federal,
state or local constitutions, statutes, rules, regulations or common law and
any claims for compensation or benefits.
(b) Hyde also acknowledges that his participation in all employee benefit
programs of the Company and any employee benefits pursuant to his Employment
Agreement, including, without limitation, any insurance coverage and any
automobile leases, terminate on the date hereof.
4. Options; Note.
(a) Hyde hereby (i) surrenders and cancels the options to purchase 20,000
shares of the Company's common stock which are held by him pursuant to his
incentive stock option agreement and which are currently vested and
exercisable, and (ii) confirms that the remaining options to purchase 120,000
shares of the Company's common stock which are held by him and are not
currently vested or exercisable lapse and terminate concurrently herewith.
(b) Concurrently herewith, Hyde is executing and delivering to the
Company a note in the form of Exhibit A attached hereto to evidence his
obligation to pay to the Company the sum $100,000.
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5. Hiring; Arbitration.
(a) For a period of three years from the date hereof (the "Restriction
Period"), Hyde will not, and will cause Xxxx'x Xxxxx not to, directly or
indirectly solicit the employment of, employ, hire, participate in the hiring
of or refer for employment any person who currently is or shall within the
Restriction Period become a salaried or management employee of the Company,
or any person holding a position as chef with the Company, regardless of
whether such employee's employment with the Company has terminated and
whether such termination was voluntary or involuntary.
(b) Any dispute, controversy or claim arising out of or relating to this
Section 5, or the breach, termination or validity hereof, shall be finally
and exclusively settled by arbitration before a single arbitrator who shall
be an attorney. The arbitration shall be administered by the American
Arbitration Association in New York County, New York, pursuant to the
National Rules for the Resolution of Employment Disputes then in force. The
arbitrator shall determine the rights and obligations of the parties
according to the substantive laws of the State of New York without regard to
choice of law principles. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. For purposes of such
arbitration and/or the entering of an award or any order in aid of
arbitration, the parties consent to personal jurisdiction and venue in New
York County, New York. All costs associated with such arbitration shall be
borne by the non-prevailing party, and if the Company is the prevailing
party, liquidated damages shall be awarded to the Company in the amount of
three times the full W-2 compensation of any such employee during the
employee's last year of employment with the Company on an annualized basis.
The parties agree that the actual damages suffered by the Company may be
difficult to ascertain with precision and that the parties have agreed to
this liquidated damage provision in view of such uncertainty and not as a
penalty.
6. Xxxxx Xxxxxx Agency.
During the Restriction Period, Hyde will not, and will cause Xxxx'x Xxxxx
not to, use or employ the Xxxxx Xxxxxx Agency.
7. Non-Disclosure.
Hyde agrees that he will not, at any time, disclose to any person or
otherwise utilize in any way for his own benefit or for the benefit of any
other person (including, without limitation, Xxxx'x Xxxxx) any Confidential
Information of the Company. For the purpose of this Agreement, Confidential
Information means information treated by the Company as confidential or
proprietary with respect to its business or operations plans, strategies,
know-how, prospects, objectives, structure, technology, distribution, sales,
services, support and marketing plans, practices, and operations, prices,
costs and details of services, the financial condition and results of its
operations, its customers and customer lists, information received from third
parties under confidential conditions, its management organization and
related information (including, without limitation, data and other
information concerning the compensation and benefits paid to
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officers, directors, employees and the management of the Company), its
personnel and compensation policies, operation policies and manuals, its
financial records and related information, means of gaining access to the
Company's' computer data systems and related information, members of or
information concerning the Company's VIP Program, information contained in
the Company's training manuals, recipe books or operating manuals, its Gold
Plan, and other proprietary information concerning the Company and its
respective affiliates, except for specific items which have become publicly
available other than as a result of a breach of this Agreement.
8. Confidentiality of Agreement.
Each party to this Agreement agrees that it will, and Hyde will cause any
company (including without limitation, Xxxx'x Xxxxx) by which he is employed
to, treat the terms of this Agreement as confidential, and shall not directly
or indirectly disclose them in any manner except: (a) as mutually agreed upon
in writing by the parties to this Agreement; (b) in legal documents filed
with the court (or arbitrator, as the case may be) in any action to enforce
the terms of this Agreement; (c) pursuant to a valid order of a court (or
arbitrator, as the case may be) or a lawfully issued and enforceable
subpoena; (d) as otherwise required by law or regulation; or (e) to its
attorney, financial advisors, accountant, and/or spouse, as applicable,
provided that prior to any such disclosure, that individual must agree to
treat as confidential all information disclosed. Hyde will not and will cause
Xxxx'x Xxxxx not to make any public statement or announcement which is
disparaging with respect to the Company, its business or any of its
directors, officers or employees.
9. Company Property; Transition.
Within one business day of the date hereof, Hyde shall return to the
Company all originals and copies of all documents and materials received or
generated by him in the course of his employment with the Company ("Company
Property"), and shall not make any notes reflecting information contained in
such materials. Concurrently herewith, Hyde shall also deliver, to the extent
they are in his possession: (a) all company electronic equipment, computer
hardware, and computer software; (b) all Company credit cards or restaurant
accounts; (c) all copies of office keys and security access cards; and (d)
the car leased by the Company for his benefit. Hyde will reasonably cooperate
with the Company in the making of any required filings with the Securities
and Exchange Commission or other regulatory body by reason of his departure,
and will otherwise reasonably cooperate in connection with his departure.
10. Indemnification.
Hyde shall indemnify, defend and hold harmless the Company and the
Company Releasees from and against any and all liabilities, losses, claims,
damages, obligations, deficiencies, judgments, amounts paid in settlement of
any suits, actions, claims, proceedings or investigations, costs and expenses
(including, but not limited to, interest, penalties, costs of investigation
and attorney's and accountant's fees and disbursements) (collectively,
"Losses") suffered, sustained, incurred or required to be paid by the Company
or the Company Releasees, based upon, arising out of or otherwise with
respect to actions of Hyde during his employment
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with the Company that constituted (a) criminal conduct; (b) fraud; (c)
self-dealing; (d) breach of fiduciary duty; or (e) wrongful acts committed
outside the scope of his employment. Hyde will cooperate with the Company in
the defense of third party claims.
The Company shall indemnify, defend and hold harmless Hyde and Hyde's
releasees from and against any and all liabilities, losses, claims, damages,
obligations, deficiencies, judgments, amounts paid in settlement of any
suits, actions, claims, proceedings or investigations, costs and expenses
(including, but not limited to, interest, penalties, costs of investigation
and attorney's and accountant's fees and disbursements) (collectively,
"Losses") suffered, sustained, incurred or required to be paid by Hyde or
Hyde's releasees, based upon, arising out of or otherwise with respect to
actions of Hyde during his employment with the Company other than those set
forth in the above paragraph.
The foregoing indemnities shall not be exclusive, but shall be in
addition to any other rights or remedies to which the Company and the Company
Releasees, Hyde and Hyde's releasees, may be entitled at law or in equity.
11. Consent to Jurisdiction.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York governing contracts made and to be performed
entirely in New York. Each party to this Agreement consents to the exclusive
jurisdiction of the state courts of and federal courts located in the State
of New York for the enforcement of the obligations evidenced by this
Agreement and any dispute arising out of this Agreement (except as otherwise
provided in Section 5), and expressly waives any defense based upon venue or
forum non conveniens. Each party hereto shall have available to it remedies
both at law and in equity (including injunctive relief).
12. Attorney's Fees and Expenses.
In the event that any action, suit or other proceeding at law or in
equity is brought to enforce the provisions of this Agreement the prevailing
party shall be entitled to recover its reasonable attorneys fees and expenses
from the non-prevailing party.
13. Non-waiver.
In the event any party hereto violates or attempts to violate any of the
provisions of this Agreement, the failure of the other party to enforce any
of its rights or remedies with respect thereto shall not constitute a waiver
by that party of any right or remedy with respect to the same violation or
any future violations of any of the provisions of this Agreement.
14. Notices.
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All notices and other communications under this Agreement shall be in
writing and shall be given to the other party by hand delivery, by registered
or certified mail, return receipt requested, postage prepaid, or by telecopy
(with receipt confirmed) addressed as follows:
If to Hyde:
Xxxxxxx X. Xxxx, Xx.
0 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Telecopy No.:
With copies to:
Xxxxxxxx & Xxxxx
1600 Bank One Center- North Tower
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: 000-000-0000
If to the Company:
Xxxxxx'x Restaurant Group, Inc.
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000
New Hyde Park, New York 11042
Attention: Xxxxx X. Xxxxxxxxx
Telecopy No.: 000-000-0000
With copies to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telecopy No.: 000-000-0000
15. Enforceability.
If any provision of this Agreement is determined by a court of competent
jurisdiction not to be enforceable in the manner set forth in this Agreement,
each party agrees that it is the intention of the parties that such provision
should be enforceable to the maximum extent permitted under applicable law
and shall be reformed to make it enforceable in accordance with the intent of
the parties.
16 Entire Agreement.
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This is the entire agreement between the parties hereto with respect to
the matters covered herein. This Agreement supersedes all existing
agreements, whether written or oral between the parties hereto, concerning
Hyde's employment with the Company including without limitation the
Employment Agreement.
17. Binding Effect. This Agreement shall be binding on the parties hereto
and their respective successors and assigns.
18. Adequate Consideration. The parties each represent and agree that
this Agreement has been entered into for good and valuable and adequate
consideration, receipt of which is hereby acknowledged.
19. No Oral Amendment. No provision of this Agreement may be amended,
modified or waived except as agreed to in writing by the parties hereto.
20. No Assignment. Neither this Agreement nor any party's rights
hereunder may be hypothecated or assigned by such party, except by the
Company to its successors in interest, without the prior consent of the other
party.
/s/ Xxxxxxx X. Xxxx, Xx.
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Xxxxxxx X. Xxxx, Xx.
Xxxxxx'x Restaurant Group, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board
7
8% Secured Note
New York, New York
September 18, 1997
$100,000
FOR VALUE RECEIVED, Xxxxxxx X. Xxxx, Xx. ("Hyde") hereby promises to pay
to the order of Xxxxxx'x Restaurant Group, Inc. or assigns ("Payee") the
principal sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) in eleven quarterly
installments of $8,333 each, commencing on December 18, 1997, and a final
installment of $8,337 on September 18, 2000, with interest on the unpaid
balance of such principal amount from the date hereof at the rate of 8% per
annum until the principal hereof shall become due and payable (whether at
maturity, upon prepayment, acceleration or otherwise, said interest to be
payable together with any payment of principal on the principal amount so
paid), and with interest on any overdue principal at the rate of 15% per
annum until paid.
Payments of principal hereof and interest hereon shall be made in lawful
money of the United States of America by wire transfer to the Company at such
location as the Company may specify in advance in writing to Hyde, and if no
such location has been so specified, by check to the Company at its office at
3333 New Hyde Park Road, Suite 210, New Hyde Park, New York 11042, attention
Xxxxx Xxxxxxxxx.
This Note is subject to voluntary prepayment in whole or in part at any
time and is subject to mandatory prepayment to the extent of 25% of the gross
proceeds of any sale by Hyde or his transferees of any stock, in the Payee.
Hyde holds options to purchase 10,000 shares under a non-qualified stock
option agreement and upon exercise of such options, the Company shall hold
the shares purchased as collateral security for payment on this Note.
Hyde hereby waives presentment for payment, demand, protest and notice of
dishonor of this Note.
In the event Hyde fails to make any principal or other payments as
required by the terms of this Note (including any prepayments or payments of
proceeds on the sale of stock required hereunder), or Hyde files or has filed
against him a petition under any provision of the Bankruptcy Code, as amended
or recodified from time to time, all amounts of principal, interest and other
sums and charges hereunder may, at the option of Payee, be
declared (by written notice to Hyde) to be, whereupon the same shall
henceforth become, immediately due and payable.
This Note shall be governed by, and construed and interpreted in
accordance with the internal laws of the State of New York applicable to
contracts made and to be performed therein without consideration as to choice
of law.
/s/ Xxxxxxx X. Xxxx, Xx.
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Xxxxxxx X. Xxxx, Xx.
COPY
