Exhibit 10.12
MEMORANDUM OF AGREEMENT
BETWEEN XXXXXX X. XXXXX AND FRIENDLY ICE CREAM CORPORATION
This acknowledges and documents our mutual agreement concerning your
separation from Friendly Ice Cream Corporation ("Friendly's") effective January
13, 2003 ("Separation Date"). This letter will confirm various matters
concerning your separation from employment so that no misunderstanding exists
between you and Friendly's.
I. SALARY CONTINUATION
Friendly's will continue to pay you semimonthly, commencing after the end
of the seven-day revocation period referred to in Section VII, INFRA, at your
current base rate of pay (excluding executive match and automobile allowance),
for nine (9) months. The salary you receive will be subject to appropriate
statutory deductions and such other deductions normally made for employees of
Friendly's; however it will not be considered pensionable earnings. In addition,
any financial obligation you have to Friendly's will be deducted.
In the event that the Board approves a bonus for Friendly's management
group for 2002, which is payable in 2003, you will be eligible for payment of
the bonus pursuant to the terms of the Annual Incentive Plan (AIP). Friendly's
will pay any such bonus within thirty (30) days of the Board's approval.
From time to time after your separation, but during your salary
continuation period, you may be contacted with questions relating to matters you
have been involved with while employed by Friendly's. You agree to provide your
complete cooperation and make all pertinent information regarding these matters
available upon request, as well as be personally available, at mutually
convenient times, on an as-needed basis.
II. VACATION
You will be paid for any earned and unused vacation time (10 day maximum),
as of your Separation Date, in accordance with our Vacation Policy dated
December 21, 2001.
III. BENEFIT/RETIREMENT PLANS
You will be eligible to participate in the medical/dental, short-term
disability, accidental death and dismemberment, long-term disability, pension
plan, Stock Option Plan and such other benefits plans in which you may currently
be enrolled only through your Separation Date, and under the terms and
conditions of these plans. Your automobile allowance and your group
medical/dental insurance ends on your last day of active work. To continue
medical/dental coverage beyond your Separation Date, you must complete a
continuation of coverage (COBRA) application, which will be provided to you.
As of January 13, 2003, 23,333 and 4,000 of the stock options granted to
you under Friendly's Stock Option Plan have vested and are exercisable at the
respective per share prices of $2.875 and $2.40. You may exercise these options
on or before April 13, 2003 or they will expire. To exercise the options you
should contact RBC Xxxx Xxxxxxx'x Xxxx Xxxxxxxx at 0-000-000-0000. Once
exercised, there will be no restriction on your ability to transfer your shares.
Additional information about the effect of your separation on your benefits
is contained in the Separation Information document that will be provided to
you.
IV. OUTPLACEMENT
To assist you in securing a new position, Friendly's has engaged the
services of the nationally recognized outplacement firm of Xxx Xxxxx Xxxxxxxx,
Inc. for a period of six (6) months. They will provide the following services at
any of their offices:
1. Assistance with your skills analysis and preparation of your resume;
2. Training which covers critical job search techniques and interviewing
skills; and
3. Individualized counseling for a six-month period.
You may utilize the services of another outplacement provider if you wish;
however, the cost of the services may not exceed $8,000. Payment will be made
directly to the organization by Friendly's, or reimbursement will be made to you
upon presentation of an invoice indicating that you have already paid it.
V. LIFE INSURANCE
The life insurance coverage that has been provided to you through Pacific
Mutual Life Insurance Company is unaffected by your leaving employment because
it is your own personal policy. Payments by Friendly's on your behalf will cease
as of your Separation Date. Questions about coverage thereafter or about other
matters related to this policy should be referred to Xx. Xxxxx Xxxxxx of the
AYCO Corporation at (000) 000-0000. Friendly's will pay for the cost of up to
two (2) meetings with an AYCO representative for the sole purpose of concluding
your financial planning services with AYCO including the preparation of your
2002 individual tax return, after which Friendly's will no longer pay for any
further AYCO advisory services on your behalf.
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VI. COVENANTS
In consideration of the terms set forth in this letter, you agree to the
following:
1. You will forever refrain from disclosing or confirming, either
directly or indirectly, any information concerning insurance, loss
claims, loss payments, safety and health conditions, financial
condition, strategic planning or other confidential or non-public
information relating to Friendly's or its subsidiaries, divisions,
parents and affiliates, and any of their agents, employees, directors
and officers which you learned or became aware of since the inception
of your employment with Friendly's except for information which is
generally known by the public, without Friendly's prior written
consent.
2. You will turn over to your supervisor all originals and copies of any
documents, manuals, plans, equipment, business papers, computer
diskettes or other materials relating to Friendly's and its
subsidiaries, divisions, parents and affiliates, their agents,
employees, directors and officers which are in your control or
possession within seven days of the execution of this Agreement.
3. You, on behalf of yourself, your spouse, heirs, agents, attorneys,
representatives and assigns, hereby release and discharge forever all
claims and causes of action of every name and nature that have arisen
or might have arisen at any time up to and including the date on which
you sign this Agreement (whether known or unknown, accrued,
contingent, or liquidated) that you now have or may have against
Friendly's, any of its subsidiaries, divisions, parents and
affiliates, or any of the aforementioned entities' agents, employees,
directors, and officers, including but not limited to, any claims
relating to your employment with Friendly's and the termination
thereof; any claims based on statute, regulation, ordinance, contract
or tort; any claims arising under the Age Discrimination in Employment
Act of 1967, as amended (the "ADEA"), or any other federal, state, or
local law relating to employment discrimination, harassment, or
retaliation; any claims relating to wages, compensation, or benefits;
and any related claims for attorney's fees.
4. You agree not to file a lawsuit in any court of the United States or
any State thereof concerning any matter released in this Agreement.
Nothing in this Agreement shall be interpreted to prohibit you from
filing an age discrimination claim with any anti-discrimination
agency, or from participating in an age discrimination investigation
or proceeding conducted by any such agency. However, by signing this
Agreement, you acknowledge that you are waiving your right to money
damages and any other relief should any agency pursue claims on your
behalf arising out of or relating to your employment with and/or
separation from Friendly's.
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5. You agree to forever refrain from taking any action or making any
statement which brings discredit upon or disparages Friendly's, its
services or products, or any of its directors, officers, employees, or
agents.
6. Friendly's will provide inquiring outplacement agencies, recruiters,
or prospective employers with only your start date, end date, and
positions held during your employment with Friendly's. A reference
letter from Xxxxxxx Xxxxxx which contains the same information is
attached hereto.
7. Friendly's shall not contest any claims made by you for unemployment
benefits administered by any governmental agency.
8. If you breach any of the terms of this Agreement, Friendly's may be
entitled to recover from you all costs, fees, and expenses (including
attorney's fees) as may be awarded by a court of competent
jurisdiction under applicable law and will be entitled to set off what
it has paid you under this Agreement.
VII. ENTIRE AGREEMENT
This is the entire agreement between us and any prior agreements or
understandings, whether oral or written, are entirely superseded by this
Agreement. We each have voluntarily accepted the terms as sufficient without
reservation. This Agreement may only be modified by a written agreement signed
by you and an officer of Friendly's.
Should any provision of this Agreement be declared or determined by any
court to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal part, term or
provision shall be deemed not to be a part of this Agreement.
Pursuant to its obligations under the ADEA, Friendly's advises you to
consult with an attorney prior to executing this agreement. You have 21 days
from the date of receipt of this document in which to consider this agreement.
In addition, you may revoke this agreement for seven days following its
execution, but only by delivering a written revocation notice to Xxxxxxx Xxxxxx.
This agreement shall not become effective or enforceable until the seven-day
revocation period has expired.
By signing this Agreement, you acknowledge that you have read and fully
understand all of its provisions and that you are signing it voluntarily. You
also acknowledge that you are not relying on any representations by any
representative of Friendly's concerning the meaning of any aspect of this
Agreement.
In the event, after the execution of this Agreement but before all payments
to you have been made, Friendly's determines that you have engaged in any
fraudulent or illegal activity related to Friendly's not actually known to
Friendly's prior to the execution of this Agreement,
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Friendly's shall have the right to terminate its remaining obligations under
this Agreement, declaring it null and void.
Each party hereto agrees that they are fully authorized and have all of the
requisite right, power, and authority to enter into this Agreement, which is
fully binding upon and enforceable against the respective parties hereto in
accordance with its terms.
This Agreement is made and entered into in the Commonwealth of
Massachusetts and shall in all respects be interpreted, enforced, and governed
by the laws of the Commonwealth of Massachusetts.
If the above is in agreement with your understanding, please sign and keep
one copy of this document for your records and return one copy to me.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President, Human Resources
ACCEPTED AND AGREED TO AS OF THIS 10th DAY OF FEBRUARY, 2003.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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