EXHIBIT 10.24
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "Agreement") dated the 7th day of
January, 2005, is between Xxxxxxx X. Xxxxxxxx, ("Xxxxxxxx") and Back Yard
Burgers, Inc. (the "Company").
WHEREAS, Xxxxxxxx is a director and officer of the Company, and the
Company and Xxxxxxxx wish to provide for the resignation of Xxxxxxxx as a
director and officer of the Company and its subsidiaries and the termination of
Xxxxxxxx'x employment with the Company and its subsidiaries pursuant to the
terms and provisions of this Agreement and the agreements referred to herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto do
hereby agree as follows:
1. Resignations. Effectively immediately, Xxxxxxxx hereby resigns from
the Board of Directors of the Company and its subsidiaries and as an officer and
employee of the Company and its subsidiaries.
2. Termination of Agreements. Xxxxxxxx and the Company hereby terminate
the Employment Agreement and the Severance Agreement, and, except for this
Agreement and the Continuing Agreements (as defined in Section 4 hereof) and as
expressly contemplated herein, each of the Company and Xxxxxxxx hereby terminate
all other agreements and arrangements of any kind arising from or related to the
Employment Agreement or the Severance Agreement or Xxxxxxxx'x service as a
director or officer of the Company or employment by any of the Company and its
subsidiaries (the Employment Agreement, Severance Agreement and such other
agreements and arrangements referred to herein as the "Terminated Agreements").
Except as expressly provided herein, the termination of the Terminated
Agreements shall be without liability to either Xxxxxxxx or any of the Company
and its subsidiaries and shall release Xxxxxxxx and the Company and its
subsidiaries from any and all further liability and obligations thereunder,
including without limitation any compensation, payments, benefits,
indemnification or other rights or obligations arising under the terms of the
Terminated Agreements.
3. Payments. The Company agrees to pay to Xxxxxxxx the sum of
$7,007.29, such amount to be paid within 7 days after the date hereof. The
Company also agrees to pay to Xxxxxxxx his fourth quarter bonus based on the
same evaluation criteria as previous quarterly bonuses, which will not exceed
$3000, such amount to be paid within 30 days after the date hereof.
4. Other Consideration. Contemporaneously with the execution and
delivery of this Agreement, the Company and Xxxxxxxx shall enter into an
Amendment to Stock Option Plan and Agreement in the form attached hereto as
Exhibit A, a Consulting Agreement in the form attached hereto as Exhibit B, a
Franchise Agreement in the form attached hereto as Exhibit C, and an Area
Development Agreement in the form attached hereto as Exhibit D (collectively
referred to as the "Continuing Agreements"). Xxxxxxxx acknowledges and agrees
that Xxxxxxxx is not entitled to the enter into the Continuing Agreements on
such terms contained therein without Xxxxxxxx'x execution and delivery of this
Agreement, and that the Company has agreed to enter into the Continuing
Agreements in consideration of Xxxxxxxx'x execution of this Agreement and the
releases, representations, covenants and obligations of Xxxxxxxx contained
herein.
5. Non-Competition and Non-Solicitation. In consideration of the
benefits received by Xxxxxxxx hereunder, and without limiting or being limited
by the provisions of Section 9 of the Franchise Agreement, for a period of two
(2) years from the date hereof Xxxxxxxx will not, directly or indirectly (except
as contemplated by this Agreement and the Continuing Agreements):
(a) do or perform, directly or indirectly, any act injurious
or prejudicial to the goodwill associated with the names and marks and
other proprietary rights of the Company and its subsidiaries, or;
(b) own, maintain, operate, engage in, or have any interest in
any business which sells goods or services of a like competitive
nature, more specifically, hamburger or chicken sandwich restaurants,
and which is located within ten (10) miles of the protected territory
of any Company-owned or franchised restaurant of the Company. This
subsection shall not apply to ownership by Xxxxxxxx as a passive
investor of less than five percent (5%) interest in a publicly-held
corporation listed on a national stock exchange or traded on the
over-the-counter market.
6. Confidential Information. Xxxxxxxx acknowledges that in the course
of Xxxxxxxx'x employment with the Company and its subsidiaries Xxxxxxxx had
access to confidential or proprietary information and trade secrets relating to
the business affairs of the Company and its subsidiaries. Xxxxxxxx agrees and
understands that Xxxxxxxx is obligated to not, at any time, disclose or
otherwise make available to any person, company or other party, confidential or
proprietary information or trade secrets of any of the Company and its
subsidiaries of whatsoever nature, including, but not limited to processes,
rates, terms, and other matters and information to which persons other than
those employed by the Company would know or have access to.
7. Return of Company Property. Xxxxxxxx acknowledges, understands and
agrees that prior to the date hereof, Xxxxxxxx has returned all property of the
Company in Xxxxxxxx'x possession.
8. Confidentiality and Non-Disparagement. Xxxxxxxx agrees that he will
not reveal to anyone, except Xxxxxxxx'x spouse, attorney, accountant or tax
advisor, any of the terms of this Agreement or the Continuing Agreements or the
facts and/or circumstances leading up to this Agreement and the Continuing
Agreements or any of the amounts, numbers or terms or conditions hereof or
thereof, except as may be required by law. Further, Xxxxxxxx agrees not to make
any disparaging or negative statements about the Company, its products,
services, management, officers or directors. Xxxxxxxx further agrees to
cooperate with the Company and its counsel to the extent requested in the
future, including making Xxxxxxxx available for any interviews, testimony,
and/or signing affidavits or certifications, provided that such cooperation
shall be such times or places as are reasonably convenient to Xxxxxxxx.
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9. Release.
(a) In consideration of the benefits received by Xxxxxxxx
hereunder, and as an inducement to the Company to enter into this
Agreement and the Continuing Agreements, Xxxxxxxx irrevocably and
unconditionally releases and forever discharges the Company and its
subsidiaries and their respective officers, directors, employees,
agents, insurers, representatives, counsel, shareholders, and other
affiliates and each of their respective successors and assigns
(collectively, the "Releasees") from any and all claims, actions,
causes of action, suits, debts, dues, rights, offsets, demands, sums of
money, accounts, damages, judgments, reckonings, bonds, bonuses,
charges, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, extents, executions, and
complaints whatsoever, in law, equity or otherwise, under federal law,
state law or otherwise, whether known or unknown (collectively, the
"Claims"), which Xxxxxxxx ever had, now has, or hereafter may have,
for, upon, or by any matter, cause or thing whatsoever, from the
beginning of the world to the day of this Agreement (including without
limitation Claims based on, relating or with respect to, or arising out
of the Terminated Agreements and Xxxxxxxx'x service as an officer,
director or employee of the Company or any of its subsidiaries).
Without limiting the foregoing, Xxxxxxxx understands and acknowledges
that Xxxxxxxx is giving up Claims of any kind that Xxxxxxxx has or may
have for claims protected under, arising under or based on Tennessee
law; TITLE VII OF THE CIVIL RIGHTS ACT, 42 U.S.C. Sections 2000e et
seq.; THE AGE DISCRIMINATION IN EMPLOYMENT ACT, 29 U.S.C. Sections 621,
et seq.; THE OLDER WORKERS BENEFIT PROTECTION ACT; THE AMERICANS WITH
DISABILITIES ACT, 42 U.S.C. Sections 12101, et seq.; THE FAIR LABOR
STANDARDS ACT, 29 U.S.C. Sections 1001, et seq.; or any other federal,
state, or local laws regulating Xxxxxxxx'x employment or service on the
Board of Directors of the Company. Xxxxxxxx further understands that
this release extends to but is not limited to all Claims that Xxxxxxxx
has or may have for wrongful discharge, breach of contract, promissory
estoppel or breach of an express or implied promise, misrepresentation
or fraud, retaliation, infliction of emotional distress, defamation, or
otherwise based on any theory, whether developed or undeveloped,
arising from or related to Xxxxxxxx'x employment or the separation of
Xxxxxxxx'x employment with the Company, or any other fact or matter
occurring prior to Xxxxxxxx'x execution of this Agreement.
(b) Xxxxxxxx further agrees that Xxxxxxxx will not institute
any claim for damages, by charge or otherwise, nor otherwise authorize
any other party, governmental or otherwise, to institute any claim for
damages via administrative or legal proceedings against the Company or
its subsidiaries or their respective officers, executives, agents,
assigns, insurers, representatives, counsel, administrators,
successors, shareholders, and/or directors. Xxxxxxxx also waives the
right to money damages or other legal or equitable relief awarded by
any governmental agency related to any such claim.
(c) Nothing in this Section 9 shall alter, modify, release or
apply to the rights, obligations, covenants, representations or
warranties of the Parties under or in this Agreement and the Continuing
Agreements.
10. Indemnification. Without in any way limiting any of the rights and
remedies otherwise available to any Releasee, Xxxxxxxx shall indemnify and hold
harmless each Releasee from and against all loss, liability, claim, damage or
expense (including costs of investigation and defense and reasonable attorney's
fees) whether or not involving third party claims, arising
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directly or indirectly from or in connection with the assertion by or on behalf
of Xxxxxxxx of any Claim or other matter purported to be released pursuant to
this Agreement.
11. Agreement Not to Re-Apply or Accept Future Employment. Unless
requested to do so by the Company, Xxxxxxxx agrees that for a period of five (5)
years beginning with Xxxxxxxx'x execution of this Agreement, Xxxxxxxx will not
at any time in the future re-apply for or accept any type of employment with the
Company or any of its subsidiaries.
12. No Admission. This Agreement is not an admission by the Company
that it has acted wrongfully and the Company disclaims any liability or
obligation to Xxxxxxxx or any other person on the part of itself, its directors,
its officers, its employees, its representatives, and its agents.
13. No Adequate Remedy. Xxxxxxxx agrees it is impossible to measure in
money all of the damages which will accrue to the Company by reason of
Xxxxxxxx'x breach of any of Xxxxxxxx'x obligations under this Agreement.
Therefore, if the Company shall institute any action or proceeding to enforce
the provisions of this Agreement, Xxxxxxxx hereby waives the claim or defense
that the Company has an adequate remedy at law, and Xxxxxxxx shall not raise in
any such action or proceeding the claim or defense that the Company has an
adequate remedy at law.
14. No Assignment. This Agreement is personal to Xxxxxxxx and may not
be assigned by Xxxxxxxx. Any attempted assigned or transfer of this Agreement by
Xxxxxxxx shall be void. The Company and Xxxxxxxx acknowledge that the Franchise
Agreement and Area Development Agreement are and will continue to be assignable
agreements in the future subject to the restrictions stated within those
respective agreements.
15. Enforceable Contract. This Agreement shall be governed by the laws
of the State of Tennessee. If any part of this Agreement is construed to be in
violation of any law, such part of the Agreement shall be modified to achieve
the objective of the parties to the fullest extent permitted and the balance of
this Agreement shall remain in full force and effect.
16. Entire Agreement. Xxxxxxxx agrees that this Agreement and the
Continuing Agreements contain the entire agreement between Xxxxxxxx and the
Company with respect to the subject matter hereof and there are no promises,
undertakings or understandings outside of this Agreement and the Continuing
Agreements, and this Agreement supersedes all prior or contemporaneous
discussions, negotiations and agreements, whether written or oral with respect
to the matters set forth herein. Any modification of or addition to this
Agreement must be in writing, and signed by an officer of the Company and
Xxxxxxxx.
21. ACKNOWLEDGEMENT. XXXXXXXX AFFIRMS THAT XXXXXXXX HAS READ THIS
AGREEMENT AND HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT. THE PROVISIONS OF THIS AGREEMENT ARE UNDERSTANDABLE TO XXXXXXXX,
XXXXXXXX HAS HAD ADEQUATE TIME TO CONSIDER THE TERMS OF THIS AGREEMENT, AND
XXXXXXXX HAS ENTERED INTO THIS AGREEMENT KNOWINGLY, FREELY AND VOLUNTARILY.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their signatures below.
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
BACK YARD BURGERS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Title: Chief Executive Officer
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