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EXHIBIT 4.8
SEVERANCE AGREEMENT
This Severance Agreement is entered into as of July 29, 1997, by and
between Roadhouse Grill, Inc. (the "Company") and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, III
("Toole").
WHEREAS, Toole was employed by the Company pursuant to that certain
Employment Agreement dated October 1, 1994, as amended and superceded by that
certain Amended Employment Agreement dated October 24, 1996 (the "Employment
Agreement"), and pursuant to the Employment Agreement, served as President of
the Company; and
WHEREAS, Toole and the Company have mutually agreed to Toole's
resignation from employment by the Company and to set forth their agreement
with respect to such termination and certain other matters.
NOW, THEREFORE, in consideration of the agreements and covenants
hereinafter set forth, the parties agree as follows:
1. Termination of Employment. Effective as of July 29, 1997 (the
"Severance Date"), the employment of Toole by the Company will terminate and
Toole shall not have any further rights, whether to employment, compensation,
benefits, prior notification or otherwise, except as provided in this
Agreement.
2. Severance Compensation.
(a) Severance Pay. From and after the Severance Date, the
Company will pay to Toole an aggregate severance pay equal to $169,230.76
payable over forty-four (44) weeks in equal bi-weekly installments, commencing
with the first installment on August 4, 1997, net of applicable withholding
taxes ("Severance Pay").
(b) Bonus. For the current fiscal year ending December 28,
1997, Toole shall be entitled to a Bonus ("Bonus") in the amount of Fifty
Thousand Dollars ($50,000), payable within ninety (90) days after the end of
such fiscal year, if Net Income (as defined in Section 4.B.(4) of the
Employment Agreement) for such fiscal year exceeds the Net Income for the
immediately preceding fiscal year. No other bonus shall be payable pursuant to
this Agreement, the Employment Agreement, or otherwise. Such Bonus payment
shall be net of applicable withholding taxes.
(c) Manner of Payment. All payments of Severance Pay and Bonus
shall be mailed to Toole by regular mail at the address set forth herein or at
such other address as Toole may specify in writing. If Toole does not receive
any payment mailed by the Company within three (3) business days of the date it
is due, he may report it to the Company as "lost" in which event the Company
shall promptly issue and deliver to Toole a replacement check so that he
receives it the next day after he reports it lost.
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(d) Default. Failure of the Company to pay any payment of
any amount due Toole hereunder within ten (10) days of the date such payment is
due shall be a material breach of this Agreement and a "Default." In the event
of a Default, Toole may accelerate payment of Severance Pay and, if earned,
Bonus by giving written notice thereof to the Company, and the Company shall,
within ten (10) days of the date such notice is given, pay Toole in full and in
one lump sum, without discount, all unpaid Severance Pay and earned Bonus
(whether it was then due or to be paid at a later date).
(e) Late Payments. Commencing on Default, all due and unpaid
amounts of Severance Pay and Bonus shall accrue interest ("Interest") from the
date due until paid in full at an annual rate of ten percent (10%). Interest
shall be due and payable when accrued. All payments hereunder shall be applied
first to accrued and unpaid Interest, and then to Severance Pay and Bonus as
applicable.
3. Stock Options.
(a) Toole acknowledges that he holds currently stock options
to purchase 316,667 shares of the Company's Common Stock which were granted to
him pursuant to that certain Stock Option Agreement dated October 24, 1996 and
that certain Stock Option Agreement dated October 1, 1994 (collectively, the
"Stock Option Agreements"). A schedule of such options and the exercise prices
thereof are listed on Schedule A. Without regard to the provisions of Section
3.A. of the Option Agreements, such options shall be immediately exercisable
and deemed "vested."
(b) Toole shall be permitted at any time within one (1) year
from August 1, 1997 to exercise the stock options listed on Schedule A in the
manner specified in Sections 3.B. and 3.C. of the Option Agreements. Any
options not exercised within said one (1) year period shall thereupon expire
and be of no further force or effect. The Stock Option Agreements are hereby
amended to the extent necessary to effectuate the provisions of Sections 3(a)
and 3(b) hereof, and shall remain in full force and effect as so amended.
(c) The parties agree and acknowledge that while the Company
will not withhold any amounts for income tax purposes upon Toole's exercise of
the options, Toole will nonetheless report as income the amounts required under
Section 83 of the Internal Revenue Code of 1986, as amended, and Toole further
agrees to indemnify and hold the Company harmless from and against any loss,
penalties or associated costs arising as a consequence of any failure by Toole
to pay federal income taxes when due.
(d) The Company agrees to file and cause to become effective
within five (5) business days of the execution hereof, a registration statement
on Form S-8 under the Securities Act of 1933, as amended, with respect to the
Stock Option Agreements and to keep such registration statement effective until
all options thereunder have been exercised or have expired.
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4. Restrictive Covenants.
(a) Confidential Information and Noncompetition
Agreement. The provisions of Section 8 of the Employment Agreement shall remain
in full force and effect and are hereby incorporated in this Severance
Agreement by reference and made a part hereof.
(b) Non-disparagement and Future Conduct. Toole agrees that he
will not make any statements about or relating to the Company, its officers,
directors, shareholders, agents, independent contractors, or counsel which are
disparaging or likely to cause embarrassment. Further, Toole shall cooperate
with the Company in its efforts to insure an orderly transition by providing
consultation to the Company until the sooner to occur of six months from the
date hereof, or the hiring and orientation of a new chief executive for the
Company, provided the time at which the cooperation shall be rendered shall be
subject to advance notice and Toole's prior commitments. Such cooperation shall
not require any expenditure of money by Toole, and shall not require more than
an average of four hours of time per week.. The Company agrees that neither it
nor its officers or directors will make any statements about or relating to
Toole or his businesses which are disparaging or likely to cause embarrassment.
5. General Releases.
(a) Toole hereby releases, discharges and acquits the
Company and its subsidiaries, affiliates, representatives, agents, employees,
officers, directors, shareholders, counsel, assigns and successors
(collectively referred to as "Releases"), of and from all claims, demands, sums
of money, actions, rights, causes of action, obligations and liabilities which
Toole has against the Releasees relating to or arising out of the Employment
Agreement or Toole's employment by the Company, including, but not limited to,
wrongful discharge, breach of contract, tort, the Civil Rights Act, Age
Discrimination in Employment Act, Employee Retirement Income Security Act or
any other federal, state or local legislation or common law relating to
employment or discrimination in employment or otherwise; provided, however,
that nothing contained herein shall release the Company from its obligations to
Toole as a stockholder or pursuant to this Agreement or the Stock Option
Agreements (as amended hereby), including any right he may have to corporate
indemnification.
(b) The Company hereby releases, discharges and acquits
Toole of and from all claims, demands, sums of money, actions, rights, causes
of action, obligations and liabilities which the Company has or which the
Company or any successor or assign of the Company against Toole relating to or
arising out of by Employment Agreement or Toole's employment with the Company;
provided, however, that nothing contained herein shall release Toole from any
wilful or intentional misconduct.
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6. Indemnity Obligation. The indemnity obligation of the
Company to Toole, as an officer and director of the Company, shall continue in
accordance with, and the Company shall indemnify Toole to the full extent
permitted by, the terms and conditions of Paragraph 10 of the Company's
Articles of Incorporation and the Company's Bylaws with respect to actions
taken on or prior to the Severance Date notwithstanding the termination of
Toole's employment.
7. Advice of Counsel. Toole represents and warrants that he
has independently consulted with legal counsel and financial or other advisors
of his choice with respect to this Agreement, that he has entered into this
Agreement of his own free will, that he and such counsel have reviewed this
Agreement. The Company represents and warrants that it has consulted with legal
counsel in connection with this Agreement, and agrees that, pursuant to
appropriate conflict waivers received, the law firm of ▇▇▇▇▇, McClosky, Smith,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A. has represented Toole in connection with this
Agreement and not the Company.
8. Miscellaneous.
(a) Each party will bear its own costs and expenses in
connection with the preparation, negotiation and execution of this Agreement.
(b) In the event any party hereto institutes legal
proceedings in connection with, or for the enforcement of, this Agreement, the
prevailing party shall be entitled to recover its costs of suit, including
reasonable attorneys' fees, at both trial and appellate levels, from the
non-prevailing party.
(c) This Agreement contains the entire understanding and
agreement of the parties relating to the subject matter hereof and supersedes
all prior communications, commitments and understandings, and this Severance
Agreement may not be amended or modified except in a writing signed by both
parties hereto.
(d) This Agreement shall be governed by the laws of the
State of Florida without regard to the conflicts of laws principles thereunder.
(e) This Agreement may be executed in counterparts, each
of which shall be considered an original but which shall constitute one and
the same instrument.
(f) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns, heirs,
beneficiaries, estate, executor, personal representative and legatees.
(g) Any notice herein required or permitted to be given to
be effective shall be given in writing and may be personally delivered
(including delivery by private courier services) or
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by telex, facsimile or telecopy, charges prepaid, to the party entitled thereto
addressed as set forth below (or to such other address as may be specified by a
party in accordance with this subsection), and shall be deemed to be duly given
or made when delivered by hand, unless such day is not a business day in which
case such delivery shall be deemed to be made or given as of the next
succeeding business day or, in the case of telex, facsimile or telecopy, when
sent, so long as it was received during normal business hours on a business day
and otherwise such delivery shall be deemed to be made or given as of the next
succeeding business day:
To: Mr. J. ▇▇▇▇▇ ▇▇▇▇▇, III
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
To: Roadhouse Grill, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
ROADHOUSE GRILL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, III
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, III
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SCHEDULE A
# of Grant Exercise
Optionee Options Date ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ III 150,000 10/24/96 $5.58
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ III 166,667 10/1/94 $7.50
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Total Shares 316,667
