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Exhibit 10.23
September 29, 1999
Mr. G. Arthur Seelbinder
210 El Brillo Way
Palm Beach, FL 33480
Dear Arthur:
As of August 19, 1999, we have agreed that you will no longer
serve as our Chairman of the Board and chief executive officer. This letter
sets out the terms under which you have agreed to continue as our
employee.
1. Agreement relating to continued employment. You will
remain a Cooker employee through August 19, 2001. During that time:
- so long as you continue as a board member, you will
provide advice and analysis to the Chairman of the
Board regarding real estate acquisitions and
dispositions and whatever other advice you may be
requested to supply from time to time.
- you will continue to receive your base compensation at
the same rate at which you are currently compensated.
- you will maintain your current participation in the
executive bonus plan at your current level through
August 19, 2000. Your participation for the period
from July 1, 2000 to August 19, 2000 is pro-rata based
on the number of days you are employed divided by
180.
- options which have been granted to you as of the date
of this letter will continue to vest.
- you will continue to have the use of the two cars: a
1998 Jaguar and a 1996 Jeep. We will maintain our
current policy regarding your car expenses.
- You and your wife will continue to participate in our
executive health plan. After termination of your
employment, you may continue in our general health
plan by paying applicable premiums, so long as your
inclusion complies with applicable laws and the terms
of the program, including the terms of any applicable
reinsurance coverage.
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2. Agreements relating to the Bank Loan Guaranty. We
have guaranteed payment of a loan from the Chase Manhattan Bank to you
which is described in detail in our Annual Report on Form 10-K filed with
the Securities and Exchange Commission and in the audited financial
statements for fiscal year 1998 included in it. With respect to our
guaranty, you agree:
- to continue to honor the existing arrangements with us
concerning the Bank Loan Guaranty and pay us a
guaranty fee each year that the guarantee remains
outstanding. The amount of the guaranty fee is 1/4
percent of the outstanding principal of the guaranteed
loan due on March 9th of each year. You agree that if
you do not pay the guaranty fee, we may apply any
payments we are obligated to make to you under this
agreement to the guaranty fee.
- to reimburse us for the amount by which the interest on
our guaranty related deposit with the Bank is less than
the interest we pay for the deposited funds under our
existing Term Loan and Revolver. The difference shall
be calculated as of the end of each calendar quarter.
You agree that if you do not pay the interest
differential, we may apply any payments we are
obligated to make to you under this agreement to the
unpaid differential.
- to pay us 1/2 of any incentive bonus award paid to you
by us to pay principal and interest on the bank loan in
accordance with its terms. We agree that the amount to
be paid to the bank out of any bonus award will be
calculated on a "net of withholding tax" basis. You
agree that we may make any such payments directly to
the bank.
- you agree that if the bank loan matures by its terms or
by action of the bank all amounts payable to you under
this agreement will be paid directly to the bank and
applied to the loan as provided for in the relevant loan
documents. If the bank loan obligations are paid in full,
any remaining amounts due to you under this agreement
will be paid to us and applied to any unpaid obligations
of you to us, which obligation include any amounts paid
by us on account of the guaranty.
- you agree to provide us with a personal financial
statement certified by you to be true and correct in all
material respects, or other acceptable indication of your
financial condition, by October 15, 1999, and on each
January 1 thereafter. You will notify us when there is
any material change in your net worth - a change of
more than 5% will be considered material other than
changes resulting from fluctuations in the price of our
common shares.
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3. Agreement relating to receivables. As of the date of this
agreement, you owed us approximately $212,000 on account of expense
advances, accruals relating to interest differentials on the bank loan, and
other items as described on the attachment to this letter. We agree to
forgive your payment of such items.
4. Agreements relating to your life insurance policy and
off-site office.
- In addition to the other payments described in this letter
agreement, we will pay you as an offsite office
allowance equal to the difference between 1/2 of your
June 30, 1999 bonus, net of withholding tax, and
$100,000. This amount will be paid to you in 12 equal
installments beginning September 3, 1999 and
continuing on the first business day of each of the next
11 months.
- We will continue to keep the existing whole life policy
on your life in effect through the termination of your
employment. At termination of your employment, we
will assign it to your nominee if the bank loan has been
satisfied and all of your obligations to us, including the
obligation to repay any amounts paid by us on account
of the guaranty. If the bank loan has not been satisfied,
or you have not satisfied all of you obligations to us, we
will continue to own the policy to secure those
obligations.
5. Releases. At the same time you sign this letter you will
sign and deliver to us a general release, releasing Cooker, its directors,
officers, employees, and agents from all claims you may have against
them and any obligations they may have to you as of the date of the letter,
regardless of whether you know about such claims or obligations, other
than those obligations provided for in this agreement. The form of the
general release is attached to this letter. We will execute a similar release
in your favor.
6. Jurisdiction. This agreement is to be governed by the laws
of the State of Florida, except for choice of law provisions which would
select the law of a different jurisdiction if they were applied.
Very truly yours,
COOKER RESTAURANT CORPORATION
By: /S/ HENRY R. HILLENMEYER
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HENRY R. HILLENMEYER, CHAIRMAN
AND CHIEF EXECUTIVE OFFICER
ACCEPTED AND AGREED TO THIS
30 DAY OF SEPTEMBER, 1999.
/S/ G. ARTHUR SEELBINDER
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G. ARTHUR SEELBINDER
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GENERAL RELEASE AND WAIVER
COOKER RESTAURANT CORPORATION, including its
heirs, successors and assigns (collectively the "Releasor"), in
consideration of G. Arthur Seelbinder ("Seelbinder") entering into a letter
agreement dated September 29, 1999 with Releasor (the "Letter"), to
which the release is attached, fully releases, Seelbinder and his
attorneys, agents, successors and assigns (collectively, the
"Released Parties"), of and from any and all rights, claims, demands,
damages, judgments, executions, actions, suits and causes of action of
any nature whatsoever, whether known or unknown, direct or indirect,
mature or contingent, whether arising at law or in equity, which the
Releasor may have had, may now have or may in the future have against
the Released Parties or any of them by reason of any act, omission,
matter, transaction, event or thing from the beginning of time to and
including the date of this General Release and Waiver against the Released
Parties, or any of them, including without limitation all claims or causes
of action which relate to or arise out of Seelbinder's employment, except
as provided in the Letter or which arise from Cooker's guarantee of a
loan to Seelbinder by the Chase Manhattan Bank, which is described in
detail in Cooker's Annual Report on Form 10-K filed with the
Securities and Exchange Commission and in the audited financial
statements for fiscal year 1998 included in it, including, without
limitation, a letter from Seelbinder to Releasor's Board
of Directors dated January 30, 1998.
The Releasor hereby waives, to the fullest extent permitted by law,
the benefits of any statute, law, rule, regulation or common law, which
may limit the scope of the covenants and releases contained herein.
The Releasor intends by this General Release and Waiver to
forever release, remise, acquit, waive, satisfy and forever discharge the
Released Parties of and from any and all of the claims and rights described
above, it being understood that all such claims or rights which the
Releasor or any person who claims by, through or under the Releasor may
have against the Released Parties shall be forever released, remised,
acquitted, waived, satisfied and forever discharged, and such persons shall
be forever barred from bringing or asserting the same in their own name or
names, jointly or with or through any other person, natural, corporate or
otherwise.
The Releasor acknowledges that the terms of this General Release
and Waiver are contractual and not a mere recital. Furthermore, the
Releasor acknowledges that the Releasor has not been influenced in any
manner in making this General Release and Waiver by any representations
or statements made by or on behalf of the Released Parties, that the
Releasor has been given the opportunity to seek the advice of counsel in
connection with the effect of the execution and delivery of this General
Release and Waiver, that the Releasor has carefully read and fully
understands the contents of this General Release and Waiver, and that the
Releasor has duly executed this General Release and Waiver freely and
voluntarily, intending and agreeing to be fully bound by the terms hereof.
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IN WITNESS WHEREOF, the Releasor has executed this General
Release and Waiver this 30 day of September, 1999.
WITNESSES:
/S/ SALLIE S. HILLENMEYER COOKER RESTAURANT CORPORATION
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Print Name: SALLIE S. HILLENMEYER
/S/ JOSEPHINE K. DARWIN By: /S/ HENRY R. HILLENMEYER
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Print Name: JOSEPHINE K. DARWIN Henry R. Hillenmeyer, Chairman
and Chief Executive Officer
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GENERAL RELEASE AND WAIVER
G. ARTHUR SEELBINDER, including his heirs, successors and
assigns (collectively the "Releasor"), in consideration of Cooker
Restaurant Corporation ("Cooker") entering into a letter agreement dated
September 29, 1999 with him (the "Letter"), to which the release is
attached, fully releases, Cooker, its subsidiaries and each of their
shareholders, officers, directors, attorneys, employees, agents,
predecessors, successors and assigns in their capacities as such
(collectively, the "Released Parties"), of and from any and all rights,
claims, demands, damages, judgments, executions, actions, suits and
causes of action of any nature whatsoever, whether known or unknown,
direct or indirect, mature or contingent, whether arising at law or in equity,
which the Releasor may have had, may now have or may in the future
have against the Released Parties or any of them by reason of any act,
omission, matter, transaction, event or thing from the beginning of time to
and including the date of this General Release and Waiver against the
Released Parties, or any of them, including without limitation all claims or
causes of action which relate to or arise out of his employment, except as
provided in the Letter or which arise from Cooker's guarantee of a loan to
Releasor by Chase Manhattan Bank, which is described in detail in
Cooker's Annual Report on Form 10-K filed with the Securities Exchange
Commission and in the audited financial statements for fiscal year 1998
included in it.
The Releasor hereby waives, to the fullest extent permitted by law,
the benefits of any statute, law, rule, regulation or common law, which
may limit the scope of the covenants and releases contained herein.
The Releasor intends by this General Release and Waiver to
forever release, remise, acquit, waive, satisfy and forever discharge the
Released Parties of and from any and all of the claims and rights described
above, it being understood that all such claims or rights which the
Releasor or any person who claims by, through or under the Releasor may
have against the Released Parties shall be forever released, remised,
acquitted, waived, satisfied and forever discharged, and such persons shall
be forever barred from bringing or asserting the same in their own name or
names, jointly or with or through any other person, natural, corporate or
otherwise.
The Releasor acknowledges that the terms of this General Release
and Waiver are contractual and not a mere recital. Furthermore, the
Releasor acknowledges that the Releasor has not been influenced in any
manner in making this General Release and Waiver by any representations
or statements made by or on behalf of the Released Parties, that the
Releasor has been given the opportunity to seek the advice of counsel in
connection with the effect of the execution and delivery of this General
Release and Waiver, that the Releasor has carefully read and fully
understands the contents of this General Release and Waiver, and that the
Releasor has duly executed this General Release and Waiver freely and
voluntarily, intending and agreeing to be fully bound by the terms hereof.
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IN WITNESS WHEREOF, the Releasor has executed this General
Release and Waiver this 30 day of September, 1999.
WITNESSES:
/S/ MARTIN V. KATZ
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Print Name: MARTIN V. KATZ
/S/ TRACIE C. SIMONDS /S/ G. ARTHUR SEELBINDER
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Print Name: TRACIE C. SIMONDS G. ARTHUR SEELBINDER