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Exhibit 10.23
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the "Agreement") is made as of
the 1st day of May, 1996, between SHONEY'S, INC., a Tennessee corporation,
whose principal place of business is located at 1727 Elm Hill Pike, Nashville,
Tennessee 37210 (the "Company"), and CHARLES E. PORTER, a resident of Davidson
County, Tennessee, whose address is 12212 Old Hickory Boulevard, Hermitage,
Tennessee 37076 (the "Executive").
W I T N E S S E T H:
WHEREAS, Company and Executive previously have entered into an
Employment Agreement, dated as of January 17, 1995 (the "Employment
Agreement"), pursuant to which Company employed Executive as its President in
accordance with its terms; and
WHEREAS, Executive indicated his desire to retire as President of the
Company effective January 31, 1996 and as an employee of the Company as of May
1, 1996; and
WHEREAS, Company desires to retain Executive as a consultant for a
period of one year following the effective date of his retirement and Executive
desires to be retained to provide such consulting services;
WHEREAS, Company and Executive now wish to amend and restate the
Employment Agreement and modify the terms thereof as set forth herein in order
to reflect their modified agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound,
Company and Executive hereby agree as follows:
1. TERM OF RETENTION.
1.1. RETENTION. Company hereby retains Executive, and
Executive hereby agrees to be retained by Company, for the Consulting Term (as
hereinafter defined).
1.2. CONSULTING TERM. The "Consulting Term" shall mean
the period commencing on the date of this Agreement and ending on April 30,
1997. The Consulting Term shall not be extended or renewed.
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2. DUTIES OF EXECUTIVE; NONDISCLOSURE; NONCOMPETE.
2.1. GENERAL DUTIES. Executive is hereby employed as a
special consultant to the Chairman of the Board and Chief Executive Officer of
Company with such duties and responsibilities as Company's Chairman of the
Board and Chief Executive Officer may designate.
2.2. DEVOTION OF TIME TO COMPANY'S BUSINESS. Throughout
the Consulting Term: (a) Executive will be available to provide advice to
Company and to work on such special assignments as are designated by the
Chairman of the Board of Company that are consistent with the responsibilities
exercised by Executive during his tenure with the Company; and (b) Executive
may accept employment with another company so long as such employment (i) does
not interfere with Executive's obligations to provide advice and to work on
special assignments; and (ii) does not violate the provisions of either Section
2.3 or Section 2.4 hereof.
2.3. DISCLOSURE OF INFORMATION. Executive recognizes and
acknowledges that, as a result of his prior employment by Company and his
retention as a consultant, he has and may continue to become familiar with and
acquire knowledge of confidential information and certain trade secrets that
are valuable, special, and unique assets of Company. Executive agrees that any
such confidential information and trade secrets are the property of Company.
Therefore, Executive agrees that, for and during the entire Consulting Term,
any such confidential information and trade secrets shall be considered to be
proprietary to Company and kept as the private records of Company and will not
be divulged to any firm, individual, or institution except pursuant to and
within the course and scope of the services that Executive is to provide
hereunder. Further, upon termination of this Agreement for any reason
whatsoever, Executive agrees that he will continue to treat as private and
proprietary to Company any such confidential information and trade secrets and
will not release any such confidential information and trade secrets to any
person, firm, or institution, or use them to the detriment of Company. The
parties agree that nothing in this Agreement shall be construed as prohibiting
Company from pursuing any remedies available to it for any breach or threatened
breach of this Section 2.3, including, without limitation, the recovery of
damages from Executive or any person or entity acting in concert with
Executive.
2.4. COVENANT NOT TO COMPETE. Executive acknowledges that
Company's business is built upon the confidence of its customers, suppliers,
employees, and the general public, and that Executive will acquire confidential
knowledge that should not be divulged or used for his own benefit. Executive
covenants and agrees that during the Consulting Term, he will not engage in,
own, manage, operate, control, or participate in any food service business that
conducts or franchises activities which are the same as or similar to any of
the restaurant concepts and operations of Company as an employer, employee,
principal, partner, director, agent, consultant, or otherwise, directly or
indirectly, anywhere in the United States of America, without the prior
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express written consent of the Chairman of the Board and Chief Executive
Officer of the Company. Executive understands and acknowledges that his
violation of this covenant not to compete would cause irreparable harm to
Company and Company would be entitled to seek an injunction by any court of
competent jurisdiction enjoining and restraining Executive and each and every
other person concerned from any employment, service, or other act prohibited by
this Agreement. Executive and Company recognize and acknowledge that the area
and time limitations contained in this Agreement are reasonable. In addition,
Executive and Company recognize and acknowledge that the area and time
limitations are properly required for the protection of the business interests
of Company due to Executive's status and reputation in the industry and the
knowledge to be acquired by Executive through his association with Company's
business and the public's close identification of Executive with Company and
Company with Executive. The parties agree that nothing in this Agreement shall
be construed as prohibiting Company from pursuing any other remedies available
to it for any breach or threatened breach of this covenant not to compete,
including, without limitation, the recovery of damages from Executive or any
other person or entity acting in concert with Executive. Executive also agrees
that, in the event he breaches this covenant not to compete, Executive will pay
reasonable attorney's fees and expenses incurred by Company in enforcing this
covenant not to compete. Executive acknowledges and understands that, as
consideration for his execution of this Agreement and his agreement with the
terms of this covenant not to compete, Executive will receive employment by
Company in accordance with this Agreement as well as the Company's agreement to
be bound by the terms of this Agreement. Company acknowledges that Executive's
execution of this Agreement and agreement with the terms of this covenant not
to compete is consideration for Company's agreement to employ Executive
pursuant to this Agreement. If any part of this covenant not to compete is
found to be unreasonable, then it may be amended by appropriate order of a
court of competent jurisdiction to the extent deemed reasonable. Company shall
receive injunctive relief without the necessity of posting bond or other
security, such bond or other security being hereby waived by Executive. In
addition to any other remedies that the parties may have at law or in equity,
Executive and Company agree that, in the event of a breach by Executive of the
provisions of either Section 2.3 or Section 2.4 hereof, damages to Company
would be difficult to determine and, in the event of such breach by Executive,
Company shall be released from its obligation to make any further payments to
Executive under Section 3.1 hereof.
3. COMPENSATION; RETIREMENT BENEFITS.
3.1. FEE. As compensation for his services hereunder,
Executive shall receive a consulting fee per annum of $300,000, payable
commencing as of May 1, 1996 and ending on April 30, 1997 in accordance with
the general payroll practices of Company.
3.2. OTHER BENEFIT PROGRAMS. Effective with Executive's
retirement as of May 1, 1996, Executive acknowledges and agrees that, except as
expressly set forth herein, Executive's right to participate in all employee
benefit, bonus, stock option and similar programs, including,
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without limitation, programs of insurance, automobile plans, deferred
compensation arrangements, and all other benefits made available by Company to
its personnel ceased effective as of that date.
3.3. RETIREMENT BENEFITS. By reason of Executive's
retirement, effective May 1, 1996, Executive is entitled to, and shall receive
the following:
(a) the right, upon compliance with all applicable requirements
(including payment of premiums), to receive continuation
coverage under the Company's health insurance plan pursuant to
COBRA (Part 6 of Subtitle B of Title I of the Employee
Retirement Income Security Act of 1974, as amended and Section
4980B of the Internal Revenue Code of 1986, as amended);
(b) the right, subject to all applicable requirements, to convert
the total amount of Executive's life insurance in force on
April 30, 1996 to a term life or whole life insurance policy;
(c) payments of $2,500 for 120 consecutive months, commencing May
1, 1997, pursuant to the Company's Salary Continuation Plan,
with the balance of any unpaid installments to be continued to
the Executive's designated beneficiary in the event the
Executive were to die prior to all 120 payments being made;
(d) a lump sum distribution on the last business day of August,
1997 pursuant to the Company's Supplemental Executive
Retirement Plan ("SERP"), the amount of such distribution to
be determined under Sections 3.03, 3.04 and 4.19 of the SERP;
and
(e) a return of all contributions currently in Executive's account
under the Company's Employee Stock Purchase Plan.
4. ACKNOWLEDGEMENT OF BENEFITS AND RELEASE. In consideration of
the Company's entering into this Agreement with Executive, the Executive
irrevocably and unconditionally releases, acquits, and forever discharges the
Company and its officers, agents, representatives, employees, divisions,
successors, assigns, and all persons acting on behalf of, through, or at the
direction of the Company from any and all charges, complaints, claims, demands,
liabilities, controversies, costs, losses, expenses and causes of action,
including actual or potential attorneys' fees and costs, whether based on law,
statutes, contract, tort, or otherwise, known and unknown, which the Executive
now has, claims to have, or otherwise has accrued to the Executive, his heirs,
executors, administrators, legal representatives, successors or assigns,
arising out of or related to the Employment Agreement or Executive's employment
with the Company or the termination of that employment. This release includes
but is not limited to claims arising under federal, state or local law,
regulation, or policy prohibiting employment discrimination based on age,
including the Age Discrimination in Employment Act, or
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discrimination based on race, sex, national origin, religion, disability,
wrongful termination of employment, or any claims growing out of or based on
other statutes or legal restrictions on the Company's rights to terminate its
employees. The consideration mentioned above is accepted by Executive in full
compromise, settlement, and satisfaction of all claims for damages, equitable
relief, costs, attorneys' fees or other sums allegedly due based on, arising
out of, relating to or in connection with any alleged employment action,
interference with contract, or discrimination by the Company. As part of the
consideration for the payment of the above sum of money, Executive, for
himself, his heirs, executors, administrators, legal representatives,
successors and assigns has agreed to and does hereby indemnify and hold
harmless each and all of the parties hereby released from any and all claims,
demands, actions and causes of action of whatsoever nature or character which
have been or which may hereafter be asserted by any agency, person, firm or
corporation whomsoever claiming by, through or under Executive for back wages,
damages, or other relief claimed to be due as a result of the claims released
herein.
5. DEATH OF EXECUTIVE. In the event Executive dies during the
Consulting Term, upon Executive's death, Executive's estate shall be entitled
to receive all fees that would have been payable to Executive pursuant to
Section 3.1 following Executive's death had Executive not died. The
entitlement (and extent thereof) of Executive's estate or designated
beneficiary to any of the retirement benefits made available to Executive
pursuant to Section 3.3 shall be determined by the particular plan pursuant to
which such benefits are payable and/or made available if not otherwise
specified in this Agreement.
6. GENERAL PROVISIONS.
6.1. NOTICES. Any notices to be given hereunder by either
party to the other may be effected by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement (to the attention of the Secretary in
the case of notices to Company), but each party may change such address by
written notice in accordance with this Section 6.1. Notices delivered
personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of the second day following deposit in the
United States Mail.
6.2. ENTIRE AGREEMENT. This Agreement supersedes any and
all other agreements (including, without limitation, the Employment Agreement,
which is hereby wholly terminated and cancelled upon execution of this
Agreement), either oral or in writing, between the parties hereto with respect
to the employment of Executive by Company and contains all of the covenants and
agreements between the parties with respect to such employment in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied
herein and that no other agreement shall be valid or
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binding unless in writing and signed by the party against whom enforcement of
such agreement is sought. Any modification of this Agreement will be effective
only if it is in writing signed by the party against whom enforcement of such
modification is sought.
6.3. PARTIAL INVALIDITY. If any provision in this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
6.4. LAW GOVERNING AGREEMENT. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Tennessee.
6.5. WAIVER OF JURY TRIAL. Company and Executive hereby
expressly waive any right to a trial by jury in any action or proceeding to
enforce or defend any rights under this Agreement, and agree that any such
action or proceeding shall be tried before a court and not a jury. Executive
and Company hereby agree that any action or proceeding to enforce any claim
arising out of this Agreement shall be brought and maintained in any state or
federal court having subject matter jurisdiction and located in Nashville,
Tennessee. Executive irrevocably waives, to the fullest extent permitted by
law, any objection that he may have or hereafter have to the laying of the
venue of any such action or proceeding brought in any court located in
Nashville, Tennessee, and any claim that any such action or proceeding brought
in such a court has been brought in an inconvenient forum.
6.6. MISCELLANEOUS. Failure or delay of either party to
insist upon compliance with any provision hereof will not operate as and is not
to be construed to be a waiver or amendment of the provision or the right of
the aggrieved party to insist upon compliance with such provision or to take
remedial steps to recover damages or other relief for noncompliance. Any
express waiver of any provision of this Agreement will not operate and is not
to be construed as a waiver of any subsequent breach, irrespective of whether
occurring under similar or dissimilar circumstances. Executive acknowledges and
represents that the services to be rendered by him are unique and personal.
Accordingly, Executive may not assign any of his rights or delegate any of his
duties or obligations under this Agreement. The rights and obligations of
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of Company.
IN WITNESS WHEREOF, Executive has hereunto affixed his hand and
Company has caused this Agreement to be executed by its duly authorized officer
or representative as of the day and year first above written.
SHONEY'S, INC.
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By:
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Title:
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CHARLES E. PORTER
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