FINE HOST CORPORATION
3 Greenwich Office Park
Greenwich, Connecticut 06831
September 15, 1998
Ms. Catherine B. James
2 Oakwood Lane
Greenwich, CT 06830
Re: Separation Agreement
Dear Cathy:
This letter shall constitute the Separation Agreement (the "Agreement")
between you and Fine Host Corporation (the "Company"). Upon your execution of
this Agreement and failure to revoke within the seven-day period described in
Section B.10 hereof, this Agreement shall replace any and all prior employment
or separation arrangements you may have had with the Company. The effective date
of this Agreement shall be the latter of September 30, 1998 or the eighth day
following your execution of this Agreement (the "Effective Date"), provided you
have not revoked this Agreement prior to such date.
A. In consideration of your execution of this Agreement, on and as of the
Effective Date:
1. The Company agrees to pay you severance in the amount of $270,000.00
(the "Severance") on the Effective Date.
2. During the twelve (12) month period following the Effective Date (the
"Severance Period"), the Company shall pay all premiums that would otherwise be
required of you to obtain the same medical coverage as in effect for you and
your dependents immediately prior to the Effective Date in accordance with the
federal Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), subject only to your timely election to continue medical coverage
through COBRA; provided, that the Company shall have no obligation to pay such
premiums beyond the expiration of the Severance Period; and provided further,
that the Company shall not be required to pay such premiums in the event you
accept employment with any corporation or other entity during the Severance
Period and such corporation or other entity provides you with medical coverage
on terms substantially similar to the benefits provided to you by the Company.
3. The Company shall continue to indemnify you to the fullest extent
permitted under Section 145 of the Delaware General Corporation Law (the "DGCL")
and shall advance expenses to you in accordance with subsection (e) thereof
subject to Section B.3 hereof.
4. Upon the Effective Date, the Company shall execute and deliver to you a
letter of recommendation substantially in the form of Exhibit A hereto. In
addition, the Company shall issue a press release regarding, among other things,
your resignation at such time and in such form as the parties may agree.
5. The Company hereby releases and discharges you, your heirs, successors,
assigns, agents, and counsel (collectively, the "James Releasees") of and from
all actions, causes of action, claims, demands, costs, and expenses for damages,
known or unknown, which the Company had or now have or may have against you or
the James Releasees, arising at any time up to and including the date of this
release and waiver, other than specific claims to enforce the terms of this
Agreement. The Company also agrees to indemnify and hold harmless you and the
James Releasees against any and all claims brought by or against a third party,
including without limitation any damages awarded and any attorneys' fees,
litigation expenses, and costs incurred, in which you or the James Releasees are
a party, a witness, or a potential witness because of your employment with the
Company in any capacity, or because of James's service as Director, all in
accordance with Section 145 of the Delaware General Corporation Law (the "DGCL")
subject to Section B.3 below.
B. In consideration of the above-referenced payments and benefits, you
agree as follows:
1. Not later than the Effective Date, you shall execute and deliver to the
Company a letter of resignation pursuant to which you shall resign as Executive
Vice President and Chief Financial Officer and a director of the Company and as
an officer and/or director of any subsidiaries of the Company, substantially in
the form of Exhibit B hereto.
2. It is understood that during the course of your employment you have been
exposed to material and information which is confidential to the Company. All
such material and information, whether tangible or intangible, made available,
disclosed or otherwise known to you by reason of your prior employment with the
Company shall be considered the sole property of the Company, shall be used by
you only for the benefit of the Company and shall not be disclosed to others
except with the Company's prior approval. This obligation of confidentiality
shall survive the termination of this Agreement. Upon the Effective Date, you
shall promptly return all material data and documents which you may then have in
your possession as a result of your services to the Company.
3. You agree to repay the Severance Payment made to you under this
Agreement and that the Company's obligations under this Agreement, including
without limitation the provision of benefits, shall immediately cease if it
shall ultimately be determined that you are not entitled to be indemnified by
the Company as authorized in Section 145 of the DGCL. In addition, you agree to
repay any amounts advanced to you or on your behalf pursuant to Section A.5 or
pursuant to the Company's Restated Certificate Incorporation or Bylaws if it
shall ultimately be determined that you are not entitled to be indemnified by
the Company in accordance with Section 145 of the DGCL.
4. You hereby release and discharge forever the Company, and all of its
predecessors, successors, and assigns, all of the Company's divisions,
subsidiaries, facilities, parents, related or affiliated entities, and all of
its current and former officers, directors, shareholders, employees, insureds,
agents, and counsel, including, without limitation, any and all current and
former management and supervisory employees (collectively, the "Released
Parties") of and from all actions, causes of action, claims, demands, costs, and
expenses for damages, known or unknown, which you had or now has or may have
against the Company or any of the other Released Parties, arising at any time
prior to the date of this release and waiver. This release includes, but is not
limited to, (a) any claim of discrimination or retaliation on any basis,
including, without limitation, age, sex, race, color, national origin, religion,
handicap or disability, pension qualification, marital status, sexual preference
or orientation, political affiliation, or appearance, under any federal, state,
city or local statute, ordinance, order, or law, including but not limited to
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the
Civil Rights Act of 1991, the Americans With Disabilities Act, the Age
Discrimination in Employment Act, the Older Worker's Benefit Protection Act of
1990, the Equal Pay Act, the Pregnancy Discrimination Act of 1978, the Employee
Retirement Income Security Act of 1974, the Worker Adjustment and Retraining
Notification Act, as all may have been from time-to-time amended; (b) any claim
related to your resignation from your employment as Executive Vice President and
Chief Financial Officer, or your resignation as Director, of the Company or any
subsidiary of the Company and/or any refusal by the Company to reemploy you, and
any other claim by you against the Released Parties under any federal, state, or
local statute, law, or ordinance; and (d) any claim under any contract, tort, or
any other state, local or federal statutory or common law, including but not
limited to any claim that the Released Parties, jointly or severally, breached
any contract or promises, express or implied, or any term or condition of your
employment, and any claim for promissory estoppel or wrongful or constructive
discharge arising out of your employment with the Company or any of the Released
Parties and/or your resignation from such employment. This Agreement is intended
to cover all possible legal and/or equitable relief, including, without
limitation, reinstatement, future right to reemployment, wages, backpay,
frontpay, benefits, perquisites, compensatory damages, punitive damages for loss
of consortium, and attorneys' fees. However, this release and waiver shall not
apply to claims by you against the Company or the Released Parties to enforce
the terms of this Agreement.
5. You will have twenty-one (21) days from the date you receive this
Agreement (including the release contained herein) to consider and sign. If you
do not sign and return this Agreement within such 21 day period, the Company
will consider your action a refusal to sign, and you will not be entitled to the
consideration described above. If you do sign this document, it will not be
effective for a period of seven days thereafter, during which time you can
change your mind and revoke your signature. To revoke your signature, you must
notify the Company in writing within seven days of the date you signed it. In
the event you revoke your signature you will not be entitled to the
consideration described above.
6. This Agreement shall be binding on the successors and assigns of the
parties hereto.
7. Unless disclosure is required by applicable law or regulation, you and
the Company will keep the terms of this Agreement confidential. Neither party
will take any action that is intended to, or would reasonably be expected to,
harm either you or the Released Parties or impair their reputations or lead to
unwarranted or unfavorably publicity regarding you or the Released Parties.
8. If any provision of this Agreement is declared invalid or unenforceable,
the remaining portions of the Agreement shall not be affected thereby and shall
be enforced.
9. This Agreement shall be governed by the laws of the State of New York
without regard to conflict of laws principles.
Please acknowledge your understanding of and agreement to the provisions of
this Agreement by signing and dating the statement below.
Very truly yours,
/s/ Gerald P. Buccino
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Gerald P. Buccino
President and Chief Executive Officer
Fine Host Corporation
MY SIGNATURE BELOW ACKNOWLEDGES THAT I HAVE READ THE ABOVE, UNDERSTAND WHAT I AM
SIGNING AND AM ACTING OF MY OWN FREE WILL. I UNDERSTAND THAT IF ANY PROVISION OF
THIS AGREEMENT IS FOUND TO BE INVALID OR UNENFORCEABLE, IT WILL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION. I UNDERSTAND THAT THIS
AGREEMENT AND ITS TERMS REPLACE IN ALL RESPECTS ANY PRIOR EMPLOYMENT
ARRANGEMENTS I MAY HAVE HAD WITH THE COMPANY. I FURTHER AGREE THAT THIS
AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE COMPANY HAS
ADVISED ME TO CONSULT WITH AN ATTORNEY, AND I HAVE DONE SO, PRIOR TO SIGNING
THIS AGREEMENT.
SIGNATURE: /s/ Catherine B. James DATE: September 15, 1998
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CATHERINE B. JAMES
EXHIBIT B
Resignation
I hereby resign as (i) a director of Fine Host Corporation (the "Company"),
(ii) a member of any committee of the Board of Directors of the Company and
(iii) an officer or director of the Company and any subsidiary of the Company,
in each case effective September 30 , 1998.
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Catherine B. James