January 15, 1999
Via Federal Express
Mr. Randall K. Ziegler
10 Cooper Kettle Road
Trumbull, CT 06611
Re: Separation and Consulting Agreement
Dear Randy:
This letter shall constitute the Separation and Consulting
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.7 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
January 15, 1999 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. (a) The Company agrees to retain you to provide consulting services to the
Company for a term commencing on the Effective Date and terminating nine months
thereafter (the "Consulting Term"). During the Consulting Term, you shall, only,
as and when reasonably requested by the Company's Group President - Recreation
and Leisure, from time to time, act as a consultant and render assistance and
participation, giving at all times the full benefit of your knowledge, expertise
and background, in all matters involved in or relating to the business of the
Company and its subsidiaries. During the Consulting Term you shall work
exclusively for the Company unless the Company's Group President - Recreation
and Leisure otherwise agrees. You shall report directly to the Company's Group
President- Recreation and Leisure. It is expected that you will perform your
services out of your home except for such times as the Company's Group President
reasonably requires you to travel or be present at the Company's offices. The
Company understands and agrees that during the Consulting Term you may seek
employment outside the Company and therefore may be unavailable to perform
hereunder if you need to interview for employment.
In consideration for your consulting services hereunder, you
shall continue to receive your salary of $13,750.00 per month for each month
during the Consulting Term, payable in accordance with the Company's normal
payroll practices.
In addition, you shall receive the additional bonuses set
forth below if the following accounts are awarded to the Company during the
Consulting Period and you use reasonable best efforts, if requested by the
Company, in helping the Company be awarded those accounts:
Portland (group of accounts) $25,000
Albuquerque Convention Center $ 5,000
Tulsa Convention Center $10,000
Wisconsin Center $10,000
Such payments, if any, shall be made within fifteen (15) days
of the Company's receipt of written notification of such awards.
You shall be reimbursed for reasonable out-of-pocket expenses
incurred by you in connection with consulting services; provided that such
expenses shall not exceed $250 without the prior written approval of the
Company. Such expenses shall be reimbursed promptly following receipt by the
Company of expense reports with accompanying supporting documentation in detail
reasonably acceptable to the Company.
2. The Company also agrees to pay you severance for the nine (9) month period
following the Consulting Term (the "Severance Period") in the amount of
$13,750.00 per month for each month during the Severance Period either (i)
payable in accordance with the Company's payroll practices or (ii) payable in
lump sum upon the expiration of the Consulting Term (the "Lump Sum Severance")
as you elect by sending written notice to the Company prior to the expiration of
the Consulting Term.
3. During the Consulting Term you shall continue to receive the Company health
and welfare benefits in accordance with Company policy. Also, vacation time will
accrue during the Consulting Term in accordance with Company policy. You shall
also be entitled to unused carryover vacation periods in accordance with Company
policy.
4. During 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 Consulting Term or 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.
5. During the Consulting Term and the Severance Period the Company shall
continue to provide you the vehicle you currently drive in accordance with
Company policy, provided however, that the Company shall not be required to pay
such allowance (i) once you commence full-time employment with any other
corporation or entity during the Consulting Term or the Severance Period, or
(ii) after you elect to be paid the Lump Sum Severance as set forth in Section
A2 above.
6. The Company shall also pay you the balance of your 1997 Incentive Bonus equal
to thirty-five thousand ($35,000.00) dollars in lump sum at such time as Company
employees are paid such bonuses in 1999.
7. The Company shall pay, at your request, up to $20,000 for
outplacement services upon presentation of appropriate documentation therefor.
8. You shall have the right to keep the Company's computer
hardware and peripherals and non proprietary software applications, fax machine
and cellular telephone you currently utilize for your personal use.
9. The Company hereby releases and discharges you, your heirs,
successors, assigns, agents, and counsel (collectively, the "Ziegler 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 Ziegler 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.
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 of the Company, substantially in the form of
Exhibit A 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. Notwithstanding the foregoing, the
Company acknowledges that you may call upon clients of the Company after the
Consulting Term, provided that you do not violate the terms of this Agreement by
disclosing the Company's confidential information or disparaging the Company or
acting in a way which would constitute tortitious behavior or otherwise violate
the law. This obligation of confidentiality shall survive the termination of
this Agreement. Upon the termination of the Consulting Term, 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, except for data and
documents relating to your service as a member of the Board of Directors, which
you may maintain.
3. During the Consulting Term, except with the prior written consent of the
Company, you shall not (whether as an officer, director, owner, employee,
consultant, partner or other direct or indirect participant) engage in any
Competitive Business. "Competitive Business" shall mean the provision of
contract food services. For the nine (9) month period following the Effective
Date, you shall also not interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between the Company and any of its
subsidiaries and any account, customer, supplier or employee of the Company or
any of its subsidiaries.
4. During the nine (9) month period following the Effective
Date, except with the prior written consent of the Company, you will not,
directly or indirectly, employ, solicit for employment, or advise or recommend
to any other person that they employ or solicit for employment, any person
employed at the time by the Company or any of its subsidiaries.
5. You shall be entitled to terminate the Consulting Services
at any time upon 14 days' written notice to the Company. Effective as of the
date of such termination, you shall no longer be obligated under Section B.3
hereof, but shall continue to receive payments from the Company throughout the
balance of the Consulting Term as well as the Severance Period.
6. 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 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. Further, you are
not giving up your right to file for unemployment insurance benefits at the
appropriate time if you so choose, and your signing of this release will not
affect your rights, if any, to coverage by worker's compensation insurance.
7. 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.
8. This Agreement shall be binding on, and for the benefit of
your heirs, the successors and assigns of the parties hereto. The benefits
payable hereunder shall survive your death or disability.
9. 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.
10. 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.
11. This Agreement shall be governed by the laws of the State
of Connecticut without regard to conflict of laws principles.
12. The Company agrees to pay reasonable legal fees you incur
in connection with the negotiation and execution of this Agreement of up to
$4,000.00.
13. You shall receive the benefits set forth in Paragraphs A1,
A2 and B5 whether or not you are employed by any other corporation or other
entity.
14. This will confirm that the Company will continue to
indemnify you to the fullest extent permitted under Section 145 of the Delaware
General Corporation Law.
Please acknowledge your understanding of and agreement to the
provisions of this Agreement by signing and dating the statement below.
Very truly yours,
Ellen Keats
Senior Vice President
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 CONNECTICUT. THE COMPANY
HAS ADVISED ME TO CONSULT WITH AN ATTORNEY, AND I HAVE DONE SO, PRIOR TO SIGNING
THIS AGREEMENT.
SIGNATURE: DATE: JANUARY_____, 1999
Randall K. Ziegler
EXHIBIT B
Resignation
I hereby resign as Executive Vice President of Fine Host Corporation
and as director and officer of all its subsidiaries effective as of January 15,
1999.
Randall K. Ziegler