Sample Business Contracts

Severance, Non-Competition and Confidentiality Agreement - Americana Dining Corp. and Steven J. Wagenheim

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"Agreement")  dated as of March 18,  1996,  by and between  Steven J.  Wagenheim
("Employee") and Americana Dining Corp. ("Americana").


         WHEREAS,  Employee is employed by Americana  as  President  pursuant to
that certain  Employment  Agreement  dated March 28, 1994 (the "1994  Employment
Agreement"); and

         WHEREAS,  reference is made to the Asset Purchase Agreement dated as of
March 18, 1996, by and among  Americana and New Brighton  Ventures,  Inc.  ("New
Brighton  Ventures")  (together  with any  amendments  thereto or  modifications
thereof, the "Asset Purchase Agreement") pursuant to which New Brighton Ventures
will acquire the assets,  subject to certain  liabilities,  of the New Brighton,
Minnesota Champps Americana  restaurant (the  "Restaurant") from Americana for a
purchase price of One Million Three Hundred Fifty Thousand Dollars  ($1,350,000)
(the "Restaurant  Acquisition") subject to the terms and conditions set forth in
the Asset Purchase Agreement; and

         WHEREAS,  in connection  with the  Restaurant  Acquisition,  and by the
mutual  agreement of the parties,  Employee  will be relieved of his  employment
duties with Americana following the closing of such transaction,  upon the terms
and conditions set forth herein; and

         WHEREAS,  Employee and Americana desire to settle fully and finally all
differences between them, including any claims relating to Employee's employment
and termination from employment with Americana;

         NOW THEREFORE,  in  consideration  of the mutual promises and covenants
set forth in this  Agreement,  the  receipt and  sufficiency  of which is hereby
acknowledged, Employee and Americana agree as follows:

         1. Termination of Employment.  Employee agrees that his employment with
Americana will terminate  effective July 1, 1996, that he will not be reemployed
by Americana,  and that he will not apply for or otherwise seek  employment with
Americana or any of its  divisions,  subsidiaries,  or  affiliates  at any time.
Effective  as  of  the  Effective  Time  (as  defined  below),  the  duties  and
responsibilities of Employee as an employee of Americana will be as described in
Section 3(c) of this Agreement,  it being agreed and  acknowledged  that between
the Effective Date and June 30, 1996 the primary  business  activity of Employee
shall be to manage the Restaurant on behalf of New Brighton Ventures.


         2. Effective Date of Agreement.  This Agreement shall become  effective
as of the closing date of the  Restaurant  Acquisition  in  accordance  with the
terms of the Asset Purchase Agreement (the "Effective Date"), but subject in all
events to the  consummation of the Restaurant  Acquisition and effective only if
the Restaurant  Acquisition is actually  consummated.  Subject to the closing of
the Restaurant Acquisition,  on the Effective Date, upon this Agreement becoming
effective,  the 1994  Employment  Agreement  shall terminate and have no further
force or effect and shall be replaced  and  superseded  for all purposes by this
Agreement.  If the  Restaurant  Acquisition  is not  consummated  for any reason
whatsoever,  or if the Asset Purchase Agreement is terminated in accordance with
the  provisions  thereof for any reason  whatsoever,  this  Agreement  shall not
become  effective  and shall be null and void and shall have no force and effect
to the same extent as if this Agreement had never been executed and delivered by
the  parties  hereto and there shall be no  liability  under or by reason of the
terms  hereof  on the  part of  Americana  or any of its  affiliates,  officers,
directors, employees, agents, successors or assigns, or of the Employee, without
limitation of any other rights any of them may have. If this  Agreement does not
become effective in accordance with the preceding sentence,  the 1994 Employment
Agreement  shall  remain in effect in  accordance  with its  presently  existing

         3.  Settlement with Employee.  As a material  inducement to Employee to
enter into this Agreement and in consideration for the release given by Employee
in  paragraph  4 of this  Agreement,  Americana  and the  Employee  agree to the

                  (a) On the Effective  Date,  Americana  will pay to Employee a
one-time,  lump sum payment of One Hundred Thousand Dollars  ($100,000) less all
applicable taxes and withholdings;

                  (b)  Americana  will  continue to pay Employee his base salary
and fringe  benefits  through June 30, 1996, in accordance with the terms of the
1994 Employment  Agreement,  so long as Employee continues to perform the duties
and responsibilities set forth in Section 3(c) hereof, but will not be obligated
to pay  Employee  any bonus with  respect to the fiscal  year ending on or about
June 30, 1996; and


                   (c) Employee  agrees that between the Effective Date and June
30, 1996,  Employee's duties and responsibilities will be limited to such of the
following duties and  responsibilities as Americana from time to time may in its
discretion request Employee to perform:  (i) managing and overseeing all aspects
of the pre-opening and opening of the Champps Americana  restaurant in Columbus,
Ohio, by devoting  thereto such time and effort,  both on-site and off-site,  as
Employee has in the past devoted to the  pre-opening and opening by Americana of
other similar  restaurants,  including,  most  recently,  the Champps  Americana
restaurant  located in Cleveland,  Ohio,  (ii)  overseeing  the  management  and
operations of the Champps Americana  restaurants located in Cleveland,  Ohio and
Richfield,   Minnesota  during  this  transition  period  (consistent  with  the
understanding  the Employee will after the Effective Date  primarily  manage the
Restaurant on behalf of New Brighton  Ventures) and (iii)  performing such other
services  in a  senior  management  capacity  as may be  mutually  agreed  to by
Americana and  Employee.  After June 30, 1996,  Employee  agrees to make himself
available as an  independent  consultant to render such services at  Americana's
request,  in which case Americana shall compensate  Employee for such consulting
services  at a rate of $500 per day plus  reasonable  out-of-pocket,  travel and
lodging expenses. Any such consulting requested by Americana shall not be deemed
to  constitute  employment  by Americana of Employee,  who shall at all times be
construed to be an independent  contractor.  Employee shall not hold himself out
as a partner,  employee or agent of Americana,  or incur,  assume or create,  in
writing or otherwise,  any warranty,  liability or other obligation of any kind,
express or implied, in the name of or on behalf of Americana.

         4. General Release of Claims by Employee.  As a material  inducement to
Americana to enter into this Agreement and in consideration for the payments and
benefits to be provided by  Americana  to Employee as outlined in  paragraph  3,
Employee hereby irrevocably and  unconditionally  releases,  acquits and forever
discharges Americana,  and each of its current and former owners,  stockholders,
predecessors,  successors,  assigns,  agents,  directors,  officers,  employees,
representatives, attorneys, divisions, subsidiaries, whether wholly or partially
owned,  and  affiliates  (and current and former  agents,  directors,  officers,
employees,  representatives  and attorneys of such divisions,  subsidiaries  and
affiliates), and all persons acting by, through, under or in concert with any of
them  (collectively  "Releasees"),  or any of them,  from  any and all  charges,
complaints,    claims,   liabilities,    obligations,    promises,   agreements,
controversies,  damages,  actions,  causes of action,  suits,  rights,  demands,
costs, losses, debts and expenses (including  attorneys' fees and costs actually
incurred),  of any  nature  whatsoever,  known or  unknown,  including,  without
limitation, any claim under the Age Discrimination in Employment Act, as amended
("Claim" or "Claims"), which Employee now has, owns or holds, or claims to have,
own or hold or which  Employee at any time  heretofore  had,  owned or held,  or
claimed to have, own or hold against each or any of the Releasees.

         5. Non-Competition. In view of the fact that Employee, as a co-founder,
shareholder,  director and officer of Americana,  has had access to confidential
and proprietary information relating to Americana,  and as a material inducement
to and a condition precedent to Americana's  agreement to compensate Employee as
provided herein and to sell to New Brighton Ventures the Restaurant  pursuant to
the Asset Purchase Agreement,  in order to preserve the goodwill associated with
the business of Americana,  Employee hereby agrees to the following restrictions
on his activities:


                   (a)  The  Employee  hereby  agrees  that  during  the  period
commencing on the Effective Date and ending on the date which is three (3) years
after the Effective  Date, he will not, other than as provided in paragraph 5(b)
hereof,   without  the  express  written  consent  of  Americana,   directly  or
indirectly,  anywhere in the geographic  area set forth in paragraph 5(c) below,
engage or participate in any activity, invest in or otherwise assist (whether as
owner, part-owner,  shareholder,  partner, director, officer, trustee, employee,
agent or consultant,  or in any other capacity) any business organization (other
than  Americana  pursuant  to the  terms of this  Agreement)  whose  activities,
products or services are in the Designated  Industry (as defined below);  except
that the Employee may make passive  investments in a competitive  enterprise the
shares of which are publicly traded if such investment constitutes less than one
(1) percent of the equity of such enterprise.  For purposes of this paragraph 5,
the term  "Designated  Industry"  shall mean the business of owning,  licensing,
franchising,  operating or otherwise participating in the ownership or operation
of one or more  restaurants  that  Americana  is able to show are  substantially
similar in trade dress and concept to "Champps Americana"  restaurants,  as such
trade  dress and  concept is either  incorporated  as of the  Effective  Date in
restaurants  owned and  operated  or being  developed  by  Americana  or Champps
Entertainment,  Inc. or  articulated  in plans,  designs or  proposals  drawn or
formulated prior to the Effective Date, but is not intended to cover all "casual
dining" or sports-themed  concepts.  Without implied  limitation,  the foregoing
covenant shall include:  (i) until March 1, 1997, not hiring for or on behalf of
Employee or any such business  organization any officer or employee of Americana
or any of its affiliates, except that Employee or an affiliate of Employee shall
be  permitted  to employ (A) all staff  currently  employed by  Americana in the
operation of the Restaurant ("Restaurant  Personnel") and (B) Mitchel J. Wachman
after the later of (x) June 30, 1996 or (y) such date on which  Employee  ceases
to be an employee of Americana;  and (ii) not soliciting for hire by Employee or
any such  business  organization  any officer or employee of Americana or any of
its  affiliates  and not  encouraging  for or on behalf of  Employee or any such
business organization any officer, employee, licensee,  franchisee,  supplier or
other service  provider to terminate his or her  relationship  with Americana or
any of its affiliates except as permitted by clause (B) above. As of the date of
this Agreement, other than with respect to Americana or its affiliates, Employee
is not  performing any consulting or other duties for, and is not a party to any
similar  agreement with, any business or venture competing with Americana or any
of its affiliates.

                  (b) Notwithstanding anything to the contrary contained herein,
nothing  herein  shall  restrict,  limit or impair in any manner the  ability or
right of Employee to engage in the following activities:

(i)  Employee  may,  directly  or  through  New  Brighton  Ventures  or  another
     affiliate,  manage or provide  consulting  services to other  licensees  or
     franchisees  of Americana  with respect to Champps  Americana  restaurants,
     including the licensee for the Milwaukee,  Wisconsin Champps restaurant, at
     their  request,  provided  that  such  services  comply  with the terms and
     conditions of the license or franchise  agreement in effect with respect to
     such location; and

(ii) Employee  may own and  operate,  through New  Brighton  Ventures or another
     entity owned or  controlled by him, the  Restaurant in accordance  with the
     Sub-License  Agreement to be dated as of the Effective  Date by and between
     Americana, as sublicensor, and New Brighton Ventures, as sublicensee.


                   (c) The  provisions  of this  paragraph  5 shall apply in the
following geographic areas:

(i)  all states in which  Americana or any of its  affiliates is, as of the date
     hereof, conducting any business activities;

(ii) all states in which Americana or any of its affiliates commences conducting
     business activities during the term of this Agreement; and

(iii) the United States of America.

                   (d) The parties acknowledge that the time, scope,  geographic
area and other provisions of this paragraph 5 have been specifically  negotiated
by sophisticated  commercial  parties and agree that (i) all such provisions are
reasonable  under the  circumstances,  (ii) all such  provisions are given as an
integral and essential part of the  transactions  contemplated  hereby and (iii)
but for the covenants of the Employee  contained in this  paragraph 5, Americana
would neither enter into this  Agreement  nor the Asset  Purchase  Agreement nor
consummate the  transactions  contemplated  hereby or thereby.  The Employee has
independently  consulted  with his counsel and has been  advised in all respects
concerning the reasonableness  and propriety of the covenants  contained herein,
with  specific  regard  to  the  businesses   conducted  by  Americana  and  its

                   (e) It is specifically  understood and agreed that any breach
of the provisions of this paragraph 5 by the Employee will result in irreparable
injury to Americana and its affiliates,  that the remedy at law alone will be an
inadequate  remedy for such breach and that,  in addition to any other remedy it
may have,  Americana  and its  affiliates  shall be  entitled  to seek  specific
performance  of this  paragraph 5 by the  Employee  through such  temporary  and
permanent  injunctive  relief as a court of competent  jurisdiction may award or
decree  irrespective  of  whether  Americana  may be  entitled  to  compensatory
damages.  The  parties  hereto  agree that the  liability  of the  Employee  for
breaches  of the  provisions  of this  paragraph  5 shall not be  limited to the
amount of the payment  received by the Employee  pursuant to paragraph 3 of this
Agreement. In the event that any covenant contained in this paragraph 5 shall be
determined by any court of competent  jurisdiction to be unenforceable by reason
of its  extending  for too great a period of time or over too great a geographic
area or by reason of its being too extensive in any other  respect,  it shall be
interpreted  to extend only over the maximum  period of time for which it may be
enforceable  and/or  over  the  maximum  geographic  area as to  which it may be
enforceable  and/or to the maximum  extent in all other  respects as to which it
may be enforceable,  all as determined by such court in such action. In any such
action brought to enforce the Agreement,  the prevailing  party shall be awarded
reasonable  attorneys'  fees  and  costs  and  expenses  incurred  therein.  The
existence  of any claim or cause of action  which the  Employee may have against
Americana or any of its affiliates under this paragraph 5 shall not constitute a
defense or bar to the enforcement of any of the provisions of this Agreement and
shall be pursued through separate court action by the Employee.


         6.  Confidentiality  of  Agreement.  Employee  agrees  that all matters
relating to the existence and content of this  Agreement  are  confidential  and
agrees that he shall not disclose  such  matters to any person or entity  except
his  counsel,  financial  advisors  and  immediate  family,  but  only if  those
individuals agree to keep such matters  confidential;  provided,  however,  that
Employee may disclose this agreement in connection with good faith  negotiations
with prospective employers, clients or business associates who agree to keep all
such  matters  so  disclosed  confidential  and  may,  upon  written  notice  to
Americana,  disclose this Agreement to the extent  required by applicable law or

         7. Non-Disparagement.  Employee agrees not to make any statements which
disparage  Americana or any of its  affiliates  or their  respective  employees,
officers,  directors,  stockholders,  products or services.  Americana agrees to
undertake good faith efforts to prevent its stockholders, directors, officers or
employees who are informed of this Agreement  from making any  statements  which
disparage Employee.

         8. Confidential  Information.  Employee  acknowledges that by virtue of
his past employment with Americana, and by virtue of any services to be rendered
hereunder, he has had and will have access to confidential information and trade
secrets.  Employee  agrees not to  reproduce  or disclose to any other person or
entity or use for his own  benefit  or for the  benefit  of any other  person or
entity any such confidential information or trade secrets of Americana or any of
its affiliates, except as is necessary for compliance with paragraph 3(c) and as
is appropriate to allow Employee to conduct the activities  that he is permitted
to conduct  pursuant to  paragraph  5(b)  hereof,  to the extant  that  Employee
complies  with the terms and  conditions  of this  Agreement.  Employee  further
acknowledges  that such  information  will be entrusted to him by Americana  and
that Employee will take all steps  necessary to protect the  confidentiality  of
such  information.  The term  "confidential  information"  includes,  but is not
limited to, financial  information,  business plans, customer lists,  restaurant
design information or concepts, advertising concepts, recipes, matters which are
subject to trademark or copyright protection,  trade secrets, marketing or sales
information,  price  and  cost  information,  information  regarding  suppliers,
personnel information,  prospects and opportunities which have been discussed or
considered  by  Americana  or  any of  its  affiliates,  except  that  the  term
"confidential  information"  does not  include  any  information  that is common
knowledge in the restaurant  industry and is in the public domain (such as basic
restaurant  business  practices and skills which Employee  acquired prior to his
association  with  Americana  and  its   predecessors   and  possesses   without
infringement  upon any  intellectual  property or similar rights of Americana or
any of its affiliates), other than information that has become public on account
of Employee's failure to comply with the provisions of this Agreement.  Employee
agrees to execute any  documents  reasonably  necessary to protect the rights or
interests of Americana in confidential information.


         9.  Litigation  Cooperation.  Employee hereby agrees to cooperate fully
with  Americana  in the defense or  prosecution  of any claims or actions now in
existence  or which may be brought  or  threatened  in the future  against or on
behalf of Americana  which relate to events that  transpired  while Employee was
employed by Americana.  Employee's  full  cooperation  in  connection  with such
claims or actions shall include,  but not be limited to, his being  available to
meet with  counsel to prepare for trial or  discovery,  to assist in  connection
with any  audit,  inspection,  proceeding  or  inquiry,  to act as a witness  in
connection  with  litigation  affecting  Americana  and,  at  the  direction  of
Americana,  to  cooperate  with any auditor or  governmental  agency.  Americana
agrees that it will pay Employee for any expenses he  reasonably  incurs and for
the reasonable value of his time spent in connection with such cooperation.

         10.  Non-Cooperation.  Employee  agrees  that he shall not  voluntarily
provide information to or otherwise cooperate with any individual,  corporation,
firm,  partnership,  or other entity who is contemplating or pursuing litigation
against  Americana and he shall not  otherwise  voluntarily  participate  in any
threatened  or  pending  litigation  against  Americana,  other  than any action
brought by Employee to enforce this Agreement or to construe its terms.

         11. Indemnification.

                   (a) As a further  inducement  to Americana to enter into this
Agreement,  Employee  hereby  agrees to  indemnify  and hold each and all of the
Releasees  harmless from and against any and all loss, cost, damage, or expense,
including,  without limitation,  attorneys' fees incurred by Releasees or any of
them  arising out of any breach of this  Agreement  by  Employee.  In  addition,
Employee  recognizes that Americana would suffer irreparable injury in the event
he were to breach any of his  obligations  under this  Agreement and agrees that
Americana will have the right to seek injunctive  relief to enforce the terms of
this Agreement.

                   (b)  Americana  hereby  agrees to indemnify and hold Employee
harmless  from and against loss,  cost,  damage or expense,  including,  without
limitation,  attorneys'  fees  incurred by  Employee,  arising out of actions or
omissions  of  Employee  while  employed  by  Americana  to the extent that such
indemnification  would be  provided  by  Americana  in the  ordinary  course  of
business to other employees  similarly  situated with respect to similar actions
or omissions.

         12. Non-Admission.  This Agreement shall not in any way be construed as
an admission by Americana of any liability or any act of  wrongdoing  whatsoever
by Americana against Employee and Americana specifically disclaims any liability
or  wrongdoing  whatsoever  against  Employee or any other person on the part of
itself, its employees and its agents.


         13. Advice of Counsel.  Employee represents and agrees that he has been
advised to discuss all aspects of this Agreement with his attorney,  that he has
carefully read and fully understands all of the provisions of this Agreement and
that he is voluntarily entering into this Agreement.

         14.  Attorneys'  Fees.  Each party agrees that they will bear their own
costs and attorneys' fees in connection with this Agreement.

         15.  No  Transfer.  Employee  represents  that  he has  not  heretofore
assigned or  transferred,  or purported to assign or transfer,  to any person or
entity,  any Claim  against the  Releasees  or any  portion  thereof or interest

         16. No Reliance. Employee represents and acknowledges that in executing
this  Agreement he does not rely and has not relied upon any  representation  or
statement  made  by any of the  Releasees  or by any of the  Releasees'  agents,
representatives or attorneys with regard to the subject matter,  basis or effect
of this  Agreement,  other than the  promises and  representations  made in this

         17. Binding Nature of Agreement.  This Agreement  shall be binding upon
each of the  parties  and upon  their  heirs,  administrators,  representatives,
executors,  successors and assigns, and shall inure to the benefit of each party
and to their heirs, administrators,  representatives, executors, successors, and

         18.  Governing  Law.  This  Agreement  shall be  deemed  to be made and
entered  into  in  the  State  of  Minnesota,  and  shall  in  all  respects  be
interpreted, enforced and governed under the laws of said State. The language of
all  parts  of this  Agreement  shall  in all  cases  be  construed  as a whole,
according  to its fair  meaning,  and not  strictly  for or  against  any of the

         19. Severability. Should any provision of this Agreement be declared or
be  determined  by any court to be  illegal  or  invalid,  the  validity  of the
remaining  parts,  terms, or provisions  shall not be affected  thereby and said
illegal or invalid part,  term, or provision shall be deemed not to be a part of
this Agreement.

         20. Modification of Agreement.  This Agreement may be amended, revoked,
changed,  or modified only upon a written agreement executed by both parties. No
waiver of any provision of this  Agreement will be valid unless it is in writing
and signed by the party against whom such waiver is charged.

         21. Entire  Agreement.  This Agreement sets forth the entire  agreement
between the parties hereto, and fully supersedes any and all prior agreements or
understandings  between  the parties  hereto  pertaining  to the subject  matter


         22. Notices.  All notices,  requests,  demands and other communications
hereunder  shall be deemed to have been duly given if delivered in person or via
facsimile  (promptly  followed by hard copy confirmation) or mailed by certified
or registered mail, postage prepaid, or by express courier service,  service fee
prepaid,  to the addresses as specified  below or to such other address of which
any party may notify the other  parties as  provided  herein.  Notices  shall be
effective as of the date of such delivery or mailing.

To Americana:                                 With a copy to:

One Corporate Place                           Goodwin, Procter & Hoar LLP
55 Ferncroft Road                             Exchange Place
Danvers, MA  01923-4001                       Boston, MA  02109
Attn:    Charles W. Redepenning, Jr., Esq.    Attn:    Ettore A. Santucci, P.C.

To Mr. Steven J. Wagenheim:                   With a copy to:

245 Kentucky Avenue North                     Briggs and Morgan, P.A.
Golden Valley, MN  55427                      2400 IDS Center
                                              Minneapolis, MN  55402
                                              Attn:    Avron L. Gordon, Esq.

         23. Counterparts.  This Agreement may be executed in counterparts, each
of which shall be deemed to be an original  and all of which  together  shall be
deemed to be one and the same instrument.


         IN  WITNESS   WHEREOF,   the  parties  have  executed  this  Severance,
Non-Competition  and  Confidentiality  Agreement  as of the date first set forth

                             /s/ Steven J. Wagenheim
                             Steven J. Wagenheim

         Then personally  appeared before me Steven J. Wagenheim and stated that
the  execution  of the within  Severance,  Non-Competition  and  Confidentiality
Agreement was his free act and deed.

                             /s/ Jennifer P. Christman
                             Notary Public
                             My commission expires:  January 21, 2000

                             AMERICANA DINING CORP.

                             By: /s/ Charles W. Redepenning, Jr.
                             Name:     Charles W. Redepenning, Jr.
                             Title:    Senior Vice President
                                       and Secretary

         Then  appeared  before me Charles  W.  Redepenning,  Jr. for  Americana
Dining Corp. and stated that he executed the within  Severance,  Non-Competition
and  Confidentiality  Agreement  in his  capacity as Senior Vice  President  and
Secretary for Americana  Dining Corp.,  and that  execution of this document was
within his authority.

                             /s/ Ettore Santucci
                             Notary Public
                             My commission expires: Dec.21, 2001