Severance Agreement and General Release - Quality Dining Inc. and Michael J. Wargo
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release ("Agreement") is entered into
this 1st day of October,1999 between Michael J. Wargo ("Employee") and Quality
Dining, Inc. and all of its subsidiaries, parent, affiliates, directors,
officers, employee and agents (collectively "Employer").
WHEREAS, Employee is currently employed by Employer;
WHEREAS, Employee and Employer have agreed to terminate the existing
employment relationship; and
WHEREAS, Employee and Employer desire to resolve any differences and disputes
now pending or which may arise in the future with respect to Employee's
employment and the termination thereof.
THEREFORE, Employee and Employer acknowledge and voluntarily agree as
follows:
1. Employee's termination of employment with Employer will be effective at
the time of Employer's normal close of business on October 1, 1999 (the
"Severance Date").
2. Employee acknowledges that the Employer does not have severance benefits
or a severance program, plan or policy for employees separated from
employment. Employee understands and agrees that he will not receive
severance benefits unless he signs this Severance Agreement and General
Release. However, in consideration of Employee's promises set forth
below:
a) Employer will pay Employee severance pay in the total amount of
Thirty Thousand Two Hundred Eighty-eight and 52/100 Dollars
($30,288.52), payable in the form of salary continuation through
December 31, 1999 in accordance with Employer's normal payroll
practices; and
b) Employer will continue to provide coverage to Employee under its
existing group health, vision and dental plans on the same terms as
existed on the Severance Date; and
c) Employee may continue to make deferrals into the Company's Non-
Qualified Deferred Compensation Plan through December 31, 1999 but
the Company will not make any "matches" in respect of any deferrals
subsequent to the Severance Date.
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Employee agrees that he is not entitled to and shall not receive any
compensation for any sick days, vacation days, personal days, bonus or
otherwise, except as expressly provided in the preceding sub-paragraphs
(a), (b) and (c).
3. Employee understands that he may revoke this Severance Agreement and
General Release for a period of seven (7) days following the date of its
execution. Any revocation within this period should be submitted in
writing and state, "I hereby revoke my agreement to the Severance
Agreement and General Release." The revocation must be personally
delivered, or mailed and postmarked, within seven (7) days of execution
of this Severance Agreement and General Release. This Severance Agreement
and General Release shall not become effective or enforceable until the
revocation period has expired.
4. Employee agrees not to disparage Employer or its subsidiaries,
affiliates, officers, directors, shareholders, employees, agents or
services to any third party, either orally or in writing.
5. In consideration of the mutual agreements and covenants set forth herein,
the receipt and sufficiency of which Employee hereby acknowledges,
Employee and his heirs, executors, administrators and assigns hereby
voluntarily, completely, unconditionally and irrevocably discharges and
releases Employer, its subsidiaries, parent, affiliates, officers,
directors, employees, agents, predecessors, employee benefit plans and
their fiduciaries, and other representatives of Employer, and their
successors and assigns (the "Released Parties"), from any and all claims,
demands, causes of action, suits, charges, violation and/or liability
whatsoever, known or unknown (including attorneys' fees, interest,
expenses and costs actually incurred) involving any matter arising out of
or in any way related, directly or indirectly, to Employee's employment
with Employer or the termination thereof. The parties agree and
acknowledge that the claims and actions released herein include, but are
not limited to, any claim or action based upon any common law tort
action, wrongful discharge, breach of contract and/or employment
discrimination on the basis of race, color, sex, religion, national
origin, age, disability, or any other basis under Title VII of the Civil
Rights Act, Americans With Disabilities Act, Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Worker
Adjustment Retraining and Notification Act, the Employee Retirement
Income Security Act, the Fair Labor Standards Act, and Family and Medical
Leave Act, all as amended, or their state or local counterparts, or any
claim or action under any other federal, state, or local law, rule, or
regulation.
6. Employee covenants and agrees that for a period of five (5) years from
and after the Severance Date, Employee will not, directly or indirectly
(a) induce or influence or attempt to induce or influence, any person who
is an employee of the Company (or who had been an employee of the Company
at any time during the preceding 12
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months) to terminate their employment with the Company or to accept
employment with another Company, nor (b) aid, assist or abet any other
person, firm or corporation in any of the activities prohibited in the
immediately preceding clause (a).
7. On or before the Severance Date, Employee agrees to return to Employer
all of Employer's property in Employee's possession or control,
including, but not limited to, Employer documents, materials, computer
disks and other records.
8. Employee warrants and agrees not to disclose any confidential or
proprietary information concerning Employer which was acquired during the
course of Employee's employment to any person, firm, corporation,
association or other entity.
9. The parties agree that the terms of this Agreement will remain
confidential and will not be disclosed by Employee to any persons other
than Employee's counsel, accountant and members of Employee's immediate
family.
10. Employer will not contest Employee's application for unemployment
compensation benefits, provided Employee does not make application for
such unemployment compensation benefits before the end of the severance
period.
11. Employee understands that this Severance Agreement and General Release
does not waive or release any rights or claims that Employee may have
under the Age Discrimination in Employment Act of 1967 which arise and
occur after the date Employee executes this Severance Agreement and
General Release.
12. Employee agrees and understands that if this Agreement is ever found to
be invalid or unenforceable (in whole or in part) as to any particular
type of claim or charge or as to any particular circumstances, it shall
remain fully valid and enforceable as to all other claims, charges and
circumstances. As to any actions, claims, or charges that would not be
released because of the revocation, invalidity, or unenforceability of
this Agreement, Employee agrees to return the severance payment described
above, with legal interest, as a prerequisite to asserting or bringing
any such claims, charges or actions.
13. Employee agrees that nothing in this Agreement is or shall be construed
as an admission by Employer of any breach of any agreement or law or any
intentional or unintentional wrongdoing of any nature. Employee agrees
and acknowledges that Employee has not relied upon any representations of
Employer except as set forth in this Agreement.
14. The parties agree that this Agreement shall be governed by and enforced
in accordance with the laws of the State of Indiana and all disputes
regarding this Agreement shall be brought in the State of Indiana.
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15. By signing this Agreement, Employee further acknowledges and agrees:
(a.) THAT EMPLOYEE HAS READ IT;
(b.) THAT THIS AGREEMENT IS BEING ENTERED INTO FREELY AND VOLUNTARILY;
(c.) THAT EMPLOYEE UNDERSTANDS THE AGREEMENT AND KNOWS THAT HE IS GIVING
UP RIGHTS INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF
THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE EQUAL PAY ACT OF
1963, AND THE AMERICANS WITH DISABILITIES ACT OF 1990;
(d.) THAT EMPLOYEE CONSENTS TO EVERYTHING IN IT;
(e.) THAT EMPLOYEE HAS BEEN ADVISED AND HAS BEEN GIVEN THE OPPORTUNITY
TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT;
(f.) THAT EMPLOYEE HAS BEEN GIVEN WHAT EMPLOYEE CONSIDERS TO BE A
SUFFICIENT PERIOD OF TIME TO REVIEW AND CONSIDER THIS SEVERANCE
AGREEMENT AND GENERAL RELEASE BEFORE SIGNING IT; AND EMPLOYEE
UNDERSTANDS THAT FOR A PERIOD OF SEVEN (7) DAYS AFTER SIGNING IT,
EMPLOYEE MAY REVOKE EMPLOYEE'S ACCEPTANCE OF IT. IF EMPLOYEE
REVOKES THIS AGREEMENT WITHIN THE SEVEN (7) DAY PERIOD, IT SHALL
NOT BE EFFECTIVE OR ENFORCEABLE.
(g.) THAT THE PROVISIONS OF THIS SEVERANCE AGREEMENT AND GENERAL RELEASE
MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF
BOTH EMPLOYEE AND EMPLOYER.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
Employee: Employer:
Michael J. Wargo Quality Dining, Inc.
/s/ Michael J. Wargo By: /s/ John C. Firth
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Employee Signature John C. Firth
Executive Vice President &
General Council