Exhibit 10.12
SEPARATION AGREEMENT AND GENERAL
RELEASE
THIS SEPARATION AGREEMENT AND
GENERAL RELEASE (this “Agreement”) is entered into as
of December 17, 2008 by and between PAUL MOTENKO (“
Executive ”) and BJ’S RESTAURANTS, INC., a
California corporation (the “ Company ”), with
respect to the following facts:
A. Executive is currently serving as
a director of the Company and is currently employed by the Company
pursuant to the terms of that certain Amended and Restated
Employment Agreement, dated as of June 27, 2005, between
Executive and the Company (the “ Employment Agreement
”).
B. Executive and the Company have
agreed that Executive’s employment with the Company and any
direct or indirect subsidiary thereof (collectively, “
Subsidiaries ”) will terminate effective as of
December 30, 2008 (the “ Termination Date
”), and that simultaneously with such termination, Executive
will resign and cease to serve as a director and officer of the
Company and its Subsidiaries.
C. The Company and Executive desire
to amicably compromise and finally settle and resolve all
controversies between them including, but not limited to any
differences or claims that might also arise out of the Employment
Agreement, Executive’s employment with the Company or any
Subsidiaries, executives position as a member of the Board of
Directors of the Company or any Subsidiaries, and Executive’s
termination or resignation as an employee, officer and/or director,
to bring these matters to a conclusion and to avoid incurring costs
and expenses which would be incident to the prosecution and defense
of claims arising from any disputed matters.
NOW, THEREFORE, in consideration for
the covenants and agreements contained herein, and other good and
valuable consideration, the parties hereto agree as
follows:
1. Termination and
Acknowledgment of Payment . Executive and the Company
hereby agree that Executive’s employment with the Company
shall terminate as of 5:00 p.m. (Pacific Time) on the Termination
Date. Subject to the provisions of Section 2.6 of this
Agreement, Executive hereby resigns as a director, officer and
manager of the Company and any Subsidiaries effective on the
Termination Date and the Company and the Subsidiaries hereby accept
such resignations. Except as otherwise specifically set forth in
this Agreement, the Company and the Subsidiaries shall have no
further obligations to Executive and all compensation and benefits
payable to him shall cease as of the Termination Date. Except for
accrued but unpaid amounts due Executive pursuant to the terms of
the Employment Agreement for periods up to and including the
Termination Date, and except as specifically contemplated by this
Agreement, Executive hereby acknowledges that he has been paid all
accrued compensation, wages, bonus or vacation pay, benefits and
other compensation owed to him by the Company and the Subsidiaries
or to which he may be entitled up to and through the Termination
Date and hereby releases the Company and the Subsidiaries of any
further obligations to pay any such amounts.
2. Termination Payments
and Other Consideration .
2.1 Termination
Payments . The Company shall cause to be paid to Executive
the gross sum of Three Hundred Forty-Nine Thousand Five Hundred
Ninety-Two Dollars ($349,592) which shall be paid in 26 equal
bi-weekly installments in accordance with the Company’s
payroll practices (the “ Termination Payments
”). The Termination Payments shall commence on the first
regular payroll date of the Company following the expiration of the
Revocation Period provided for in Section 21. The Company
shall deduct from such Termination Payments any and all applicable
state and federal withholdings.
2.2 Continuation of
Group Health Benefits . For a period of eighteen
(18) months following the Termination Date, the Company agrees
to reimburse Executive for the cost of premiums to maintain the
health insurance coverage currently in effect for Executive and his
dependents. Company and Executive agree that (i) the current
cost of such health insurance is $13,457 per annum, and
(ii) the Company’s reimbursement obligations shall
increase in the event that the cost of maintaining the existing
health insurance coverage is increased by the insurer, subject to a
maximum increase of fifteen percent (15%) during the eighteen
(18) months reimbursement period. Other than health insurance
reimbursement provided for above and except as may be required by
applicable law or the specific terms of this Agreement, following
the Termination Date, Executive shall be responsible for
maintaining and paying for his own health, life, disability and/or
other insurance benefits for himself and his dependents.
2.3 Options .
Executive and the Company acknowledge and agree that Exhibit
A attached hereto and incorporated herein by this reference
sets forth all outstanding options held by Executive or to which
Executive is entitled as of the Termination Date (the
“Options”). Notwithstanding anything to the contrary
contained in the Employment Agreement or the terms of the Options
themselves, the Company agrees that on the Termination Date, all
existing Options shall accelerate and vest in full and shall
continue to be exercisable until December 31, 2009.
2.4 Vacation .
Executive acknowledges and agrees that, as of the Termination Date,
he has no accrued vacation and, accordingly, will not receive any
payment for accrued but unpaid vacation on the Termination
Date.
2.5 Compliance with
Agreement . Except for the Company’s obligation to
provide directors and officers liability insurance coverage of
Executive in accordance with the provisions of Section 2.7 and
its obligations pursuant to Section 2.6, Executive
acknowledges and agrees that all payments and other benefits
provided to him under this Agreement are contingent upon his
compliance with all of the terms and conditions of this Agreement
in all material respects.
2.6 Permits and
Licenses . The Company and Executive acknowledge that it
may be impractical for Executive to be replaced on the Termination
Date as an officer, director or agent of the Company or its
Subsidiaries on certain governmental licenses or permits or on any
leases or guarantees with respect to which Executive may have any
obligation. Accordingly, the Company covenants and agrees that
immediately following the Termination Date, the Company shall use
commercially reasonable efforts to expedite the removal and release
of Executive from all such
-2-
licenses, permits, leases and guarantees and, at
all times following the execution of this Agreement, Executive
covenants and agrees to take all necessary steps reasonably
requested by the Company (including execution and delivery of any
necessary certificates or other documentation) to replace Executive
on any governmental licenses or permits (including any liquor
licenses) on which such Executive is listed personally or as an
officer, director or agent of the Company. The Company further
covenants and agrees that it shall, to the extent permitted by
applicable law, fully indemnify Executive for all costs, fees, and
any and all other claims and liabilities arising from any
governmental license or permit, guarantee or lease of any property
maintained for the benefit of the Company and which is in the name
of Executive.
2.7 Officers and Directors
Insurance . For a period of at least five (5) years
following the Termination Date, the Company shall maintain
directors and officers liability insurance in accordance with the
Company’s usual and customary practices, which policy shall
include customary coverage for Executive with respect to his
service on the Board of Directors and as an officer of the Company.
Notwithstanding anything to the contrary set forth herein, the
Company and Executive understand and agree that (i) the amount
and nature of such insurance coverage shall be as determined by the
Board of Directors of the Company, and (ii) the insurance
coverage afforded to Executive shall be no less than the coverage
maintained for the benefit of the Company’s continuing
executive officers and members of the Company’s Board of
Directors.
3. Return of Company
Property . Executive warrants and represents that he has or
will, within fifteen (15) business days of the Termination
Date, return to the Company all property of the Company and the
Subsidiaries in the possession, custody and/or control of
Executive, his spouse or any affiliate(s) thereof. Such property
shall include any written records or computer files containing
Confidential Information (and all copies thereof), as such term is
defined in Section 6.2 of this Agreement; provided, however,
that Executive may retain copies of correspondence authored or
addressed to Executive. Executive will, upon request by the
Company, certify his compliance with this Section 3 in
writing. The Company further covenants and agrees that on the
Termination Date, the Company shall use its commercially reasonable
efforts to cause Executive’s current cell phone number used
by Executive in connection with Company business to be transferred
to Executive; provided, however, that Executive shall be liable for
all charges associated with such cell phone number following the
Termination Date.
4. Release of
Claims .
4.1 Release by
Executive . As a material inducement to the Company to
enter into this Agreement and in consideration of the Termination
Payments and other valuable consideration, Executive does hereby
agree to and hereby does unconditionally and generally release and
fully and forever waive and discharges, on his own behalf and on
behalf of any of his dependents, heirs, affiliates, successors and
assigns, the Company, and its parent, subsidiary and affiliated
companies, partnerships, and each of their respective present or
former affiliates, subsidiaries, officers and directors,
shareholders, partners, employees, agents, attorneys, accountants
and representatives, and their respective successors and assigns
(collectively, the “ Company Released Parties ”)
from any and all rights, claims, actions, suits, demands, causes of
action, charges,
-3-
obligations, damages, breaches, attorneys’
fees, costs and liabilities of any nature whatsoever (collectively,
“claims”), whether or not now known, suspected or
claimed, which Executive now holds or has at any time heretofore
owned or held against the Company Released Parties including, but
not limited to, claims (a) arising out of his employment with
or service as director of the Company and/or his resignation or
termination therefrom, except as set forth in the last sentence of
this Section 4.1 or as otherwise specifically provided in this
Agreement, (b) except as specifically provided in this
Agreement, for compensation, severance payments, rights or benefits
due to him under any plan or arrangement with the Company or its
Subsidiaries, including the Employment Agreement, (c) that the
Company Released Parties or any of them discriminated against
Executive on the basis of his race, sex, religion, national origin,
handicap, ancestry, sexual orientation, mental or physical
disability, or age, (d) that the Company Released Parties
violated any promise or agreement either express or implied with
Executive, or that the Company has terminated him for any illegal
reason or in an illegal fashion, including specifically without
limiting the generality of the foregoing any claim under the
Employee Retirement Income Security Act, Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Worker Pay Act, the Fair Labor
Standards Act, or (e) for employment discrimination,
defamation, liable, interference with contract, business
relationships, or prospective economic advantage, emotional
distress, wrongful termination and, except as specifically provided
in this Agreement, wages, severance pay, deferred compensation,
stock options, bonus, sick leave, holiday pay, vacation pay, life
insurance, health and medical insurance, or any other fringe
benefit or commissions. Notwithstanding any of the foregoing,
nothing in this Agreement shall be deemed to constitute a release
or waiver of any claims that Executive or his affiliates may have
against any of the Company Released Parties (i) relating to or
arising out of any criminal or fraudulent actions by the Company
Released Parties, or (ii) for indemnification under the
California Corporations Code, the Company’s Articles of
Incorporation or Bylaws or any existing officer or director
liability or errors and omissions insurance policy.
4.2 Acknowledgment of
Executive . This
Agreement also is intended to waive all rights and claims, if any,
arising under the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 621 et seq. Executive acknowledges
that the consideration in the Agreement exceeds payment or
remuneration to which he is already entitled. Executive
acknowledges that he has been advised to consult with an attorney
prior to executing this Agreement. Executive acknowledges that he
has been given a reasonable period of time to consider this
Agreement and waives the twenty-one (21) day consideration
period of the Older Workers Benefit Protection Act. He fully
understands that, except as specifically provided in this Agreement
to the contrary, this Agreement constitutes a waiver of all rights
available under federal and state statutes, municipal charter and
common law with regard to any matter related to his employment and
his termination of employment with the Company.
4.3 Release by
Company . Company does hereby agree to and hereby does
unconditionally and generally release and fully and forever waive
and discharge, on its own behalf and on behalf of any of its
affiliates, successors and assigns, Executive and each of his
present or former affiliates, agents, attorneys, accountants and
representatives, and their respective successors and assigns
(collectively, the “ Executive Released Parties
”) from any and all claims,
-4-
whether or not now known, suspected or claimed,
which the Company now holds or have at any time heretofore owned or
held against the Executive Released Parties including, but not
limited to, claims arising out of his employment with and service
on the Board of Directors of the Company and/or his resignation or
termination therefrom, Notwithstanding the foregoing, nothing in
this Agreement shall be deemed to constitute a release or waiver of
any claims that the Company or his affiliates may have against any
of the Executive Released Parties (i) relating to or arising
out of any criminal or fraudulent actions by the Executive Released
Parties, or (ii) relating to or arising out of any actions or
circumstances with respect to which indemnification of Executive
would not be permitted under applicable law.
4.4 No Assignment of
Claims . Executive and the Company represent and warrant
that they have not heretofore assigned or transferred to any person
or entity of any kind any matter released herein. To the extent
that the release set forth in Section 4 of this Agreement runs
in favor of persons or entities not signatory hereto, this
Agreement is hereby declared to be made for each of their express
benefits and uses.
4.5 Waiver of Unknown
Claims . It is a further condition of the consideration
herein and is the intention of Executive and the Company in
executing this instrument that the same shall be effective as a bar
to each and every claim, demand, and cause of action hereinabove
specified and, in furtherance of this intention, Executive and the
Company hereby expressly waive any and all rights or benefits
conferred by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL
CODE and/or any similar rule of law adopted by st
