SEPARATION
AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release (hereinafter
“Agreement”) is made and entered into by and between
Frederick Wolfe (“Wolfe”) on the one hand, and Real Mex
Restaurants, Inc. and all of its subsidiaries, related entities and
affiliates (collectively referred to as “Real Mex”) on
the other hand.
A. Wolfe
has been employed by Real Mex as President and Chief Executive
Officer, and was a member of the Real Mex Board of
Directors.
B. Real
Mex and Wolfe entered into an Amended and Restated Executive
Employment Agreement (“Employment Agreement”) on or
about February 28, 2008.
C. Wolfe’s
employment with Real Mex terminated effective December 15,
2008, and Wolfe is entitled to benefits under the Employment
Agreement subject to his signing this Agreement.
D. Wolfe
and Real Mex have reached agreement on the terms and conditions of
the termination of his employment from Real Mex.
E. Wolfe
and Real Mex desire to settle fully and finally all differences
between them, including those arising in any way out of
Wolfe’s employment with Real Mex and the termination
thereof.
NOW,
THEREFORE, in consideration of the premises and promises herein
contained, IT IS AGREED AS FOLLOWS:
1. This
Agreement shall not in any way be construed as an admission by Real
Mex that it has acted wrongfully with respect to Wolfe or any other
person, or that Wolfe has any rights whatsoever against Real Mex,
its affiliates or any of their current or former partners, owners,
directors, officers, employees or agents, and Real Mex specifically
disclaims any liability to or wrongful acts against Wolfe or any
other person, on the part of itself, its divisions, affiliates,
related entities or any of its or their current or former partners,
owners, directors, officers, employees or agents.
2. Real
Mex and Wolfe agree that Wolfe’s employment at Real Mex
terminated effective December 15, 2008. Real Mex agrees to pay
Wolfe all compensation for services rendered and all accrued,
unused vacation pay through December 15, 2008. Wolfe further
agrees that his resignation from the Real Mex Board of Directors
was effective on December 15, 2008.
3. Subject
to Paragraphs 4 and 13 below, Real Mex will pay Wolfe his annual
salary of $473,000 for one year in biweekly installments on the
payment dates on which that salary normally would be paid, and will
commence on January 2, 2009. Checks will be mailed to
Wolfe’s home address of record, or through direct deposit, on
Real Mex’s normally scheduled paydays. For purposes of
applying the provisions of Internal Revenue Code Section 409A
to this Agreement, each separately identified amount to which the
Wolfe is entitled under this Agreement shall be treated as a
separate payment. In addition, to the extent permissible under
Section 409A, any series of installment payments under this
Agreement, including any payment pursuant to the Company’s
regular payroll practices, shall be treated as a right to a series
of separate payments.
4. All
employment benefits end on the termination date, except as stated
herein. Wolfe will become eligible for COBRA benefits on
December 16, 2008 and will be notified by the administrator.
Wolfe is entitled to elect and pay for COBRA coverage whether or
not he signs this agreement. However, as additional consideration
for Wolfe signing this agreement, Real Mex will continue to pay its
portion of the major medical, executive medical and dental
premiums, which Wolfe has in effect, for a period of 12 months
provided he elects to continue his health insurance through COBRA.
Wolfe’s contributions will continue through standard payroll
deductions. Should Wolfe elect to continue medical and dental
coverage for the remainder of the COBRA period he must do so at his
own expense. Participation in the Company’s deferred
compensation plan and all supplemental plans (including but not
limited to life insurance, disability, auto allowance/expenses)
will be terminated on December 16, 2008.
2
5. In
exchange for Real Mex waiving its rights to enforce the provisions
of Section 2.7(a) of the Employment Agreement, Wolfe agrees
that (a) the salary continuation payments referenced in
Paragraph 3 above shall be reduced by the amount of salary
earned by Wolfe in any other job during the one-year severance
period, and (b) the COBRA contribution payments referenced in
Paragraph 4 above will cease if Wolfe obtains group health
insurance through another employer during the one-year severance
period. Wolfe agrees to notify Real Mex as soon as reasonably
possible of any new employment he obtains within the one-year
severance period.
6. Wolfe
represents and agrees that he will adhere to the restrictions on
soliciting employees set forth in Section 2.7(b) of the
Employment Agreement. Wolfe further represents that at no time
during his employment at Real Mex has he engaged in conduct
involving fraud, theft or embezzlement of any Real Mex
assets.
7. Wolfe
specifically acknowledges that he is entitled to no further
benefits or payments of any kind from Real Mex (including, but not
limited to, salary, accrued vacation, moving allowance, severance
pay and benefits) pursuant to the terms of the Employment
Agreement.
8. All
payments required to be made by Real Mex hereunder shall be subject
to any and all applicable withholdings, including any withholdings
for any related federal, state or local taxes. Wolfe acknowledges
that he shall be responsible for any and all income taxes or other
taxes incurred by him as a result of his receipt of any payments
from Real Mex pursuant to the terms of this Agreement.
9. Wolfe
agrees to make himself available by telephone upon reasonable
notice to assist Real Mex with respect to any ongoing matters or
projects and shall cooperate fully with such matters. Wolfe and
Real Mex’s officers and directors further agree that best
efforts will be made to avoid making any statements which will in
any way disparage, defame or hold the other (including Real
Mex’s current and former directors, officers and employees)
in a negative light.
3
10. Wolfe
acknowledges and agrees that he has returned to Real Mex all of its
property, documents, books, records, reports, contracts, lists,
computer disks (or other computer-generated files or data), or
copies thereof, created on any medium, prepared or obtained by him
or Real Mex in the course of or incident to Wolfe’s
employment with Real Mex. Real Mex acknowledges that it has
received from Wolfe the following: (a) laptop;
(b) blackberry; (c) Fob; and (d) keys.
11. Wolfe
acknowledges his continuing confidentiality obligations under
(a) Section 2.5 of the Employment Agreement, and
(b) any confidentiality agreement signed by him with respect
to Real Mex.
12. Wolfe
represents that he has not filed any complaints, charges or
lawsuits against Real Mex, or against (a) any current or
former officers, directors and employees of Real Mex, (b) any
current or former affiliate or r
|