Exhibit 10.1
SEPARATION AND GENERAL RELEASE
AGREEMENT
This Separation and General
Release Agreement (“Agreement”) is entered into by and
between Michael Cortino (“Cortino”) and Papa
John’s USA, Inc. , its parent, Papa John’s
International, Inc. and all of their subsidiary and affiliated
corporations, as well as their respective directors, officers,
successors, shareholders, assigns, attorneys, agents,
representatives and employees (all of which, are hereafter
collectively referred to as “ Papa John’s
”).
RECITALS:
A.
Cortino is currently employed by Papa John’s in the capacity
of Senior Vice President, Domestic Operations.
B.
The parties have mutually agreed to separate his employment from
Papa John’s, effective January 28, 2007 (“Separation
Date”).
AGREEMENT:
NOW, THEREFORE,
in consideration of the mutual
promises contained in this Agreement, Cortino and Papa John’s
agree as follows:
1.
As adequate and good consideration, Company agrees to provide
Cortino with the following:
a.
A bonus payment for 2006 performance in the gross amount of Two
Hundred Thirty-three Thousand Four Hundred Thirty-seven Dollars and
Twenty-two Cents ($233,437.22), less all applicable withholdings.
This payment shall be paid in a lump sum within 3 business days
after the revocation period set forth in Paragraph 5.d. has
expired.
b.
An additional payment in the gross amount of One Hundred Thirteen
Thousand, Two Hundred Thirty-three Dollars and Thirty-four Cents
($113,233.34), less all applicable withholdings. This payment shall
be paid in a lump sum within 3 business days after the revocation
period set forth in Paragraph 5.d. has expired.
c.
Should Cortino elect COBRA continuation coverage for any family
health or dental benefits provided by Papa John’s, Papa
John’s will pay Cortino’s COBRA premiums for a period
of twelve (12) months, through January 2008. Papa John’s will
pay any COBRA premiums directly to the appropriate
payee.
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d.
Papa John’s will review, consider and decide whether Cortino
may re-enter, or directly or indirectly have any involvement in the
Papa John’s system in the future, whether as a franchisee,
operating partner, franchisee employee, franchisee agent, or
representative, or work for or assist any entity representing the
interests of franchisees, whether as an employee, consultant, agent
or otherwise. Cortino agrees that such decision is in the sole
discretion and authority of Papa John’s and agrees to abide
by its decision, which shall not be subject to review.
2.
Adequate Consideration . Cortino agrees the
consideration he is receiving hereunder is fair and adequate to
warrant enforcement of the terms and conditions contained in this
Agreement including, without limitation, the General Release set
forth in Paragraph 4 and the specific release set forth in
Paragraphs 5 and 10, and the non-competition and non-solicitation
provisions set forth in Paragraphs 6 and 7 therein.
3.
Retention of Benefits . All benefits cease effective
as of the Separation Date set forth above; provided, however, any
amounts held in trust in the Papa John’s International, Inc.
Deferred Compensation Plan and the Papa John’s International,
Inc. 401(k) Plan for the benefit of Cortino shall continue to be
held in trust for Cortino within the parameters of the existing
plan. In addition, any vested stock options held by Cortino shall
remain exercisable pursuant to the terms of the Papa John’s
International, Inc. 1999 Team Member Stock Ownership Plan, under
which such options were issued. It is expressly understood and
agreed that Papa John’s will not make any contributions to
the 401(k) Plan on Cortino’s behalf following his Separation
Date. Cortino will be eligible for COBRA benefits to the extent
required by law.
4.
General Release . In exchange for the specific
consideration received in Paragraph 1.a., l.b., and 1.c. above,
which Cortino specifically acknowledges and agrees he is not
otherwise entitled to receive, Cortino fully and forever releases,
acquits, holds harmless and discharges Papa John’s from
liability for any and all claims, demands, actions and causes of
action, charges, obligations, costs or expenses of any nature which
Cortino now has or may have against them, and any other event,
encounter, conversation, action, contact or communication arising
out of Cortino’s employment with Papa John’s. Any and
all facts, circumstances and events arising out of Cortino’s
employment with Papa John’s occurring prior to the signing of
this Agreement cannot be used by Cortino to impose liability on
Papa John’s in any future proceeding against Papa
John’s. This Release includes, but is not limited to, the
release of any and all claims or charges of discrimination filed,
or which could have been filed, against Papa John’s by
Cortino with the federal courts, Kentucky state courts, other state
courts, the Equal Employment Opportunity Commission, the United
States Department of Labor, the Kentucky Labor Cabinet, the
Kentucky Commission on Human Rights, or any other state or local
civil rights agency; claims or suits under the Fair Labor Standards
Act of 1938, 29 U.S.C. § 201 et seq. ; Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ;
the Civil Rights Act of 1991, P.L. 102-166; the Civil Rights Act of
1866, 42 U.S.C. § 1981; the National Labor Relations Act, as
amended, 29 U.S.C. § 151 et seq. ; the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. ; State of
Kentucky handicap/disability discrimination laws; the Family and
Medical Leave
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Act of 1993, 29 U.S.C. § 2601
et seq. ; State of Kentucky family and medical/parental
leave laws; the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq. ; The Federal Rehabilitation Act
of 1973, 29 U.S.C. § 701 et seq. ; State of Kentucky
civil/human rights law; State Kentucky equal opportunity laws;
State of Kentucky wage/hour laws; State of Kentucky workers’
compensation laws; the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621-634, as amended by the Older
Workers’ Benefit Protection Act, P.L. 101-433; and any other
claims of employment discrimination, retaliation, intentional
infliction of emotional distress, defamation, invasion of privacy,
tortious interference with contractual relations, wrongful
separation, outrage, promissory estoppel, claims or demands arising
under either express or implied contract, breach of contract, tort,
public policy, the common law, or any federal, state or local
statute, ordinance, regulation or constitutional provision, or
other liabilities, suits, union grievances, debts, claims for back
pay, front pay, compensatory or punitive damages, actual damages,
consequential damages, emotional distress, damages for humiliation
and embarrassment, contractual damages, injunctive relief,
severance pay, costs, reinstatement, attorneys’ fees,
commissions, bonuses, incentive compensation plans, vacation pay,
pension benefits or payment or reimbursement under any health
insurance or other employee benefit plan, insurance premiums or
other sums of money, grievances, expenses, demands, controversies
of every kind and description, whether liquidated or unliquidated,
known or unknown, contingent or otherwise and whether specifically
mentioned or not, that Cortino now has or has had or which may
exist or might be claimed to exist at or prior to the date of this
Agreement against Papa John’s. Cortino specifically waives
any claim or right to assert that any cause of action, alleged
cause of action/claim, charge or demand has been, through oversight
or error, intentionally or unintentionally, omitted from this
Agreement. Cortino specifically acknowledges that by signing this
Agreement, he will not receive, and is not entitled to receipt of,
any additional 401(k) benefit contributions, bonuses, or stock
option grants from Papa John’s, other than as set forth in
this Agreement.
5.
Specific Release Of Age Claims .
a.
Cortino agrees that in exchange for the consideration received from
Papa John’s described in Paragraphs 1 through 3 of this
Agreement (to which Cortino agrees he is not otherwise entitled),
that this Agreement constitutes a knowing and voluntary release and
waiver of all rights or claims Cortino may have against Papa
John’s including, but not limited to, all rights or claims
arising under the Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 621-634, as amended by the Older Workers’
Benefit Protection Act, P.L. 101-433 (“ADEA”),
including, but not limited to, all claims of age discrimination in
employment and all claims of retaliation in violation of the ADEA
and any state statute or local ordinance barring age
discrimination.
b.
Papa John’s and Cortino agree that, by entering into this
Agreement, Cortino does not waive rights or claims that may arise
after the date this Agreement is executed.
c.
Cortino represents and warrants that Papa John’s advised
Cortino in writing to consult with an attorney prior to executing
this Agreement and that Cortino in fact did
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have the opportunity to consult with
an attorney. Cortino further represents and warrants that Papa
John’s provided him a period of at least twenty-one (21) days
in which to consider this Agreement before executing this
Agreement.
d.
Papa John’s and Cortino agree that, for a period of seven (7)
days following the execution of this Agreement, Cortino has the
right to revoke this Agreement, and Papa John’s and Cortino
further agree that this Agreement shall not become effective or
enforceable until the revocation period of seven (7) days has
expired. Cortino agrees that he will submit written notice of any
revocation of this Agreement to Papa John’s General
Counsel.
e.
Cortino agr
