Del Friscos Restaurant Group, Inc. Executive Severance Plan, effective as of June 7, 2019
DEL FRISCOS RESTAURANT GROUP
EXECUTIVE SEVERANCE PLAN
The purpose of the Plan is to enable the Company to offer certain protections to Participants if their employment or service with the Employer is terminated under the circumstances described herein.
The Plan shall apply to Participants employed by or providing services to an Employer on or after the Effective Date and shall not apply to Participants who terminated their employment or service with an Employer prior to the Effective Date.
Unless otherwise expressly provided in the Plan or unless otherwise agreed to in writing between the Company or an Affiliate and a Participant on or after the date hereof, Participants covered by the Plan shall not be eligible to participate in any other severance or termination plan, policy or practice of the Employer that would otherwise apply under the circumstances described herein. The Company intends that this Plan, with respect applicable Participants, qualify as and come within the various exceptions and exemptions under ERISA for an unfunded plan maintained primarily for a select group of management or highly compensated employees, and any ambiguities in this Plan shall be construed to effect that intent. This document shall constitute both the plan document and summary plan description and shall be distributed to Participants in this form. Capitalized terms and phrases used herein shall have the meanings ascribed thereto in Article I.
For purposes of the Plan, capitalized terms and phrases used herein shall have the meanings ascribed in this Article.
1.1 Accrued Obligations shall mean the Participants (a) Base Salary otherwise payable through the date of termination, (b) unreimbursed business expenses reimbursable under Employer policies then in effect, and (c) earned and accrued vacation pay, if applicable, to the extent not theretofore paid. The Employer shall pay the Participant the Accrued Obligations on the dates such amounts would have been payable under the Employers policies if the Participants employment had not terminated, but in no event more than sixty (60) days after Participants date of termination, or sooner if required by applicable law. The Participants benefits and rights under any of the Employers benefit plans shall be determined in accordance with the applicable provisions of such plans, as may be in effect at the Participants date of termination.
1.2 Affiliate shall mean (a) any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code, (b) any corporation, trade or business (including, without limitation, a partnership or limited liability company) which is directly or indirectly controlled 50% or more (whether by ownership of stock, assets or an equivalent ownership interest or voting interest) by the Company, or (c) any other entity which is designated as an Affiliate by the Board or the Committee.
1.3 Base Salary shall mean a Participants annual base compensation rate for services paid by the Employer to the Participant at the time immediately prior to the Participants termination of employment, as reflected in the Employers payroll records, without regard to any reduction giving rise to Good Reason. Base Salary shall not include commissions, bonuses, overtime pay, incentive compensation, benefits paid under any qualified plan, any group medical, dental or other welfare benefit plan, non-cash compensation or any other additional compensation, but shall include amounts reduced pursuant to a Participants salary reduction agreement under Section 125, 132(f)(4) or 401(k) of the Code, if any, or a nonqualified elective deferred compensation arrangement, if any, to the extent that in each such case the reduction is to base salary.
1.4 Beneficiary shall mean a person or entity that a Participant designates in writing to the Company to receive payments or benefits hereunder in the event of the Participants death. If no such person or entity is named or there is no surviving designated Beneficiary, such Participants Beneficiary shall be the Participants estate.
1.5 Board shall mean the Board of Directors of the Company.
1.6 Bonus shall mean the Participants annual target cash performance bonus opportunity relating to the fiscal year in which a Change in Control shall occur, as determined under an agreement between the Participant and the Employer, or under any written bonus plan, program or arrangement approved by the Board or the Committee, without regard to any reduction giving rise to Good Reason. Bonus shall not include any other bonus to be paid upon completion of any specified project or upon the occurrence of a specified event, including, without limitation, a Change in Control.
1.7 Cause shall mean, unless otherwise set forth in an employment agreement or other written agreement between the Company or an Affiliate and the Participant, any of the Participants (i) indictment for, conviction of, plea of guilty or no contest to, or deferred adjudication or probation for (A) a felony, (B) any crime involving theft, fraud, dishonesty or embezzlement, or (C) any other crime which involves immoral conduct or actions likely to cause material harm the reputation of the Company, whether or not committed in the course of performing services for the Company; (ii) breach of any fiduciary duty to the Company or any of its Affiliates, including breach of the leadership teams operating procedures and policies established or adopted by the Company or any of its Affiliates; (iii) material act(s) or omission(s) in connection with his or her employment which are dishonest or fraudulent; (iv) commission of any material actions in violation of the written rules, policies, ethical standards or codes of conduct of the Company or any of its Affiliates; (v) conduct giving rise to a claim by another employee of unlawful harassment or discrimination, which claim, after a complete and diligent investigation, would lead a reasonable person to conclude that the Participant has violated state or federal discrimination laws, in a manner which would reasonably and customarily require the discharge of an employee; (vi) conduct, or failure to act, giving rise to Legitimate Claims by any persons that the Company or any of its Affiliates is in violation of any federal, state or local civil or criminal statute or act (the term Legitimate Claims shall mean conduct by the Participant, or the Participants failure to act, undertaken in dereliction of his or her duties, gross negligence or without a good-faith belief in the lawfulness of such action, resulting in any claims, allegations or assertions which, in the reasonable opinion of the Company (after a diligent investigation of the facts), have substantial merit and which would reasonably and customarily require the discharge of an employee); (vii) disregard of the lawful and reasonable directives of the Board, the Chief Executive Officer or any supervisor to whom the Participant reports which is communicated to the Participant; (viii) breach of any restrictive covenant in favor of the Company or any of its Affiliates; or (ix) inability to be in the employ of the Company or any of its Affiliates (A) due to a temporary or permanent injunction or other
prohibition against employment ordered by the court, or (B) because the Company determined in its reasonable discretion that it is in the best interests of the Company and/or any of its Affiliates, employees, officers or directors that the Participants employment with the Company and/or one of its Affiliates be terminated due to restrictions or covenants to which the Participant agreed with a prior entity which is likely to impact the Participants ability to timely perform his or her duties herein on behalf of the Company and/or any of its Affiliates. Termination of a Participants employment shall not be deemed to be for Cause unless and until the Company delivers to the Participant a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of the Board (after (I) reasonable written notice is provided to the Participant, (II) the Participant has at least fifteen (15) days from his or her receipt of such written notice in which to cure the alleged conduct (to the extent capable of cure), and (III) the Participant is given an opportunity, together with counsel, to be heard before the Board), finding that the Participant has engaged in the conduct described in any of (i)-(ix) above.
1.8 Change in Control shall have the meaning ascribed to such term in the Companys 2019 Long-Term Equity Incentive Plan, as may be amended from time to time, and any successor to that plan.
1.9 Change in Control Related Termination shall mean a termination event described in Section 2.1(a)(i) of the Plan.
1.10 COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
1.11 Code shall mean the Internal Revenue Code of 1986, as amended, together with the treasury regulations and other official guidance promulgated thereunder.
1.12 Code Section 409A shall mean Section 409A of the Code.
1.13 Committee shall mean the Compensation Committee of the Board or such other committee appointed by the Board from time to time to administer the Plan.
1.14 Company shall mean Del Friscos Restaurant Group, Inc., a Delaware corporation, and any successor as provided in Article VI hereof.
1.15 Delay Period shall mean the period commencing on the date the Participant incurs a Separation from Service from the Employer until the earlier of (a) the six (6)-month anniversary of the date of such Separation from Service and (b) the date of the Participants death.
1.16 Disability shall mean a Participants disability that qualifies under the Employers long-term disability plan without regard to any waiting periods set forth in such plan.
1.17 Effective Date shall mean June 7, 2019.
1.18 Eligible Employee shall mean any executive-level employee of the Employer subject to Section 16 of the Exchange Act, or otherwise designated in writing by the Committee to participate in the Plan.
1.19 Employer shall mean the Company and any Affiliates.
1.20 Equity Vesting shall mean the benefit set forth in Section 2.2(b) of the Plan.
1.21 ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended.
1.22 Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
1.23 Good Reason shall mean, unless otherwise set forth in an employment agreement or other written agreement between the Employer and the Participant, the occurrence of any of the following events, without the Participants express written consent, (a) assignment to the Participant of any duties inconsistent in any material respect with the Participants then current position, authority, duties or responsibilities, or any other action by the Company which, in the reasonable judgment of the Participant, results in a significant diminution in such position, authority, duties or responsibilities (for the avoidance of doubt, a Participant shall have Good Reason to terminate his or her employment unless, following the Change in Control, the Participant holds the same position(s) he or she held with the Employer immediately before the Change in Control, at the most senior resulting entity following such Change in Control); (b) a reduction by the Employer in the Participants Base Salary or Bonus as in effect on the date hereof or as the same may be increased from time to time; (c) a relocation of the Participants principal place of employment to a location that is both more than thirty-five (35) miles from his or her existing principal place of employment, and farther from Participants current residence than his or her existing principal place of employment; (d) a breach by the Employer of any material provision of this Plan not embraced in the foregoing clauses; or (e) the failure of the Company to obtain the binding agreement of any successor to the Company expressly to assume and agree to fully perform the Companys obligations under this Plan, as contemplated in Article VI hereof. Provided, however, that the Participant shall not terminate his or employment for Good Reason as a result of the alleged events described herein unless the Participant provides the Employer written notice of such alleged event or conduct (which written notice specifies in reasonable detail the circumstances claimed to give rise to the Participants right to terminate his or her employment for Good Reason) no later than ninety (90) days after the date on which the Participant first gains knowledge of the occurrence of the event or conduct, and the Employer thereafter fails to cure such event or conduct within thirty (30) days after its receipt of such notice. If the Employer fails to cure such event or conduct within the requisite thirty (30)-day period, the Participant may resign for Good Reason within ninety (90) days following the end of such cure period; otherwise, the Participant will forfeit his or her ability to resign for Good Reason on the basis of such event or conduct. For purposes of this Plan, the termination of a Participants employment by the Participant for Good Reason is intended to constitute an involuntary separation within the meaning of Treasury Regulation § 1.409A-1(n)(2).
1.24 Participant shall mean any Eligible Employee who is eligible to receive Severance Benefits under the Plan and who has been designated in writing by the Committee as a Participant.
1.25 Plan shall mean the Del Friscos Restaurant Group Executive Severance Plan (as amended from time to time)
1.26 Separation from Service shall mean a Participants termination or significant reduction of services with the Employer, provided that such termination or reduction constitutes a separation from service within the meaning of Code Section 409A and the guidance issued thereunder. All references in the Plan to a termination, termination of employment or like terms shall mean Separation from Service.
1.27 Severance Benefits shall mean, as applicable, the Severance Payment and the Equity Vesting.
1.28 Severance Payment shall mean the payment set forth in Section 2.2(a) of the Plan.
1.29 Specified Employee shall mean a Participant who, as of the date of his or her Separation from Service, is deemed to be a specified employee within the meaning of that term under Section 409A(a)(2)(B) of the Code and using the identification methodology selected by the Employer from time to time in accordance therewith, or if none, the default methodology set forth therein.
2.1 Eligibility for Severance Benefits.
(a) Qualifying Event for an Eligible Employee. If, during the period commencing on the date of a Change in Control and ending eighteen (18) months thereafter, the employment of a Participant is terminated by the Employer without Cause or by the Participant for Good Reason (either such termination, a Change in Control Related Termination), then the Employer shall pay or provide the Participant with the Severance Payment and the Equity Vesting pursuant to the terms set forth herein.
(b) Non-Qualifying Events for an Eligible Employee. A Participant shall not be entitled to Severance Benefits under the Plan if the Participants employment is terminated (i) by the Employer for Cause, (ii) by a Participant for any reason, except with respect to a resignation for Good Reason during the period set forth in this Section 2.1, or (iii) on account of the Participants death or Disability.
2.2 Severance Benefits. In the event that a Participant becomes entitled to benefits pursuant to Section 2.1(a) hereof, the Employer shall pay or provide to the Participant, in addition to any Accrued Obligations, the applicable Severance Benefits, as follows:
(a) Severance Payment for an Eligible Employee. Subject to the provisions of Sections 2.3 through 2.8, in the event of a Change in Control Related Termination, the Employer shall pay the Participant a lump sum amount in cash equal to the sum of (i) the Participants Base Salary (i.e., twelve (12) months of Base Salary) plus (ii) the Participants Bonus (the Severance Payment). Notwithstanding the foregoing or anything in the Plan to the contrary, to the extent required by Code Section 409A, the payment of the Severance Payment under this Section 2.2(a) shall be subject to the Delay Period as provided in Section 7.9(b) hereof.
(b) Accelerated Vesting of Equity Awards. Subject to the provisions of Sections 2.3 and 2.4 and Sections 2.6 through 2.8, to the extent not vested immediately prior to a Change in Control, all stock based awards granted to the Participant prior to the Change in Control under the Companys equity plans, each as amended, including, but not limited to, the Companys 2012 Long-Term Incentive Plan and 2019 Long-Term Equity Incentive Plan, or any predecessor or successor plan(s) thereto, that are outstanding as of the date of the Change in Control (including, but not limited to, stock options, restricted stock units and performance-based restricted stock units), or, in the event such stock based awards are not assumed or substituted by the successor in connection with such Change in Control, outstanding immediately prior to the date of the Change in Control, shall become fully vested as of the date of the Change in Control Related Termination, with any such performance awards vesting at the greater of (i) the portion of the performance award that the Participant would have earned based on actual performance if the applicable performance cycle(s) had terminated as of the date of Change in Control and performance achievement was measured at such time, and (ii) the portion of the performance award that the Participant would have earned based on deemed achievement of the applicable performance goals at target levels. Any stock option, stock appreciation right or similar award that provides for a Participant-elected exercise shall become fully exercisable and will remain exercisable for the applicable period following termination as specified in the applicable equity plan and/or the applicable award agreement. In the case of restricted stock or similar awards that are not subject to a Participant-elected exercise, the Company shall remove any restrictions (other than restrictions required by Federal securities law) or conditions in respect of such award as of the date of the Participants Change in Control Related Termination. For the avoidance of doubt, this Section 2.2(b) shall apply to any equity awards that, in connection with a Change in Control, (1) are granted as replacement of the equity awards held by the Participant immediately prior to the Change in Control, and (2) are outstanding immediately prior to the Change in Control, but are not assumed or substituted by the successor in connection with such Change in Control.
2.3 Prior Agreements. The Severance Benefits under this Plan shall supersede and be in lieu of any severance benefits and/or payments provided under the Plan as in effect prior to the Effective Date or under any other agreements, arrangements or severance plans by and between the Participant and the Employer, except to the extent any other such agreements, arrangements or severance plans entered into after the Effective Date specifically state that they supersede this Plan, or to the extent a Participants employment or similar agreement provides for severance benefits that, in the aggregate, are more favorable to the Participant (in which case, such greater benefits will be paid under this Plan).
2.4 No Duty to Mitigate/Set-off. No Participant entitled to receive Severance Benefits hereunder shall be required to seek other employment or to attempt in any way to reduce any amounts payable to the Participant by the Company or Employer pursuant to the Plan, and there shall be no offset against any amounts due to the Participant under the Plan on account of any remuneration attributable to any subsequent employment that the Participant may obtain or otherwise. The amounts payable hereunder shall not be subject to setoff, counterclaim, recoupment, defense or other right which the Employer may have against the Participant. In the event of the Participants breach of any provision hereunder, including without limitation, Sections 2.5 (other than as it applies to a release of claims under the Age Discrimination in Employment Act, as amended), 2.7 and 2.8 hereof, the Company shall be entitled to recover any payments previously made to the Participant hereunder. Severance Benefits shall be reduced (offset) by any amounts payable under any statutory entitlement (including notice of termination, termination pay and/or severance pay) of the Participant upon a termination of employment, including, without limitation, any payments related to an actual or potential liability under the Worker Adjustment and Retraining Notification Act (WARN) or similar state or local law.
2.5 Release Required. The Severance Payment payable pursuant to the Plan shall be conditioned upon the Participants execution and non-revocation of a release substantially in the form attached as Appendix A hereto (with such changes thereon as are legally necessary at the time of execution to make it enforceable, including, but not limited to the addition of any federal, state or local laws) (the Release). The Company shall provide the Release to the Participant within seven (7) days following the date of the Participants Separation from Service. The Release must be executed and become non-revocable during the period set forth therein, but in any event no later than sixty (60) days following Participants Separation from Service.
2.6 Code Section 280G.
(a) In the event it is determined pursuant to clause (b) below that part or all of the consideration, compensation or benefits to be paid to the Participant under the Plan in connection with the Participants termination of employment following a Change in Control, or under any other plan, arrangement or agreement in connection therewith (each a Payment), constitutes a parachute payment (or payments) under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments (the Parachute Amount) exceeds three (3) times the Participants base amount, as defined in Section 280G(b)(3) of the Code (the Participant Base Amount), less one dollar ($1.00) (the Safe Harbor Amount), and would be subject to the excise tax imposed by Section 4999 of the Code (the Excise Tax), the amounts constituting parachute payments which would otherwise be payable to or for the benefit of the Participant shall be reduced to the extent necessary so that the Parachute Amount is equal to the Safe Harbor Amount; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate Payment to be provided to the Participant, determined on a net after-tax basis (taking into account the Excise Tax imposed, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). For purposes of determining the amount of a Participants aggregate value of Payments on an after-tax basis, the Participant shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Payments are to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of such Participants residence on the date of the Change in Control.
(b) If the Payments must be reduced as provided in Section 2.6(a), any reduction in Payments required by this provision will occur in the following order: (i) reduction of cash payments; (ii) reduction of vesting acceleration of long-term incentive awards; and (iii) reduction of other benefits paid or provided. In the event that acceleration of vesting of long-term incentive awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for the long-term incentive award. If two (2) or more long-term incentive awards are granted on the same date, each award will be reduced on a pro-rata basis. The Participant shall be advised of the determination as to which Payments will be reduced and the reasons therefor, and the Participant and his or her advisors will be entitled to present information that may be relevant to this determination. In no event shall such reduction be effected through a delay in the timing of any Payment that is subject to Code Section 409A (or that would become subject to Code Section 409A as a result of such delay).
(c) Any determination that a Payment constitutes a parachute payment and any calculation described in this Section 2.6 (determination) shall be made by the independent public accountants who serve as the Companys independent public accountants immediately prior to the Change in Control (the Accountants), and may, at the Companys election, be made prior to termination of the Participants employment where the Company determines that a Change in Control is imminent. The Accountants shall provide such determination to the Participant in writing no later than thirty (30) days following the date of the Change in Control. If the Participant does not agree with such determination, he or she may give notice to the Company within ten (10) days of receipt of the determination from the Accountants and, within fifteen (15) days thereafter, accountants of the Participants choice must deliver to the Company their determination that in their judgment complies with the Code. If the two (2) accountants cannot agree upon the amount to be paid to the Participant pursuant to this Section 2.6 within ten (10) days of the delivery of the statement of the Participants accountants to the Company, the two (2) accountants shall choose a third (3rd) accountant who shall deliver their determination of the appropriate amount to be paid to the Participant pursuant to this Section 2.6, which determination shall be final. If the final determination provides for the payment of a greater amount than that proposed by the accountants of the Company, then the Company shall pay all of the Participants costs incurred in contesting such determination and all other costs incurred by the Company with respect to such determination. However, if the third (3rd) accountants determination is within 110% of the determination of the accountants of the Company, the Participant shall pay all reasonable costs incurred by both the Company and the Participant with respect to the determination.
(d) If the final determination made pursuant to clause (b) above results in a reduction of the Payments that would otherwise be paid to the Participant except for the application of Section 2.6(a), the Equity Vesting shall be eliminated or reduced to the extent necessary in order to not exceed the limitation under Section 2.6(a), then, to the extent necessary pursuant to Section 2.6(a), the Severance Payment shall be reduced. Within ten (10) days following such determination, the Company shall pay to or distribute to or for the benefit of the Participant such amounts as are then due to the Participant under the Plan and shall promptly pay to or distribute to or for the benefit of the Participant in the future such amounts as become due to the Participant under the Plan.
(e) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under Section 2.6(a) (an Overpayment) or that additional payments which are not made by the Company pursuant to Section 2.6(a) above should have been made (an Underpayment). In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to the Participant to the extent permitted by law, which the Participant shall repay to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Nothing in this Section 2.6(a) is intended to violate the Sarbanes-Oxley
Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Participant and the repayment obligation null and void to the extent required by such Act. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under the Plan, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Participant, together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
2.7 Restrictive Covenants. As a condition to receiving Severance Benefits (other than the Equity Vesting), the Participant shall be subject to the restrictive covenants described in the Release.
2.8 Cooperation. By accepting the Severance Benefits under the Plan, subject to the Participants other commitments, the Participant agrees to be reasonably available to cooperate (but only truthfully) with the Employer and the Company and provide information as to matters which the Participant was personally involved, or has information on, during the Participants employment with the Employer and which are or become the subject of litigation or other dispute.
3.1 Unfunded Status. The Plan shall be unfunded for the purposes of ERISA and the Code, and Severance Payments shall be paid out of the general assets of the Employer as and when Severance Payments are payable under the Plan. All Participants shall be solely unsecured general creditors of the Company and the Employer. If the Company decides in its sole discretion to establish any advance accrued reserve on its books against the future expense of the Severance Payments payable hereunder, or if the Company decides in its sole discretion to fund a trust under the Plan, such reserve or trust shall not under any circumstances be deemed to be an asset of the Plan.
ADMINISTRATION OF THE PLAN
4.1 Plan Administrator. The general administration of the Plan on behalf of the Company (as plan administrator under Section 3(16)(A) of ERISA) shall be placed with the Committee.
4.2 Reimbursement of Expenses of Plan Committee. The Company may, in its sole discretion, pay or reimburse the members of the Committee for all reasonable expenses incurred in connection with their duties hereunder, including, without limitation, expenses of outside legal counsel.
4.3 Action by the Plan Committee. Decisions of the Committee shall be made by a majority of its members attending a meeting at which a quorum is present (which meeting may be held telephonically), or by written action in accordance with applicable law. Subject to the terms of the Plan and provided that the Committee acts in good faith, the Committee shall have complete authority to determine a Participants participation and Severance Benefits under the Plan, to interpret and construe the provisions of the Plan, and to make decisions in all disputes involving the rights of any person interested in the Plan.
4.4 Delegation of Authority. Subject to the limitations of applicable law, the Committee may delegate any and all of its powers and responsibilities hereunder to other persons by formal resolution filed with and accepted by the Board. Any such delegation shall not be effective until it is accepted by the Board and the persons designated, and may be rescinded at any time by written notice from the Committee to the person to whom the delegation is made.
4.5 Retention of Professional Assistance. The Committee may employ such legal counsel, accountants and other persons as may be required in carrying out its work in connection with the Plan.
4.6 Accounts and Records. The Committee shall maintain such accounts and records regarding the fiscal and other transactions of the Plan and such other data as may be required to carry out its functions under the Plan and to comply with all applicable laws.
4.7 Indemnification. The Committee, its members and any person designated pursuant to Section 4.4 above shall not be liable for any action or determination made in good faith with respect to the Plan. The Employer shall, to the fullest extent permitted by law, indemnify and hold harmless each member of the Committee and each director, officer and employee of the Employer, and any person designated above, for liabilities or expenses they and each of them incur in carrying out their respective duties under the Plan, other than for any liabilities or expenses arising out of such individuals willful misconduct or fraud.
AMENDMENT AND TERMINATION
5.1 Amendment and Termination. The Company reserves the right to amend or terminate, in whole or in part, any or all of the provisions of the Plan by action of the Board (or a duly authorized committee thereof) at any time, provided that in no event shall any amendment, except for amendments pursuant to Section 7.9(a), reducing the Severance Benefits provided hereunder or any Plan termination be effective prior to the later of (A) the third (3rd) anniversary of the Effective Date and (B) one (1) year after the Company provides written notice to the Participant that it wishes to amend or terminate this Plan and the nature of the amendments, if applicable, and further provided, that the Company shall not amend or terminate the Plan at any time after (i) the occurrence of a Change in Control or (ii) the date the Company enters into a definitive agreement which, if consummated, would result in a Change in Control, unless the potential Change in Control is abandoned (as publicly announced by the Company), in either case, until two (2) years after the occurrence of a Change in Control, provided that all Severance Benefits under the Plan have been paid.
For purposes of the Plan, the Company shall include any and all successors or assignees, whether direct or indirect, by purchase, merger, consolidation or otherwise, to all or substantially all the business or assets of the Company, and such successors and assignees shall perform the Companys obligations under the Plan, in the same manner and to the same extent that the Company, would be required to perform if no such succession or assignment had taken
place. In the event the surviving corporation in any transaction to which the Company is a party is a subsidiary of another corporation, then the ultimate parent corporation of such surviving corporation shall cause the surviving corporation to perform the Plan in the same manner and to the same extent that the Company would be required to perform if no such succession or assignment had taken place. In such event, the term Company as used in the Plan, shall mean the Company, as hereinbefore defined and any successor or assignee (including the ultimate parent corporation) to the business or assets of the Company, which by reason hereof becomes bound by the terms and provisions of the Plan.
7.1 Minors and Incompetents. If the Committee shall find that any person to whom Severance Benefits are payable under the Plan is unable to care for his or her affairs because of illness or accident, or is a minor, any Severance Benefits due (unless a prior claim therefore shall have been made by a duly appointed guardian, committee or other legal representative) may be paid to the spouse, child, parent, or brother or sister, or to any person deemed by the Committee to have incurred expense for such person otherwise entitled to the Severance Benefits, in such manner and proportions as the Committee may determine in its sole discretion. Any such Severance Benefits shall be a complete discharge of the liabilities of the Company, the Employer, the Committee, and the Board under the Plan.
7.2 Limitation of Rights. Nothing contained herein shall be construed as conferring upon a Participant the right to continue in the employ of the Employer as an employee in any other capacity or to interfere with the Employers right to discharge him or her at any time for any reason whatsoever.
7.3 Payment Not Salary. Any Severance Benefits payable under the Plan shall not be deemed salary or other compensation to the Participant for the purposes of computing benefits to which he or she may be entitled under any pension plan or other arrangement of the Employer maintained for the benefit of its employees, unless such plan or arrangement provides otherwise.
7.4 Severability. In case any provision of the Plan shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but the Plan shall be construed and enforced as if such illegal and invalid provision never existed.
7.5 Withholding. The Company and/or the Employer shall have the right to make such provisions as it deems necessary or appropriate to satisfy any obligations it may have to withhold federal, state or local income or other taxes incurred by reason of payments pursuant to the Plan. In lieu thereof, the Company and/or the Employer shall have the right to withhold the amounts of such taxes from any other sums due or to become due from the Company and/or the Employer to the Participant upon such terms and conditions as the Committee may prescribe.
7.6 Non-Alienation of Benefits. The Severance Benefits payable under the Plan shall not be subject to alienation, transfer, assignment, garnishment, execution or levy of any kind, and any attempt to cause any Severance Benefits to be so subjected shall not be recognized.
7.7 Payments and Benefits to Beneficiary Upon Participants Death. In the event of the death of a Participant, all payments and benefits due hereunder to such Participant shall be paid or provided to his or her Beneficiary.
7.8 Governing Law. To the extent legally required, the Code and ERISA shall govern the Plan and, if any provision hereof is in violation of any applicable requirement thereof, the Company reserves the right to retroactively amend the Plan to comply therewith. To the extent not governed by the Code and ERISA, the Plan shall be governed by the laws of the State of Texas, without reference to rules relating to conflicts of law.
7.9 Code Section 409A.
(a) General. Although the Employer makes no guarantee with respect to the tax treatment of payments hereunder and shall not be responsible in any event with regard to non-compliance with Code Section 409A, the Plan is intended to either comply with, or be exempt from, the requirements of Code Section 409A. To the extent that the Plan is not exempt from the requirements of Code Section 409A, the Plan is intended to comply with the requirements of Code Section 409A and shall be limited, construed and interpreted in accordance with such intent. Accordingly, the Company reserves the right to amend the provisions of the Plan at any time and in any manner without the consent of Participants solely to comply with the requirements of Code Section 409A and to avoid the imposition of an excise tax under Code Section 409A on any payment to be made hereunder, provided that there is no reduction in the Severance Benefits hereunder. Notwithstanding the foregoing, in no event whatsoever shall the Employer be liable for any additional tax, interest or penalty that may be imposed on a Participant by Code Section 409A or any damages for failing to comply with Code Section 409A.
(b) Separation from Service; Delay Period for Specified Employees. A termination of employment shall not be deemed to have occurred for purposes of any provision of the Plan providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a Separation from Service. If a Participant is deemed on the date of termination to be a Specified Employee, then with regard to any payment that is specified as subject to this Section, such payment shall not be made prior to the expiration of the Delay Period. All payments delayed pursuant to this Section 7.9(b) (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such delay) shall be paid to the Participant in a single lump sum on the first Company payroll date on or following the first day following the expiration of the Delay Period, and any remaining payments and benefits due under the Plan shall be paid or provided in accordance with the normal payment dates specified for them herein.
(c) Separate Payments and No Participant Discretion. For purposes of Code Section 409A, the Participants right to receive any installment payments pursuant to this Plan shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., payment shall be made within thirty (30) days following the date of termination), the actual date of payment within the specified period shall be within the sole discretion of the Employer.
7.10 Non-Exclusivity. The adoption of the Plan by the Company shall not be construed as creating any limitations on the power of the Company to adopt such other supplemental retirement income arrangements as it deems desirable, and such arrangements may be either generally applicable or limited in application.
7.11 Non-Employment. The Plan is not an agreement of employment and it shall not grant the Participant any rights of employment.
7.12 Headings and Captions. The headings and captions herein are provided for reference and convenience only. They shall not be considered part of the Plan and shall not be employed in the construction of the Plan.
7.13 Gender and Number. Whenever used in the Plan, the masculine shall be deemed to include the feminine and the singular shall be deemed to include the plural, unless the context clearly indicates otherwise.
7.14 Communications. All announcements, notices and other communications regarding the Plan will be made by the Company and/or the Employer in writing.
7.15 Legal Fees. This Section 7.15 shall apply only in the event of a Change in Control Related Termination. In the event that a Participant substantially prevails in a litigation between the Participant and the Company arising in connection with such Participants attempt to obtain or enforce any right or benefit provided by the Plan, the Company agrees to pay the reasonable attorneys fees and other legal expenses incurred by such Participant in pursuing such litigation, including a reasonable rate of interest for delayed payment.
WHAT ELSE A PARTICIPANT NEEDS
TO KNOW ABOUT THE PLAN
8.1 Claims Procedure. Any claim by a Participant with respect to eligibility, participation, contributions, benefits or other aspects of the operation of the Plan shall be made in writing to a person designated by the Committee from time to time for such purpose. If the designated person receiving a claim believes, following consultation with the Chairman of the Committee, that the claim should be denied, he or she shall notify the Participant in writing of the denial of the claim within ninety (90) days after his or her receipt thereof. This period may be extended an additional ninety (90) days in special circumstances and, in such event, the Participant shall be notified in writing of the extension, the special circumstances requiring the extension of time and the date by which the Committee expects to make a determination with respect to the claim. If the extension is required due to the Participants failure to submit information necessary to decide the claim, the period for making the determination will be tolled from the date on which the extension notice is sent until the date on which the Participant responds to the Plans request for information.
If a claim is denied in whole or in part, or any adverse benefit determination is made with respect to the claim, the Participant will be provided with a written notice setting forth (a) the specific reason or reasons for the denial making reference to the pertinent provisions of the Plan or of Plan documents on which the denial is based, (b) a description of any additional material or information necessary to perfect or evaluate the claim, and explain why such material or information, if any, is necessary, and (c) inform the Participant of his or her right to request review of the decision.
The notice shall also provide an explanation of the Plans claims review procedure and the time limits applicable to such procedure, as well as a statement of the Participants right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review. If a Participant is not notified (of the denial or an extension) within ninety (90) days from the date the Participant notifies the Plan Administrator, the Participant may request a review of the application as if the claim had been denied.
A Participant may appeal the denial of a claim by submitting a written request for review to the Committee, within sixty (60) days after written notification of denial is received. Receipt of such denial shall be deemed to have occurred if the notice of denial is sent via first class mail to the Participants last shown address on the books of the Employer. Such period may be extended by the Committee for good cause shown. The claim will then be reviewed by the Committee. In connection with this appeal, the Participant (or his or her duly authorized representative) may (a) be provided, upon written request and free of charge, with reasonable access to (and copies of) all documents, records, and other information relevant to the claim, and (b) submit to the Committee written comments, documents, records, and other information related to the claim. If the Committee deems it appropriate, it may hold a hearing as to a claim. If a hearing is held, the Participant shall be entitled to be represented by counsel.
The review by the Committee will take into account all comments, documents, records, and other information the Participant submits relating to the claim. The Committee will make a final written decision on a claim review, in most cases within sixty (60) days after receipt of a request for a review. In some cases, the claim may take more time to review, and an additional processing period of up to sixty (60) days may be required. If that happens, the Participant will receive a written notice of that fact, which will also indicate the special circumstances requiring the extension of time and the date by which the Committee expects to make a determination with respect to the claim. If the extension is required due to the Participants failure to submit information necessary to decide the claim, the period for making the determination will be tolled from the date on which the extension notice is sent to the Participant until the date on which the Participant responds to the Plans request for information.
The Committees decision on the claim for review will be communicated to the Participant in writing. If an adverse benefit determination is made with respect to the claim, the notice will include: (a) the specific reason(s) for any adverse benefit determination, with references to the specific Plan provisions on which the determination is based; (b) a statement that the Participant is entitled to receive, upon request and free of charge, reasonable access to (and copies of) all documents, records and other information relevant to the claim; and (c) a statement of the Participants right to bring a civil action under Section 502(a) of ERISA. A Participant may not start a lawsuit to obtain benefits until after he or she has requested a review and a final decision has been reached on review, or until the appropriate timeframe described above has elapsed since the Participant filed a request for review and the Participant has not received a final decision or notice that an extension will be necessary to reach a final decision. These procedures must be exhausted before a Participant (or any beneficiary) may bring a legal action seeking payment of benefits. In addition, no lawsuit may be started more than two years after the date on which the applicable appeal was denied. If there is no decision on appeal, no lawsuit may be started more than two years after the time when the Committee should have decided the appeal. The law also permits the Participant to pursue his or her remedies under Section 502(a) of ERISA without exhausting these appeal procedures if the Plan has failed to follow them.
AGREEMENT AND RELEASE
Del Friscos Restaurant Group, Inc. (the Company) and [NAME] (the Employee) agree to the terms and conditions set forth below:
1. Termination. Employees employment with the Employer (as defined under the Del Friscos Restaurant Group Executive Severance Plan (the Severance Plan)) [is] [was] terminated as of [MONTH], 20[ ] (the Termination Date). Employee acknowledges that the Termination Date [is] [was] the termination date of Employees employment for purposes of participation in and coverage under all benefit plans and programs sponsored by or through the Employer. Employee acknowledges and agrees that the Employer shall not have any obligation to rehire Employee, nor shall the Employer have any obligation to consider Employee for employment, after the Termination Date. All capitalized terms used herein, unless defined otherwise herein, shall have the meaning set forth in the Severance Plan.
2. Severance Payment. In exchange for the general release in paragraph 4 below and other promises contained herein, and in accordance with the terms of the Severance Plan, which Employee hereby acknowledges receiving, Employee will receive the Severance Payment under Section 2.2 of the Plan, paid in accordance therewith.
3. Acknowledgment. Employee hereby agrees and acknowledges that the Severance Payment exceeds any payment, benefit or other thing of value to which Employee might otherwise be entitled under any policy, plan or procedure of the Employer, the Company or Affiliates or pursuant to any prior agreement or contract with the Employer, the Company or Affiliates.
4. Release. (a) In exchange for the Severance Payment and other valuable consideration, Employee, for himself or herself and for his or her heirs, executors, administrators and assigns (referred to collectively as Releasors), forever releases and discharges the Employer and any and all of the Employers parent companies, partners, subsidiaries, affiliates, successors and assigns and any and all of its and their past and/or present officers, directors, partners, agents, employees, representatives, counsel, employee benefit plans and their fiduciaries and administrators, successors and assigns (referred to collectively as the Releasees), from any and all claims, demands, causes of action, fees and liabilities of any kind whatsoever, whether known or unknown, which Releasors ever had, now have or may have against Releasees by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence or other matter up to and including the date Employee signs this Agreement and Release.
(b) Without limiting the generality of the foregoing, this Agreement and Release is intended to and shall release Releasees from any and all claims, whether known or unknown, that Releasors ever had, now have or may have against Releasees arising out of Employees employment with the Employer or any of the Releasees, the terms and conditions of such employment and/or the termination of such employment, including but not limited to: (i) any claim under the Age Discrimination in Employment Act, as amended (ADEA), and/or the Older Workers Benefit Protection Act which laws prohibit discrimination on account of age; (ii) any claim under Title VII of the Civil Rights Act of 1964, as amended, which, among other things, prohibits discrimination/retaliation on account of race, color, religion, sex, and national origin; (iii) any claim under the Americans with Disabilities Act (ADA) or Sections
503 and 504 of the Rehabilitation Act of 1973, each as amended; (iv) any claim under the Employee Retirement Income Security Act of 1974, as amended (ERISA): (v) any claim under the Family and Medical Leave Act; (vi) any claim or other action under the National Labor Relations Act, as amended; (vii) any claim under the Workers Adjustment and Retraining Notification Act; (viii) any claim under the Sarbanes-Oxley Act of 2002; (ix) any other claim of discrimination, harassment or retaliation in employment (whether based on federal, state or local law, regulation, or decision); (x) any other claim (whether based on federal, state or local law, statutory or decisional) arising out of the terms and conditions of Employees employment with and termination from the Employer and/or the Released Parties; (xi) any claims for wrongful discharge, whistleblowing, constructive discharge, promissory estoppel, detrimental reliance, negligence, defamation, emotional distress, compensatory or punitive damages, and/or equitable relief; (xii) any claims under federal, state, or local occupational safety and health laws or regulations, all as amended; and (xiii) any claim for attorneys fees (other than claims for legal fees pursuant to Section 7.15 of the Severance Plan), costs, disbursements and/or the like. By virtue of the foregoing, Employee agrees that he or she has waived any damages and other relief available to him or her (including, without limitation, money damages, equitable relief and reinstatement) under the claims waived in this paragraph 4; provided that nothing herein shall be a waiver of Employees right to report violations of federal law or regulation or provide truthful information about this Agreement and Release or Releasees or, to cooperate with any investigation being conducted by any governmental agency, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Notwithstanding anything herein to the contrary, the sole matters to which this Agreement of Release does not apply are: (A) claims to the Severance Benefits; (B) claims under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (C) claims arising after the date Employee signs this Agreement and Release; (D) claims relating to any rights of indemnification under the Employers organizational documents or otherwise; (E) claims relating to any outstanding stock options or other equity-based award on the Termination Date, including, without limitation, the Equity Vesting; (F) claims to vested accrued benefits under the Employers tax qualified retirement plans or non-qualified retirement plans in accordance with, and subject to, the terms and conditions of such plans and applicable law; and (G) Employees right to seek enforcement of the terms of the Severance Plan, including, but not limited to, claims for legal fees pursuant to Section 7.15 of the Severance Plan. Employee acknowledges that Employee has been informed that Employee might have specific rights and/or claims under the ADEA. Employee specifically waives such rights and/or claims under the ADEA to the extent such rights and/or claims arose on or prior to the date this Agreement of Release is executed by Employee.
(d) Non-Disparagement: Cooperation in Certain Other Legal Proceedings. Employee agrees that at no time will Employee, in public or private, engage in any form of conduct or make any statements or representations that deprecate, impugn, disparage or otherwise impair the reputation, goodwill or commercial interests of, or make any remarks that would tend to or be construed to tend to defame, the Releasees, nor shall the Employee assist any other person, firm or company in so doing. Nothing in this Agreement and Release shall prohibit or restrict Employee from (i) making any disclosure of information, as required by law, in a proceeding or lawsuit in which the Employer is a party, or additionally in any other civil proceeding or lawsuit upon ten (10) business days prior written notice to the Employer; (ii) providing information to, or testifying or otherwise assisting in an investigation or proceeding brought by any federal regulatory or law enforcement agency or legislative body or the Employers designated legal, compliance, or human resources officers; (iii) filing, testifying, participating or otherwise assisting in a proceeding relating to an alleged violation
of any federal, state or municipal law relating to fraud or any rule or regulation of the Securities and Exchange Commission; (iv) challenging the validity of this Agreement and Release as it applies to a release of claims under ADEA; or (v) accepting any U.S. Securities and Exchange Commission awards. In addition, nothing in this Agreement and Release prohibits or restricts Employer or Employee from initiating communications with, or responding to any inquiry from, any regulatory or supervisory authority regarding any good faith concerns about possible violations of law or regulation. Pursuant to 18 U.S.C. § 1833(b), Employee will not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret of the Employer or its subsidiaries or affiliates that (A) is made (x) in confidence to a Federal, State, or local government official, either directly or indirectly, or to Employees attorney and (y) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Employee files a lawsuit for retaliation by Employer for reporting a suspected violation of law, Employee may disclose the trade secret to Employees attorney and use the trade secret information in the court proceeding, if Employee files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement and Release is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
5. Cooperation. Employee agrees to be reasonably available at times and for durations reasonably acceptable to both parties to assist the Employer with respect to any issues wherein the Employer considers Employees knowledge or expertise reasonably beneficial. The Employer will reimburse Employee for all reasonable out of pocket expenses that incurred while he or she is engaged in such activity. Employee will also cooperate fully with the Employer in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Employer that relate to events or occurrences that transpired while the Employee was employed by the Employer. Employees full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Employer at mutually convenient times. Employee shall also cooperate fully with the Employer in connection with any such investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Employee was employed by the Employer. The Employer shall pay for any reasonable out-of-pocket expenses incurred by Employee in connection with Employees performance of the obligations pursuant to this paragraph 5. Employees performance under this paragraph 5 following the Termination Date shall be subject to Employees then current employment obligations.
6. Nonsolicitation. To the extent permitted by applicable law as applied to Employee, for a period of twelve (12) months following Employees last day of employment with the Employer, Employee shall not, directly or indirectly, either on Employees own behalf or on behalf of any other person or entity, solicit, induce or encourage, or attempt to solicit, induce or encourage, (a) the resignation of any director, officer, employee or independent contractor of the Employer, or (b) in the case of an independent contractor, any reduction in the services such independent contractor provides to the Employer.
7. Return of Property. Employee represents that Employee has returned (or will return) to Employer all property belonging to the Employer, including but not limited to electronic devices (e.g., Blackberry and/or laptop computer), keys, card access to buildings and office floors, and business information and documents.
8. Severability. If any provision of this Agreement and Release is held to be illegal, void, or unenforceable, such provision shall be of no force or effect. However, the illegality or unenforceability of such provision shall have no effect upon, and shall not impair the enforceability of, any other provision of this Agreement and Release. Further, to the extent any provision of this Agreement and Release is deemed to be overbroad or unenforceable as written, such provision shall be given the maximum effect permissible under law.
9. Entire Agreement. This Agreement and Release represents the entire understanding between the parties hereto with respect to the subject matter hereof, and may not be changed or modified except by a written agreement signed by both of the parties hereto after the Effective Date of this Agreement and Release. In the event of any conflict between any of the provisions of this Agreement and Release and the provisions of the Severance Plan, the terms of the Severance Plan shall govern.
10. Governing Law. Except as may be preempted by federal law, this Agreement and Release shall be governed by the laws of the State of Texas, without regard to conflict of laws principles, and the parties in any action arising out of this Agreement and Release shall be subject to the personal jurisdiction and venue of the federal and state courts, as applicable, in Dallas County, Texas.
11. Non-Disclosure. The parties agree that this Agreement and Release and its terms are confidential and shall be accorded the utmost confidentiality. Employee hereby agrees to keep confidential and not disclose the terms and conditions of this Agreement to any person or entity without the prior written consent of the Employer, except to Employees accountants, attorneys and/or spouse, provided that they also agree to maintain the confidentiality of this Agreement. Employee shall be responsible for any disclosure by them. Employee further represent that Employee has not disclosed the terms and conditions of this Agreement to anyone other than Employees attorneys, accountants and/or spouse. This paragraph 11 does not prohibit disclosure of this Agreement by any party if required by law, provided that if Employee is required to make such disclosure the Employee has given the Employer prompt written notice of any legal process and cooperated with the Employers efforts to seek a protective order.
12. Confidential Information. Employee acknowledges that, during the course of Employees employment with the Employer, Employee has had access to information relating to the Employer and its business that is not generally known by persons not employed by the Employer and that could not easily be determined or learned by someone outside of the Employer (Confidential Information). Such information is confidential or proprietary and may include, but not be limited to, customer or client contact lists, trade secrets, patents, copyrighted materials, proprietary computer software and programs, products, systems analyses, lists of suppliers and supplier contracts, internal policies and marketing strategies, financial information relating to the Employer and its employees, and other documents and information that provide the Employer with a competitive advantage and that could not be easily determined or learned or obtained by someone outside the Employer. Employee further acknowledges that: (a) such confidential and proprietary information is the exclusive, unique, and valuable property of the Employer; (b) the businesses of the Employer depend on such confidential and proprietary information; and (c) the Employer wishes to protect such confidential and proprietary information by keeping it confidential for the use and benefit of
the Employer. Employee agrees not to disclose or use such Confidential Information at any time in the future, except if authorized by the Employer in writing or if required in connection with a subpoena or other legal process or investigation by any governmental, regulatory or self-regulatory agency or in connection with any legal proceeding brought against Employee, or in connection with a proceeding to enforce this Agreement.
13. Remedies. Employee acknowledges and agrees that the Employer will suffer irreparable damage if any of the provisions of paragraphs 5, 6, 7, 11 or 12 of this Agreement and Release are breached and that the Employers remedies at law for a breach of such provisions would be inadequate and, in recognition of this fact, Employee agrees that, in the event of such a breach, in addition to any remedies at law, the Employer will be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.
14. Binding Agreement. This Agreement and Release is binding upon, and shall inure to the benefit of, the parties and their respective heirs, executors, administrators, successors and assigns.
15. ADEA Provisions. Employee acknowledges that Employee: (a) has carefully read this Agreement and Release in its entirety; (b) has had an opportunity to consider the terms of this Agreement and Release [insert only if employees are over 40: and the disclosure information attached hereto as Exhibit I (which is provided pursuant to the Older Workers Benefit Protection Act)] for at least [twenty-one (21)] [forty-five (45)] days; (c) is hereby advised by the Company in writing to consult with an attorney of Employees choice in connection with this Agreement and Release; (d) fully understands the significance of all of the terms and conditions of this Agreement and Release and has discussed them with an attorney of Employees choice, or has had a reasonable opportunity to do so; and (e) is signing this Agreement and Release voluntarily and of Employees own free will and agrees to abide by all the terms and conditions contained herein.
16. Revocation/Effective Date. Employee may accept this Agreement and Release by signing it before a notary public and delivering it to [INSERT NAME AND ADDRESS OF CONTACT] on or before the [twenty-first (21st)] [forty-fifth (45th)] day after [he/she] receives this Agreement and Release. Notwithstanding the foregoing, Employee may not sign this Agreement and Release before Employees last day of employment and this Agreement and Release will not be accepted or effective if signed before the Termination Date. After signing this Agreement and Release, Employee shall have seven (7) days (the Revocation Period) to revoke Employees decision by indicating Employees desire to do so in writing delivered to [INSERT NAME] at the above address by no later than the last day of the Revocation Period. If the last day of the Revocation Period falls on a Saturday, Sunday or holiday, the last day of the Revocation Period will be deemed to be the next business day. Provided Employee does not revoke this Agreement and Release during the Revocation Period, the Effective Date of this Agreement and Release shall be the later of the eighth (8th) day after Employee signs this Agreement and Release or the day after the last day of the Revocation Period (the Effective Date).
DEL FRISCOS RESTAURANT GROUP, INC.