EXHIBIT 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, effective as of the 1st day of May,
2001, by and between The Xxxxx & Wollensky Restaurant Group, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxx, an individual residing at 00 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the "Executive").
WHEREAS, the Company desires to engage the services of the Executive as
its President and Chief Operating Officer;
WHEREAS, the Executive desires to be so employed by the Company; and
WHEREAS, the Company desires to be assured that the unique and expert
services of the Executive will be available to the Company, and that the
Executive is willing and able to render such services on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of such employment and the mutual
covenants and promises herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive agree as follows:
Section 1. EMPLOYMENT. The Company hereby employs the Executive as its
President and Chief Operating Officer and the Executive hereby accepts such
employment under and subject to the terms and conditions hereinafter set forth.
Section 2. TERM. Unless sooner terminated as provided in Section 8, the
term of employment under this Agreement shall begin on the date hereof and shall
conclude on the fifth anniversary of the effective date hereof (as such term may
be terminated pursuant to Section 9 the "Term").
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Section 3. DUTIES. The Executive shall serve as President and Chief
Operating Officer, and he shall perform additional duties as the Chairman of the
Board of Directors of the Corporation may assign to him from time to time. The
Executive hereby agrees to devote his time and best efforts to the faithful
performance of such duties and to the promotion and forwarding of the business
and affairs of the Company for the Term.
Section 4. SALARY COMPENSATION. In consideration of the services
rendered by the Executive under this Agreement, the Company shall pay the
Executive a base salary (the "Base Salary") at the rate of Four Hundred Thousand
($400,000) Dollars per calendar year. The Base Salary shall be increased each
year by an amount equal to five percent (5%) of the Base Salary for the
immediately preceding year, commencing on the first anniversary of the effective
date of this Agreement, to reflect increases in the cost of living. The Base
Salary shall be paid in such installments and at such times as the Company pays
its regularly salaried key executive employees.
Section 5. BONUS COMPENSATION. The Executive shall be eligible to earn a
bonus for each year during the Employment Term (the "Bonus Compensation") in
accordance with the terms set forth on Schedule A attached hereto.
Section 6. EQUITY PARTICIPATION. The Executive shall be eligible to
participate in such option plans as are adopted from time to time by the
Company. The Executive is being granted on the date hereof an option to purchase
one hundred fifty thousand (150,000) shares of common stock of the Company under
an option agreement pursuant to the Company's 2001 Stock Incentive Plan.
Section 7. FRINGE BENEFITS. As a key executive employee of the Company,
the Executive shall receive, at the expense of the Company, an automobile, an
office, an
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assistant and tax advice and assistance in filing his tax returns (such advice
and assistance not to exceed $12,000 in any one year), and shall be eligible to
participate in all employee fringe benefit programs as are made available from
time to time to the Company's key executive employees.
Section 8. BENEFITS. In addition to the compensation detailed in Section
4 and 5 of this Agreement, the Executive shall be entitled to the following
additional benefits:
Section 8.01. PAID VACATION. The Executive shall be entitled to thirty
(30) business days paid vacation per calendar year. Such vacation shall extend
for such periods and shall be taken at such intervals as shall be appropriate
and consistent with the proper performance of the Executive's duties hereunder
and consistent with the Company's vacation policy.
Section 8.02. INSURANCE COVERAGE. During the Term, the Company shall
provide the Executive with group health, dental, disability and life insurance
protection to the same extent that it makes such protection available to its
other key executive employees.
Section 8.03. REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Executive for all reasonable expenses actually incurred by the Executive in
connection with the business affairs of the Company and the performance of his
duties hereunder. The Executive shall comply with such reasonable limitations
and reporting requirements with respect to such expenses as the Board may
establish from time to time.
Section 9. TERMINATION. This Agreement shall be terminated at the end of
the Term, or earlier as follows:
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Section 9.01. DEATH. This Agreement shall terminate upon the death of
the Executive, except that the compensation provided in Section 4 shall continue
as provided in Section 10.03.
Section 9.02. PERMANENT DISABILITY. In the event of any physical or
mental disability of the Executive rendering the Executive unable to perform his
or her duties hereunder for a period of at least one hundred twenty (120)
consecutive days and the further determination that the disability is permanent
with regard to the Executive's ability to return to work in his or full
capacity, this Agreement shall terminate automatically, except that the
compensation provided in Section 4 shall continue as provided in Section 10.03.
Any determination of disability shall be made by the Board in consultation with
a qualified physician or physicians selected by the Board and reasonably
acceptable to the Executive.
Section 9.03. BY THE COMPANY FOR CAUSE. The employment of the Executive
may be terminated by the Company for Cause (as defined below) at any time
effective upon written notice to the Executive. The Company shall provide the
Executive with at least ten (10) business days' prior written notice of a Board
meeting at which a termination for Cause will be considered and the Executive
will have an opportunity to attend and participate in that meeting. For purposes
hereof, the term "Cause" shall mean that the Board has determined that any one
or more of the following has occurred:
(a) The Executive shall have been convicted of, or shall have
pleaded guilty or NOLO CONTENDERE to, any felony or a crime
involving moral turpitude;
(b) The Executive shall have repeatedly failed or refused to
perform his duties hereunder and such failure or refusal shall
have continued for a period of ten (10) days following written
notice from the Board, it being understood that the Company's
failure to achieve its business plan or
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projections shall not itself be considered a failure or refusal to
perform duties;
(c) the Executive shall have intentionally committed any fraud,
embezzlement, misappropriation of funds, breach of fiduciary duty
or other act of dishonesty against the Company which has a
material adverse effect on the Company; or
(d) the Executive shall have (i) failed to perform his duties
hereunder in a manner that is reasonably satisfactory to the
Board, (ii) refused to carry out the duties assigned to him by the
Board, or (iii) breached any one or more of the material
provisions of this Agreement, which failure, refusal or breach
shall have continued for a period of at least ten (10) days after
notice from the Company describing such failure, refusal or breach
in reasonable detail.
Section 9.04. BY THE COMPANY WITHOUT CAUSE. The Company may terminate
the Executive's employment without Cause at any time, effective upon written
notice to the Executive.
Section 9.05. BY THE EXECUTIVE WITH GOOD REASON. The Executive may
terminate this Agreement at any time effective upon written notice to the
Company for Good Reason (as defined below). For purposes hereof, the term "Good
Reason" shall mean that any one or more of the following has occurred:
(a) The Company shall have breached in any material respect any of
the obligations owed to the Executive hereunder, which breach
shall continue without cause for a period of at least ten (10)
days after written notice from the Executive describing such
breach in reasonable detail;
(b) The Company shall have removed the Executive as its President
or Chief Operating Officer, or shall have materially diminished
the authority and responsibility which the Executive has on the
date hereof, which diminution shall continue without cure for a
period of at least ten (10) days after written notice from the
Executive describing such diminution in reasonable detail; or
(c) The Company shall have required that the Executive relocate
his principal place of employment outside of New York City.
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Section 9.06. BY THE EXECUTIVE VOLUNTARILY WITHOUT GOOD Reason. The
Executive may terminate this Agreement at any time without Good Reason,
effective upon at least fifteen (15) business days' prior written notice to the
Company.
Section 10. TERMINATION PAYMENTS AND BENEFITS.
Section 10.01. VOLUNTARY TERMINATION WITHOUT GOOD REASON; TERMINATION
FOR CAUSE. Upon any termination of this Agreement: (1) voluntarily by the
Executive without Good Reason, or (2) by the Company for Cause, all payments,
salary and other benefits hereunder shall cease at the effective date of
termination except as specifically provided in this Section 10.
Section 10.02. TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON.
In the event that this Agreement is terminated by the Company without Cause, or
the Executive terminates this Agreement for Good Reason, and subject to the
provisions of Section 12.02, the Executive shall receive as a termination
settlement (the "Termination Payment") an amount equal to the monthly Base
Salary as in effect at the effective date of termination times 24, which benefit
shall be paid in equal monthly installments. In addition to the Termination
Payment, the Executive shall continue to receive the insurance benefits
referenced in Section 8.02 for the period that he receives the Termination
Payment, but shall receive no further benefits or compensation hereunder.
Section 10.03. TERMINATION UPON DEATH OR DISABILITY. In the event the
Executive is terminated as a result of the death or disability of the Executive,
the Executive shall receive Base Salary and benefits through the date of
termination, and shall receive the proceeds of the insurance maintained pursuant
to Section 8.02.
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Section 10.04. PUBLIC STATEMENT OF TERMINATION. In the event the
Executive's employment terminates for any reason, the Company and the Executive
shall agree upon a public statement pertaining to the Executive's termination of
employment, and the terms of said statement shall not be subject to subsequent
modification by either party unless required by law; provided, however, that in
the event the Company and the Executive are unable in good faith to agree on
such a statement, the Company may make public statements as are necessary to
comply with the law.
Section 10.05. NO OTHER BENEFITS. Except as referenced in this
Agreement, the Executive shall not be entitled to any compensation, severance or
other benefits from the Company upon the termination of this Agreement for any
reason whatsoever.
Section 11. PROPRIETARY INFORMATION.
Section 11.01. PROPRIETARY INFORMATION. In the course of his service to
the Company, the Executive will have access to confidential, business plans,
financial information, recipes, supplier lists and other trade secrets, all of
which are confidential and may be proprietary and are owned or used by the
Company, or any of its subsidiaries or affiliates. Such information shall
hereinafter be called "Proprietary Information" and shall include any and all
items enumerated in the preceding sentence and coming within the scope of the
business of the Company or any of its subsidiaries or affiliates as to which the
Executive may have access, whether conceived or developed by others or by the
Executive alone or with others during the period of his service to the Company,
whether or not conceived or developed during regular working hours. Proprietary
Information shall not include any records, data or information which are in the
public domain during the period of service by the Executive provided the same
are not in the
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public domain as a consequence of disclosure directly or indirectly by the
Executive in violation of this Agreement.
Section 11.02. FIDUCIARY OBLIGATIONS. The Executive agrees that
Proprietary Information is of critical importance to the Company and a violation
of this Section 11.02 and Section 11.03 would seriously and irreparably impair
and damage the Company's business. The Executive agrees that he shall keep all
Proprietary Information in a fiduciary capacity for the sole benefit of the
Company.
Section 11.03. NON-USE AND NON-DISCLOSURE. The Executive shall not
during the Term, or at any time thereafter (a) disclose, directly or indirectly,
any Proprietary Information to any person other than the Company or authorized
employees thereof at the time of such disclosure, or such other persons to whom
the Executive has been specifically instructed to make disclosure by the Board
and in all such cases only to the extent required in the course of the
Executive's service to the Company or (b) use any Proprietary Information,
directly or indirectly, for his own benefit or for the benefit of any other
person or entity. At the termination of his employment, the Executive shall
deliver to the Company all notes, letters, documents and records which may
contain Proprietary Information which are then in his possession or control and
shall destroy any and all copies and summaries thereof.
Section 12. RESTRICTIONS ON ACTIVITIES OF THE EXECUTIVE
Section 12.01. ACKNOWLEDGEMENTS. The Executive agrees that he is being
employed hereunder in a key management capacity with the Company and that the
Company is engaged in a highly competitive business and that the success of the
Company's business in the marketplace depends upon its goodwill and reputation
for
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quality and dependability. The Executive further agrees that reasonable limits
may be placed on his ability to compete against the Company as provided herein
so as to protect and preserve the legitimate business interests and good will of
the Company.
Section 12.02. GENERAL RESTRICTIONS.
(a) During the Term and for the Non-Competition Period (as defined
below), the Executive will not, within a five mile radius of any site owned,
operated or managed by the Company or any of its subsidiaries, engage or
participate in, directly or indirectly, as principal, agent, executive,
employee, consultant, investor or partner, or assist in the management of, or
own any stock or any other ownership interest in, any business which is
Competitive with the Company (as defined below). For purposes of this Agreement,
a business shall be considered "Competitive with the Company" only if it
directly or indirectly owns, operates or manages high end steak restaurants
within a five mile radius of any site through which the Company or any
subsidiary then conducts business. Notwithstanding the foregoing, the Executive
may own, directly or indirectly, less than 5% of the capital stock of any public
Company.
(b) For purposes of this Agreement, the "Non-Competition Period"
shall mean (i) the period of one year after the Executive's employment
terminates if such termination is pursuant to Section 9.03 or 9.06, and (ii) the
period during which Termination Payments are made if such termination is
pursuant to Section 9.04 or 9.05. Notwithstanding the foregoing, if the
Executive's employment is terminated pursuant to Section 9.04 or 9.05, and with
thirty (30) days following such termination the Executive sends written notice
to the Company electing to forgo any Termination Payment otherwise owed, the
Company shall be released from any obligation to make the
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Termination Payments, and the Executive shall be released from the provisions of
Section 12.02.
Section 12.03. NON-SOLICITATION.
(a) During the Term and the Non-Solicitation Period (as defined
below), the Executive will not directly or indirectly solicit, or attempt to
solicit, any officer, director, consultant or employee of the Company or any of
its subsidiaries or affiliates to leave his or her engagement with the Company
or such subsidiary or affiliate nor will he directly hire any person who was a
director, consultant, officer or employee of the Company or any of its
affiliates or subsidiaries at the time of the termination of the Executive's
employment with the Company or during the three month period preceding such
termination.
(b) For purposes of this Agreement, the "Non-Solicitation Period"
shall mean the period of one year after the Executive's employment terminates
for any reason.
Section 13. REMEDIES. It is specifically understood and agreed that any
breach of the provisions of Sections 11 or 12 of this Agreement is likely to
result in irreparable injury to the Company and that the remedy at law alone
will be an inadequate remedy for such breach, and that in addition to any other
remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Executive and to seek both temporary and
permanent injunctive relief (to the extent permitted by law) without the
necessity of proving actual damages.
Section 14. MERGER CLAUSE. The Company shall not consolidate, merge or
transfer all or a substantial portion of its assets without requiring the
transferee to assume this Agreement and the obligations hereunder.
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Section 15. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable and the invalidity of any one or more provisions shall not affect the
validity of any other provision. In the event that a court of competent
jurisdiction shall determine that any provision of this Agreement or the
application thereof is unenforceable in whole or in part because of the duration
or scope thereof, the parties hereto agree that said court in making such
determination shall have the power to reduce the duration and scope of such
provision to the extent necessary to make it enforceable, and that the Agreement
in its reduced form shall be valid and enforceable to the full extent permitted
by law.
Section 16. NOTICES. All notices hereunder, to be effective, shall be in
writing and shall be delivered by hand or mailed by certified mail, postage and
fees prepaid, as follows:
If to the Company: The Xxxxx & Wollensky Restaurant
Group, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
Copy to: Xxxxx Xxxxxx, Esq.
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to the Executive: Xxxxx Xxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
or to such other address as a party may notify the other pursuant to a notice
given in accordance with this Section 16.
Section 17. MISCELLANEOUS.
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Section 17.01. MODIFICATION. This Agreement constitutes the entire
Agreement between the parties hereto with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral.
This Agreement may not be amended or revised except by a writing signed by the
parties.
Section 17.02. ASSIGNMENT AND TRANSFER. This Agreement shall not be
terminated by the merger or consolidation of the Company with any corporate or
other entity or by the transfer of all or substantially all of the assets of the
Company to any other person, corporation, firm or entity. The provisions of this
Agreement shall be binding on and shall inure to the benefit of any such
successor in interest to the Company. Neither this Agreement nor any of the
rights, duties or obligations of the Executive shall be assignable by the
Executive, nor shall any of the payments required or permitted to be made to the
Executive by this Agreement be encumbered, transferred or in any way
anticipated.
Section 17.03. CAPTIONS. Captions herein have been inserted solely for
convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
Section 17.04. GOVERNING LAW. This Agreement shall be construed under
and enforced in accordance with the laws of The State of New York.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as a sealed instrument as of the day and year first above written.
THE XXXXX & WOLLENSKY RESTAURANT
GROUP, INC.
By:_______________________________
Xxxx X. Xxxxxxxx, Chairman
EXECUTIVE
By:_______________________________
Name: Xxxxx Xxxx
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SCHEDULE A
Bonus Compensation
The Executive shall be eligible to earn Bonus Compensation upon
achievement of such targets or objectives as the Board of Directors may
establish from time to time. For the Company's fiscal years 2001 and 2002,
such targets and objectives shall relate to the Company's earnings before
interest, taxes, depreciation and amortization ("EBITDA"). The Executive
shall not receive any Bonus Compensation for any year in which the EBITDA is
less than ninety percent (90%) of the targeted EBITDA for that year. For each
year in which the EBITDA is equal to or greater than ninety percent (90%) of
the targeted EBITDA for that year, Bonus Compensation shall increase on a
straight line basis from zero percent (0%) to a maximum of seventy-five
percent (75%) of the Executive's Base Salary in direct proportion to
increases in EBITDA from ninety percent (90%) of the target EBITDA for such
year to one hundred-ten percent (110%) of the target EBITDA for such year.
Bonus Compensation shall be paid within thirty (30) days after receipt of
audited financial statements of the Company for the previous fiscal year.
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