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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Agreement is made as of December 18, 1996 by and between Famous
Dave's of America, Inc., a Minnesota corporation (the "Company"), and Xxxx
Xxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive in accordance with the
terms and conditions stated in this Agreement; and
WHEREAS, Executive desires to accept that employment pursuant to the terms
and conditions of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereto agree as follows:
I. Employment
1.1 Employment as Executive Vice President of Strategic Planning and
Marketing. The Company hereby employs Executive as Executive Vice President of
Strategic Planning and Marketing and Executive accepts such employment pursuant
to the terms of this Agreement. Executive shall report to and take direction
from the Chief Executive Officer and the Board of Directors. The Executive
will perform those duties which are usual and customary for a executive vice
president of strategic planning and marketing of a restaurant enterprise.
Executive shall be employed at the Company's corporate offices. He shall
perform his duties in a manner reasonably expected of a executive vice
president of strategic planning and marketing of a restaurant company.
1.2 Term. Employment shall be for a term commencing January 2, 1997 and
continuing until the earlier of (i) January 2, 2000 or (ii) the date
Executive's employment terminates pursuant to Article III hereof.
II. Compensation, Benefits and Perquisites
2.1 Base Salary. During the term and effectiveness of this Agreement, the
Company shall pay Executive an annualized base salary ("Base Salary") at the
annual rate of $125,000.00. The Base Salary shall be payable in equal
installments in the time and manner that other employees of the Company are
compensated. The Board of Directors of the Company will review the Base Salary
at least annually, and may, in its sole discretion increase it to reflect
performance, appropriate industry guideline data or other factors.
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2.2 Bonus. Executive will receive a bonus in the amount of $25,000 upon
the completion of a long-term strategic business plan which has been approved
by the Company's Board of Directors. The Company also agrees to consider an
annual bonus equal to twenty-five percent of the Executive's Base Salary, which
will be based on Executive's performance to be determined at the end of each
year of service, at the discretion of the Company's Board of Directors.
2.3 Vacations. Executive shall be entitled to three weeks paid vacation,
or such greater amount of time as determined by the Company's Chief Executive
Officer.
2.4 Employee Benefits. Executive shall be entitled to the usual and
customary benefits and perquisites which the Company generally provides to its
other executives under its applicable plans and policies (including, without
limitation, group health, group dental and group life coverage).
2.5 Option Grant. Concurrently with this Agreement, the Company agrees to
grant stock options covering 80,000 shares of the Company's common stock,
vesting over four years, at an exercise price equal to the fair market value of
such shares. Assuming Executive is then employed by the Company, the Company
agrees to grant Executive on each of the first and second anniversaries hereof
an additional option to purchase 20,000 shares of Common Stock vesting over
four years with an exercise price equal to the closing sales price on such date
for each share on the NASDAQ system (or other exchange, if applicable).
III. Termination of Executive's Employment
3.1 Termination of Employment. Executive's employment under this
Agreement may be terminated by the Company or Executive at any time for any
reason; provided, however, that if Executive's employment is terminated by the
Company during the term of this Agreement for a reason or disability other than
for cause as defined in Section 3.2 below he shall continue to receive his Base
Salary under Section 2.1 for a period of six months from the date of
termination. The Executive's employment under this Agreement may be terminated
by Executive at any time for any reason. The termination shall be effective as
of the date specified by the party initiating the termination in a written
notice delivered to the other party, which date shall not be earlier than the
date such notice is delivered to the other party. This Agreement shall
terminate in its entirety immediately upon the death of Executive. Except as
expressly provided to the contrary in this section or applicable law,
Executive's rights to pay and benefits shall cease on the date his employment
under this Agreement terminates.
3.2 Cause. For purposes of this Article III, "cause" shall mean only the
following: (i) commission of a felony; (ii) theft or embezzlement of Company
property or commission of similar acts involving moral turpitude; or (iii) the
failure by Executive to substantially perform his material duties under this
Agreement (excluding nonperformance resulting from Executive's disability)
which willful failure is not cured within thirty (30) days after written notice
from the Chief Executive Officer of the Company specifying the act of willful
nonperformance or within
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such longer period (but no longer than ninety (90) days in any event) as is
reasonably required to cure such willful nonperformance.
3.3 Disability. If Executive has become disabled such that he cannot
perform the essential functions of his job with or without reasonable
accommodation, and the disability has continued for a period of more than
ninety (90) days, the Chief Executive Officer of the Company may, in its
discretion, terminate his employment under this Agreement. Upon any such
termination for disability, Executive shall be entitled to such disability,
medical, life insurance, and other benefits as may be provided generally for
disabled employees of the Company during the period he remains disabled.
3.4 Notice. Executive must provide the Company with at least 30 days
written notice if Executive desires to terminate his employment under this
Agreement.
IV. Confidentiality
4.1 Prohibitions Against Use. Executive acknowledges and agrees that
during the term of this Agreement he may have access to various trade secrets
and confidential business information ("Confidential Information") of the
Company. Executive agrees that it shall use such Confidential Information
solely in connection with his obligations under this Agreement and shall
maintain in strictest confidence and shall not disclose any such Confidential
Information, directly or indirectly or use such information in any other way
during the term of this Agreement or for a period of one (1) year after the
termination of this Agreement. Executive further agrees to take all reasonable
steps necessary to preserve and protect the Confidential Information. The
provisions of this Section shall not apply to information which (i) was in
possession of Executive prior to receipt from the Company, or (ii) is or
becomes generally available to the public other than as a result of a
disclosure by the Company, its directors, officers, employees, agents or
advisors, or (iii) becomes available to Executive from a third party having the
right to make such disclosure.
4.2 Remedies. Executive acknowledges that the Company's remedy at law for
any breach or threatened breach by Executive of Section 4.1 will be inadequate.
Therefore, the Company shall be entitled to injunctive and other equitable
relief restraining Executive from violating those requirements, in addition to
any other remedies that may be available to the Company under this Agreement or
applicable law.
V. Non-Competition
5.1 Agreement Not to Compete. Executive agrees that, on or before the
date which is two (2) years after the date Executive's employment under this
Agreement terminates, he will not, unless he receives the prior approval of the
Board of Directors of the Company, directly or indirectly engage in any of the
following actions:
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(a) Own an interest in (except as provided below), manage, operate,
join, control, lend money or render financial or other assistance to, or
participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any entity whose primary business
is the retail sale of barbeque food. However, nothing in this subsection
(a) shall preclude Executive from holding less than one percent of the
outstanding capital stock of any corporation required to file periodic
reports with the Securities and Exchange Commission under Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, the securities
of which are listed on any securities exchange, quote on the National
Association of Securities Dealers Automated Quotation System or traded in
the over-the-counter market.
(b) Intentionally solicit, endeavor to entice away from the Company,
or otherwise interfere with the relationship of the Company, any person
who is employed by or otherwise engaged to perform services for the
Company (including, but not limited to, any independent sales
representatives or organizations), whether for Executive's own account or
for the account of any other individual, partnership, firm, corporation
or other business organization.
If the scope of the restrictions in this section are determined by a court of
competent jurisdiction to be too broad to permit enforcement of such
restrictions to their full extent, then such restrictions shall be construed or
rewritten (blue-lined) so as to be enforceable to the maximum extent permitted
by law, and Executive hereby consents, to the extent he may lawfully do so, to
the judicial modification of the scope of such restrictions in any proceeding
brought to enforce them.
VI. Miscellaneous
6.1 Amendment. This Agreement may be amended only in writing, signed by
both parties.
6.2 Entire Agreement. This Agreement contains the entire understanding of
the parties with regard to all matters contained herein. There are no other
agreements, conditions or representations, oral or written, expressed or
implied, with regard thereto. This Agreement supersedes all prior agreements
relating to the employment of Executive by the Company.
6.3 Assignment. This Agreement shall be binding upon, and shall inure to
the benefit of parties and their respective successors, assigns, heirs and
personal representatives and any entity with which the Company may merge or
consolidate or to which the Company may sell substantially all of its assets.
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6.4 Notices. Any notice required to be given under this Agreement shall
be in writing and shall be delivered either in person or by certified or
registered mail, return receipt requested. Any notice by mail shall be
addressed as follows:
If to the Company, to:
Famous Dave's of America, Inc.
00000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 00
Xxxxxxxx, XX 00000
Attention: President
If to Executive, to:
Xxxx Xxxxxx
_____________________________
_____________________________
or to such other addresses as either party may designate in writing to the
other party from time to time.
6.6 Waiver of Breach. Any waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of a provision of this Agreement.
6.7 Severability. If any one or more of the provisions (or portions
thereof) of this Agreement shall for any reason be held by a final
determination of a court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions (or portions of the provisions) of this
Agreement, and the invalid, illegal or unenforceable provisions shall be deemed
replaced by a provision that is valid, legal and enforceable and that comes
closest to expressing the intention of the parties hereto.
6.8 Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Minnesota, without giving effect to
conflict of law principles.
6.9 Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach of this Agreement or the breach of any exhibits
attached to this Agreement shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and a
judgment upon the award rendered by the arbitrator(s) may be entered
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in any court having jurisdiction. The arbitration award shall be subject to
review only in the manner provided in the Uniform Arbitration Act as adopted in
Chapter 572, Minnesota Statutes, as the Act is amended at the time of
submission of the issue to arbitration. The arbitrator(s) shall have the
authority to award the prevailing party its costs and reasonable attorney's
fees which shall be paid by the non-prevailing party. In the event the parties
hereto agree that it is necessary to litigate any dispute hereunder in a court,
the non-prevailing party shall pay the prevailing party its costs and
reasonable attorney's fees. Notwithstanding anything in this Section 6.9 to
the contrary, Executive shall be entitled to seek specific performance of
Executive's rights to be paid until the date of termination during the pendency
of any dispute or controversy arising under or in connection with this
Agreement or exhibits attached to this Agreement. Further, the Company shall
be entitled to seek an injunction or restraining order in a court of competent
jurisdiction to enforce the provision of Article IV and Article V.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date set forth above.
FAMOUS DAVE'S OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxxxx
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Its Chief Executive Officer
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
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AMENDMENT TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is made as of January 23, 1997 by
and between FAMOUS DAVE'S OF AMERICA, INC., a Minnesota corporation (the
"Company"), and XXXX XXXXXX (the "Executive").
W I T N E S S E T H
WHEREAS, the Company and Executive are parties to an Employment Agreement
dated as of December 18, 1996 (the "Employment Agreement"); and
WHEREAS, the Company and Executive desire to amend the Employment
Agreement in view of the hiring of a new President and Chief Operating Officer
of the Company;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereto agree to amend the Employment Agreement as follows:
Section 1.1 of the Employment Agreement shall be amended to read in its
entirety as follows:
1.1 Employment as Executive Vice President of Strategic Planning and
Marketing. The Company hereby employs Executive as Executive Vice
President of Strategic Planning and Marketing and Executive accepts such
employment pursuant to the terms of this Agreement. Executive shall report
to and take direction from the President and Chief Operating Officer. The
Executive will perform those duties which are usual and customary for a
executive vice president of strategic planning and marketing of a
restaurant enterprise. Executive shall be employed at the Company's
corporate offices. He shall perform his duties in a manner reasonably
expected of a executive vice president of strategic planning and marketing
of a restaurant company.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date set forth above.
FAMOUS DAVE'S OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxxxx
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Chairman of the Board
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
