EMPLOYMENT AGREEMENT
This Agreement is entered into effective as of this 22 day of March,
2000, by and between Lone Star Steakhouse & Saloon, Inc., a corporation (the
"Corporation") and Xxxxxx X. Xxxxx ("Employee").
RECITALS
WHEREAS, the Employee agrees to serve as Senior Vice President -
Counsel of the Corporation; and
WHEREAS, Employee is a principal officer of the Corporation and an
integral part of its management; and
WHEREAS, the Corporation desires to engage the services of Employee,
whose experience, knowledge and abilities with respect to the business and
affairs of the Corporation are extremely valuable to the Corporation; and
WHEREAS, the parties hereto desire to enter into this Agreement
setting forth the terms and conditions of the continued employment relationship
of the Corporation and Employee.
NOW THEREFORE, it is agreed as follows:
ARTICLE I
Employment Agreement. The Employment Agreement dated January 1,
1999, executed by the Corporation and the Employee is hereby terminated and
shall be superseded by this Agreement.
ARTICLE II
2.1 Term of Employment. The Corporation shall initially employ
Employee for a period of three years from the date hereof (the "Initial Term").
2.2 Extension of Initial Term. Upon each annual anniversary date of
this Agreement, this Agreement shall be extended automatically for successive
terms of one year each, unless either the Corporation or the Employee gives
contrary
written notice to the other not later than 90 days prior to the annual
anniversary date thereof.
ARTICLE III
Duties of the Employee
General Duties. Employee shall serve as Senior Vice President -
Counsel of the Corporation. He shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the Corporation
consistent with such position subject to such policies and procedures as may be
established by the Board.
Employee shall: (i) devote his entire business time, attention, and
energies to the business of the Corporation, and, (ii) faithfully and
competently perform his duties hereunder; and, Employee shall not, during the
term of this Agreement, engage in any other business activity except as
permitted by Article 9.
ARTICLE IV
Compensation
4.1 Salary. For Employee's services to the Corporation as Senior
Vice President - Counsel, Employee shall initially be paid a salary at the
annual rate of $228,000, (herein referred to as "Salary") payable bi-weekly. On
the first day of each calendar year during the term of this Agreement with the
Corporation, Employee shall be eligible for an increase in Salary based on
recommendations made by the Compensation Committee of the Board.
4.2 Bonus. Employee is eligible to participate in the stock option
plan of the employer and all bonus compensation plans, which may be offered from
time to time.
ARTICLE V
Employee Benefits
5.1 Use of Automobile. The Corporation shall provide, at the option
of Employee, with either the use of an automobile for business and personal use
or a car allowance of to be specified by the Corporation, which complies with
I.R.S. Guidelines. The Corporation shall pay all expenses of operating,
maintaining and
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repairing the automobile and shall procure and maintain automobile liability
insurance in respect thereof, with such coverage insuring each Employee for
bodily injury and property damage.
5.2 Medical, Life and Disability Insurance Benefits. The Corporation
shall provide employee with the medical, life and disability insurance benefits
in accordance with the established benefit policies of the Corporation.
5.3 Business Expenses. Employee shall be authorized to incur
reasonable expenses for promoting the business of the Corporation including
expenses for entertainment, travel, and similar items. The Corporation shall
reimburse Employee for all such expenses upon the presentation by Employee, from
time to time, of an itemized account of such expenditures.
5.4 Vacations. Employee shall be entitled to an annual paid vacation
commensurate with the Corporation's established vacation policy for executive
officers. The timing of paid vacations shall be scheduled in a reasonable manner
by the Employee.
5.5 Disability. Upon disability (as defined herein) of the Employee,
the Employee shall be entitled to receive an amount equal to 50% of his salary
(in addition to any disability insurance benefits received pursuant to Section
5.2 herein), such amount being paid semi-monthly in twelve equal installments.
ARTICLE VI
Termination
6.1 Death. Employee's employment hereunder shall be terminated upon
the Employee's death.
6.2 Disability. The Corporation may terminate Employee's employment
hereunder in the event Employee is disabled and such disability continues for
more than 180 days. Disability shall be defined as the inability of Employee to
render the services required of him under this Agreement as a result of physical
or mental incapacity.
6.3 Cause.
(a) The Corporation may terminate Employee's employment hereunder
for Cause. For the purpose of this Agreement, "Cause"
shall mean the (i) willful and intentional failure by Employee to substantially
perform his duties hereunder, other than any failure resulting from Employee's
incapacity due to physical or mental incapacity, or (ii) commission by Employee,
in connection with his employment by the Corporation, of an illegal act or any
act (though not illegal) which is not in the ordinary course of the Employee's
responsibilities and which exposes the Corporation to a significant level of
undue liability. For purposes of this paragraph, no act or failure to act on
Employee's part shall be considered to have met either of the preceding tests
unless done or omitted to be done by Employee not in good faith without a
reasonable belief that his action or omission was in the best interest of the
Corporation.
(b) Notwithstanding the foregoing, Employee shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to Employee a copy of a resolution, duly adopted by the majority vote of the
Board of Directors.
6.4 Compensation Upon Termination for Cause or Upon Resignation by
Employee. If Employee's employment shall be terminated for Cause or if Employee
shall resign his position with the Corporation, the Corporation shall pay
Employee's compensation only through the last day of Employee's employment by
the Corporation. The Corporation shall then have no further obligation to
Employee under this Agreement.
6.5 Involuntary Termination. If:
(i) the Employee is terminated by Corporation at any
time prior to the termination of this Agreement for
reasons other than Cause (as defined herein), (ii) if
Corporation gives notice to the Employee, in accordance
with Section 2.2 herein, that this Agreement will not be
renewed;
Employee shall be paid, over the ensuing six (6) month period, a sum
equal to the cash compensation paid to him excluding all bonuses of
any kind by Corporation for the six (6) month period immediately
preceding such termination or non-renewal. Such six (6) month
period, as the case may be, shall begin: (i) on the date of
termination in the case of termination of Employee's employment; and
(ii) on the date notice of non-renewal is given in the case of
termination of this Agreement not accompanied by simultaneous
termination of Employee's employment with the Corporation.
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ARTICLE VII
No Obligation to Mitigate Damages; No Effect
on Other Contractual Rights
7.1 No Mitigation. Employee shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by
Employee as the result of employment by another employer after Employee's
termination or resignation.
7.2 Other Contractual Rights. The provisions of this Agreement, and
any payment provided for hereunder, shall not reduce any amount otherwise
payable, or in any way diminish Employee's existing rights, or rights which
would accrue solely as a result of passage of time under any employee benefit
plan or other contract, plan or arrangement of which Employee is a beneficiary
or in which he participates.
ARTICLE VIII
Successors to the Corporation
Employee's Successors and Assigns. This Agreement shall inure to the
benefit of and be enforceable by Employee's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Employee's devisee, legatee or
other designee or, if there be no such designee, to Employee's estate.
ARTICLE IX
Restrictions on Employee
9.1 Non-Disclosure. (a) The Employee acknowledges that, because of
his duties and his position of trust under this Agreement, the Employee will
become familiar with trade secrets (including, but not limited to, marketing
objectives and strategies, financial reporting, management systems, recipes,
procedures, business methods, processes and financial information) and other
confidential information (including, but not limited to, operating methods and
procedures, secret lists of actual and potential sources
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of supply, customers and employees, costs, profits, markets, sales and plans for
future developments) (the trade secrets and other confidential information being
referred to herein as "business information") which are valuable assets and
property rights of the Corporation and not publicly known. Except in connection
with the performance of his duties for the Corporation, the Employee agrees that
he will not during or at any time after the Term and after the termination
hereof, either directly or indirectly, individually or jointly with others, for
the benefit of Employee or any third party, publish, disclose, use, or authorize
anyone else to publish, disclose, or use, any business information or any
information relating to any aspect of the business or operations of the
Corporation, including, but not limited to any secret or business information
relating to the business, customers, trade or industrial practices, trade
secrets, technology, recipes or know-how of the Corporation or any facts
concerning the systems, methods, procedures or plans developed or used by the
Corporation and its subsidiaries and affiliates. The Employee agrees to retain
all such business information in a fiduciary capacity for the sole benefit of
the Corporation, its successors and assigns. Upon termination of his employment
by the Corporation or at any time that the Corporation may so request the
Employee will surrender to the Corporation all non-public papers, notes, reports
and other documents (and all copies thereof) relating to the business of the
Corporation which he may then possess or have under his control.
(b) To the extent that Employee has generated or will generate
during the course of his employment works of authorship (which shall be deemed
to be "works for hire"), copyrightable material, inventions, trademarks, trade
dress or other intellectual property (hereinafter collectively referred to as
"Intellectual Property"), such Intellectual Properly shall be the property of
the Corporation. In the event that the "works for hire" doctrine is found
inapplicable, all such Intellectual Properly, and all rights therein, will be
and are hereby deed to be, assigned and transferred by this Agreement to the
Corporation, its successors and assigns. The Corporation, its successor and
assigns, will have the exclusive right to obtain copyright patent and/or
trademark registrations or other protection of the Intellectual Property
(including without limitation, maintaining such Intellectual Property as trade
secrets) in the Corporation's own name, or in the names of the Corporation's
successors or assigns, as inventor, author and/or owner and to secure any
renewals and extension of such protection throughout the world. If the
Corporation chooses to maintain any part or all of the Intellectual Property as
a trade secrets, the Corporation shall so inform the Employee and the Employee
shall
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maintain such Intellectual Property as confidential to the extent required by
this paragraph. The Employee further agrees as follows:
(i) The Employee hereby acknowledges that he retain no rights
whatsoever with respect to the aforementioned Intellectual Property,
including but no limited to, any rights to reproduce such
Intellectual Property, or to make, have made, use and/or sell
products based upon the Intellectual Property, or otherwise to
prepare derivatives thereof, to file patent, copyright or trademark
applications with respect thereto, to distribute copies of any
Intellectual Property in any manner whatsoever, to exhibit, use or
display any such Intellectual Property publicly or otherwise, or to
license or assign to any third party the right to do any of the
foregoing; and
(ii) The Employee will without further remuneration (except
for out-of-pocket) expenses, execute and deliver any documents and
give any assistance as may be reasonably requested by the
Corporation to effect the ownership rights as provided in this
Agreement or otherwise to further the purposes of this paragraph.
9.2 Non-Solicitation. (a) Except in the performance of his duties
hereunder, at no time during the Term and for a period of twenty-four (24)
months thereafter such Employee shall not directly or indirectly, employ or seek
to employ, target or assist others in employing or seeking to employ directly or
indirectly any employee of the Corporation.
(b) In addition during the Term and for such twenty-four (24) months
thereafter, the Employee shall not influence or attempt to influence customers
or suppliers of the Corporation or any of its present or future subsidiaries or
affiliates, either directly or indirectly to divert their business to any
individual, partnership, firm, corporation or other entity then in direct or
indirect competition with the business of the Corporation, or any subsidiary or
affiliate of the Corporation.
9.3 Non-Competition. During the Term and for twenty-four (24) months
thereafter, regardless of any termination pursuant to Article 6 or any voluntary
termination or resignation by Employee, Employee shall not in any capacity
whatsoever, individually or jointly with others, directly or indirectly, whether
for his own account or for that of any other person or entity be employed by,
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engage in, serve as an officer, director, consultant, agent, partner, proprietor
or other participant, or own or hold any ownership interest in any person or
entity engaged in a restaurant business, which features steak and where steak
sales, as a percentage of food sales, exceed thirty percent (30%) which
restaurant business is located within a one hundred mile radius of any existing
Lone Star Steakhouse & Saloon restaurant, Del Frisco's Double Eagle Steak House
restaurant or Xxxxxxxx'x Steakhouse restaurant without the Corporation's written
consent.
ARTICLE X
Uniqueness of Provisions
The provisions of Article 9 of this Agreement are of a unique nature
and of extraordinary value and of such a character that a material breach of the
provisions of Article 9 of this Agreement by the Employee will result in
irreparable damage and injury to the Corporation for which the Corporation will
not have any adequate remedy at law. Therefore, in the event that the Employee
commits or threatens to commit any such breach, the Corporation will have (a)
the right and remedy to have the provision of Article 9 of this Agreement
specifically enforced by any court having equity jurisdiction, it being agreed
that in any proceeding for an injunction, and upon any motion for a temporary or
permanent injunction, the Employee's ability to answer in damages shall not be a
bar or interposed as a defense to the granting of such injunction and (b) the
right and remedy to require the Employee to account for and to pay over to the
Corporation all compensation, profits, monies, accruals, increments and other
benefits (hereinafter referred to collective as the "Benefits" derived or
received by him as a result of any transactions constituting a breach of any of
the provisions of Article 9 of this Agreement, and the Employee hereby agrees to
account for and pay over such Benefits to the Corporation. Each of the rights
and remedies enumerated in Article 9 above shall be independent of the other,
and shall be severally enforceable, and all of such rights and remedies shall be
in addition to, and not in lieu of, any other rights and remedies available to
the Corporation on law or in equity.
ARTICLE XI
Miscellaneous
11.1 Indemnification. To the full extent permitted by law, the Board
shall authorize the payment of expenses incurred by or
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shall satisfy judgments or fines rendered or levied against Employee in any
action brought by a third-party against Employee (whether or not the Corporation
is joined as a party defendant) to impose any liability or penalty on Employee
for any act alleged to have been committed by Employee while employed by the
Corporation unless Employee was acting with gross negligence or willful
misconduct. Payments authorized hereunder shall include amounts paid and
expenses incurred in settling any such action or threatened action.
11.2 Arbitration. The parties agree that any disputes, claims or
controversy of any kind arising out of this agreement or out of the employment
relationship between Employee and the Corporation shall be submitted to
arbitration. Employee simultaneously with execution of this agreement agrees to
execute the Receipt acknowledging receipt of the Corporation's Mandatory
Arbitration Policy.
11.3 Notices. All notices, requests, demands and other
communications hereunder, including notice of termination by the Employee under
Article 12.1 or 12.2 of this Agreement must be in writing and shall be deemed to
have been duly given upon receipt if delivered by hand, sent by telecopier or
courier, and three (3) days after such communication is mailed within the
continental United States by first class certified mail, return receipt
requested, postage prepaid, to the other party.
11.4 Waiver of Breach. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by any party.
11.5 Amendment. No amendment or modification of this Agreement shall
be deemed effective unless or until executed in writing by the parties hereto.
11.6 Validity. This Agreement, having been executed and delivered in
the State of Kansas, its validity, interpretation, performance and enforcement
will be governed by the laws of that state.
11.7 Article Headings. Article and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.8 Counterpart Execution. This Agreement may be executed in two or
more counterparts, each of which shall be
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deemed an original, but all of which together shall constitute but one and the
same instrument.
11.9 Legal Fees. Except in the event of termination for Cause, and
only in the event a change of control of the Corporation has occurred, the
Corporation shall pay all legal fees and expenses which Employee may incur as a
result of the Corporation's contesting the validity, enforceability or
Employee's interpretation of, or determination under, this Agreement.
11.10 Exclusivity. Specific arrangements referred to in this
Agreement are not intended to exclude Employee's participation in any other
benefits available to executive personnel generally or to preclude other
compensation or benefits as may be authorized by the Board from time to time.
11.11 Partial Invalidity. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
ARTICLE XII
12.1 Change of Control. The Employee shall have the right to
terminate his employment hereunder, upon 10 days notice to the Corporation
within six months of Change of Control. For the purposes of this Agreement, a
"Change of Control" means (i) the direct or indirect, sale, lease, exchange or
other transfer of all or substantially all (50% or more) of the assets of the
Corporation to any Person or Group of Persons other than an Affiliate or an
entity controlled by an Affiliate, (ii) the merger, consolidation or other
business combination of the Corporation with or into another corporation with
the effect that the shareholders of the Corporation immediately prior to the
business combination hold 50% or less of the combined voting power of the then
outstanding securities of the surviving Person of such merger ordinarily (and
apart from rights accruing under special circumstances) having the right to vote
in the election of directors, (iii) the replacement of a majority of the Board
of the Corporation over any period of two years or less, from the directors who
constituted the Board of the Corporation at the beginning of such period, and
such replacement(s) shall not have been approved by the Board of the Corporation
as constituted at the beginning of such period, (iv) a Person or Group of
Persons other than an Affiliate or an entity controlled by an Affiliate, shall,
as a result of a tender or exchange
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offer, open market purchases, privately negotiated purchases or otherwise, have
become the beneficial owner (within the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") of
securities of the Corporation representing 50% or more of the combined voting
power of the then outstanding securities of the Corporation ordinarily (and
apart from rights accruing under special circumstances) having the right to vote
in the election of directors. A transaction constituting a Change of Control
shall be deemed to have occurred upon the closing of the transaction.
Notwithstanding the foregoing, a transaction shall not constitute a Change of
Control under this Agreement if the transaction is approved by (i) at least a
majority of the Board of the Corporation as constituted immediately prior to the
transaction and (ii) Xxxxx X. Xxxxxxx, the Chairman of the Board of the
Corporation.
For the purposes of this Agreement, an "Affiliate" of the
Corporation shall mean any person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with the Corporation, including but not limited to the executive officer and
directors of the Corporation.
12.2 Termination of Non-Compete and Non-Solicitation. In the event
the Employee elects to terminate this Agreement in connection with a Change of
Control under the terms of Article 12.1, the provisions of Article 9.2
Non-Solicitation and 9.3 Non-Competition shall be deemed to have expired and be
of no further force or effect as of the date of termination of the Employee.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed and its seal affixed hereto by its officers thereunto duly authorized;
and the Employee has executed this Agreement, as of the day and year first above
written.
"CORPORATION" LONE STAR STEAKHOUSE &
Attest SALOON, INC.
/s/ Xxxxxx X. Xxxxx BY /s/ Xxxxx X. Xxxxxxx
------------------------------- --------------------------------
Xxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxxx, Chairman
and Chief Executive Officer
Witness "EMPLOYEE"
/s/ Xxxxxx X. Xxxxx
------------------------------- ----------------------------------
XXXXXX X. XXXXX
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