Exhibit 10.1
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EMPLOYMENT AGREEMENT
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This Employment Agreement, dated as of the 2nd day of January, 1999,
between Noble Roman's, Inc., an Indiana corporation ("Company") and Xxxx X.
Xxxxxx ("Xxxxxx").
RECITALS:
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1. The Company is engaged in pizza focused foodservice solutions for
franchising to non-traditional locations ("Business").
2. The Company desires to retain, by contract, a qualified individual to
serve as its Chairman; and,
3. Xxxxxx has served as Chairman of the Company and is willing to continue
to serve as Chairman of the Company pursuant to the terms and conditions of this
Agreement.
AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
1. Employment. The Company hereby employs Xxxxxx and Xxxxxx hereby accepts
employment upon the terms and conditions hereinafter set forth.
2. Term. The effective date of this Agreement shall be January 2, 1999.
Subject to the provisions for termination as provided in paragraph 10 hereof,
the term of this Agreement shall be seven (7) years from and after January 2,
1999 and it shall be automatically renewed for successive seven (7) year periods
on January 2 of each year hereafter unless the Board of Directors ("Board")
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takes specific action not to renew. If the Board elects not to renew on any
anniversary date, this Agreement shall be in full force and effect during the
remaining portion of the then current seven (7) year period.
3. Duties. Xxxxxx is engaged as Chairman of the Company to manage, direct
and administer all phases of the Business of the Company, subject to the
direction and control of the Board of the Company. The precise services, duties
and authority of Xxxxxx as Chairman may be further defined, extended or
curtailed from time to time at the discretion of the Board.
4. Extent of Services. Xxxxxx, subject to the control of the Board, shall
have the power and authority commensurate and necessary to his position of
Chairman of the Company. He shall devote his entire employable time, attention
and best efforts to the business of the Company and shall not, without the
consent of the Board, which consent shall not be unreasonably withheld, during
the term of this Agreement, be actively engaged in any other business activity,
whether or not such business activity is pursued for gain, profit and other
pecuniary advantage; but this shall not be construed as preventing Xxxxxx from
investing his personal assets in such form or manner as will not require any
services on the part of Xxxxxx in the operation of the affairs of the company in
which such investments are made. Xxxxxx shall be a full-time employee of the
Company and shall devote at least forty (40) hours per week (excused absences
and vacation periods counted as hours worked for this purpose) to the affairs of
the Company unless the Company consents to a shorter work period.
5. Compensation. Xxxxxx shall be compensated for services rendered
hereunder during the term hereof as follows:
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(a) Xxxxxx shall receive a base salary of Two Hundred Seventy-Five Thousand
Dollars ($275,000.00) per year payable in equal periodic installments consistent
with the Company's payroll practices and subject to withholding of taxes and
other customary amounts. During the term hereof, the base salary will be
automatically increased by 6% annually unless further increased by action of the
Board and, once increased, never decreased.
(b) Xxxxxx may be entitled to bonuses in an amount and at times as
determined by the Board.
6. Fringe Benefits:
(a) Xxxxxx shall be entitled to participate in such existing employee
benefit plans and insurance programs offered by the Company, or which it may
adopt from time to time, for its management or supervisory personnel generally
at such times as Xxxxxx shall have fulfilled the eligibility requirement for
participation therein. Nothing herein shall be construed so as to prevent the
Company from modifying or terminating any employee benefit plans or programs or
employee fringe benefits it may adopt from time to time.
(b) During the term of this Agreement, the Company shall provide Xxxxxx
with an automobile of such sufficient style and quality as determined by Xxxxxx
and consistent with his position as Chairman of the Company. The Company shall
pay directly or shall reimburse Xxxxxx for insurance and all normal and
reasonable automobile operating expenses, such as maintenance repairs and
insurance, that he incurs in the performance of his duties hereunder.
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(c) Xxxxxx shall be entitled to at least four (4) weeks vacation with pay
for each year during the term hereof or such greater number of days or weeks of
vacation as may be determined by the Board.
(d) The Company shall reimburse Xxxxxx for all reasonable expenses he may
incur for promoting the Company's business, including expenses for
entertainment, travel and similar items.
(e) The Company shall at its expense, in addition to any life insurance
benefits pursuant to paragraph 6(a), provide Xxxxxx with a life insurance policy
on the life of Xxxxxx in the amount of five (5) times his base annual salary (as
may be changed from time to time), payable to such beneficiary or beneficiaries
as Xxxxxx may designate. Xxxxxx shall be the owner of such life insurance
policy.
7. Disability. If Xxxxxx shall become physically or mentally disabled
during the term of this Agreement to the extent that he shall be unable to
perform his duties and services for and on behalf of the Company, and such
disability shall continue for a period in excess of one (1) month, the salary
then payable to Xxxxxx pursuant to the foregoing paragraph 5(a) shall be paid to
Xxxxxx for the balance remaining on the present contract term reduced by any
monthly disability insurance benefits he may receive from other disability
insurance purchased on his behalf by the Company.
8. Confidentiality. The Company possesses and will continue to possess
information which has been created, discovered, developed by or otherwise become
known to the Company (including information discovered or made available by
subsidiaries, affiliates or joint ventures of the Company or in which property
rights have been assigned or otherwise conveyed to the Company) which
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information has commercial value to the Company, including but not limited to
trade secrets, innovations, processes, computer codes, data, know how,
improvements, discoveries, developments, techniques, marketing plans,
strategies, costs, customers, client lists and recipes, or any information
Xxxxxx has reason to know the Company would like to treat as confidential for
any purpose, such as maintaining a competitive advantage or avoiding undesired
publicity, whether or not developed by Xxxxxx ("Confidential Information").
Unless previously authorized in writing or instructed in writing by the Company,
Xxxxxx will not, at any time, disclose to others, or use, or allow anyone else
to disclose or use any Confidential Information (except as may be necessary in
the performance of Xxxxxx'x employment with the Company), unless and until and
then only to the extent that, such Confidential Information has been
ascertainable or obtained from public or published sources or was available to
the Company on a non-confidential basis prior to any disclosure, provided that
the source of such material is or was not bound by any obligation of
confidentiality to the Company.
9. Restrictive Covenants. Xxxxxx acknowledges that because of his skills,
his position with the Company and the Confidential Information to which he will
be provided on account of such employment with the Company, competition by
Xxxxxx with the Company would damage the Company in a manner which cannot
adequately be compensated by damages or in action at law. In view of such
circumstances, because of the Confidential Information obtained by, or disclosed
to Xxxxxx as a material inducement to the Company to enter into this Agreement
and to compensate Xxxxxx, as described in paragraph 5, as well as provide him
with additional benefits as provided herein and other good and valuable
consideration, Xxxxxx covenants and agrees that:
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(a) Non-Competition. During Xxxxxx'x employment with the Company and for a
period of two (2) years thereafter, Xxxxxx shall not, directly or indirectly in
any geographic areas in which the Company is engaged in Business at the time
Xxxxxx'x employment terminates, participate or assist any other person or entity
in any manner or capacity in the pizza food industry.
(b) Non-Solicitation of Employees. During Xxxxxx'x employment with the
Company and for a period of two (2) years thereafter, Xxxxxx shall not, directly
or indirectly solicit for employment any employee of the Company.
(c) Definitions. For purposes of this Agreement, the term "directly or
indirectly" shall be construed in its broadest sense and shall include the
activities of the members of the Xxxxxx'x immediate family or any partnership,
corporation or other entity under the control of Xxxxxx.
(d) Reasonable Limitations. Given the important nature of the position
Xxxxxx has held and will hold with the Company, the nature of the Company's
business and the sensitive nature of the information and duties Xxxxxx will have
with the Company, the parties acknowledge that the limitations, including but
not limited to the scope of activities prohibited, their geographic area covered
and the time limitations, are reasonable. In the event of an actual or
threatened breach by Xxxxxx of the provisions of paragraphs 8 and 9 of this
Agreement, the Company shall be entitled to an injunction restraining Xxxxxx
from such breach. Nothing herein, however, shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such actual or
threatened breach, including the recovery of damages from Xxxxxx. If Xxxxxx
violates any of the covenants in paragraph 9 of this Agreement, the term and the
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covenant violated shall be automatically extended to a like period of time from
the date on which Xxxxxx ceases such violation or from the date of the entry of
a court of competent jurisdiction of an order or judgment enforcing such
covenance, whichever period is later.
10. Termination.
(a) The Company may, at its option, terminate this Agreement at any time
upon written notice to Xxxxxx for just cause. Just causes is defined as:
(i) Xxxxxx'x misuse or embezzlement of funds belonging to the
Company, conviction of a felony or crime involving moral
turpitude or use of alcohol or drugs in such a manner as will
injure or adversely effect the reputation of the Company or its
employees, customers, agents, officers or directors;
(ii) Xxxxxx'x absence from his employment, other than by disability
for which salary is continued pursuant to paragraph 7, for a
period of ninety (90) consecutive days or more;
(iii) Provisions of this Agreement, gross negligence or willful
malfeasance in discharging his obligations hereunder and such
acts and their consequences are not remedied within ten (10) days
or such longer reasonable period of time designated by the
Company after written notice hereof has been given to Xxxxxx.
(b) This agreement shall not be terminated for any reason(s) except as
enumerated above except by mutual agreement or by the death of Xxxxxx.
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(c) In the event of the death of Xx. Xxxxxx during the term of this
agreement, Xx. Xxxxxx'x heirs shall continue to receive 12 months salary at the
same rate of pay he was receiving immediately prior to his death.
(d) Upon the termination of this Agreement for any of the reason specified
in 10(a) above, Xxxxxx shall be entitled to receive only the compensation
accrued but unpaid as of the date of the termination hereof and shall not be
entitled to additional compensation except as expressly provided in this
Agreement. For any termination for any other reason the Company must pay Xx.
Xxxxxx a lump sum payment, on the day of termination, an amount equal to five
(5) times Xx. Xxxxxx'x then current annual salary plus the remaining amounts due
pursuant to the terms of this contract for the balance of the contract term.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by certified mail to his
residence, in the case of Xxxxxx, or to the business address of the Company, in
the case of the Company.
12. Waiver and Breach of Severability. The waiver by the Company of a
breach of any provision of this Agreement by Xxxxxx shall not operate or be
construed as a waiver of any subsequent breach by Xxxxxx. In the event any
provision of this Agreement is found to be invalid or unenforceable, it may be
severed from the Agreement and the remaining provisions of the Agreement shall
continue to be binding and effective.
13. Entire Agreement. This instrument constitutes the entire Agreement of
the parties to the Agreement and the subjects contained herein. It may not be
changed orally, but only by an Agreement in writing signed by the party against
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whom enforcement of any waiver, change, modification, extension or discharge is
sought.
14. Binding Agreement and Governing Law. This Agreement shall be binding
upon and shall inure to the benefit of the parties and the successors in
interest and shall be construed in accordance with and governed by the laws of
the State of Indiana.
15. Survival. Upon termination of this Agreement, the obligations of Xxxxxx
in paragraphs 8 and 9 shall continue in effect as provided therein.
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first written above.
NOBLE ROMAN'S, INC.
By: /s/ A. Xxxxx Xxxxxx
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Printed: A. Xxxxx Xxxxxx
Title: President
"COMPANY"
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
"XXXXXX"
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