EXHIBIT 10.2
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT is made and is effective as of April 30,
1998, by and between XXXXX X. XXXX (the "Xxxx") and BOSTON CHICKEN, INC., a
Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Xxxx has been serving as the President and Co-Chairman of the
Board of Directors (the "Board") of the Company, and has tendered his
resignation as an employee, officer and director of the Company effective as of
the date hereof.
WHEREAS, Xxxx and the Company have made certain agreements with
respect to such resignation.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by the parties hereto as follows:
1. Outstanding Options. The Company confirms that the Stock Option Committee of
the Board has taken all necessary action so that all stock options awarded to
Xxxx under the Company's stock option plans or otherwise to purchase shares of
the Company's Common Stock shall continue to vest as provided in Exhibit A
attached hereto, regardless of the status of Xxxx'x relationship with the
Company. Further, all stock options awarded to Xxxx will remain outstanding and
exercisable by him until November 10, 2001, and the terms and conditions of each
such stock option are hereby modified to the extent necessary to provide
therefor.
2. PFCI Note. The Company agrees to prepay in full all amounts then-owing
pursuant to the Promissory Note (the "PFCI Note") delivered by the Company to
Xxxx dated August 27, 1997 and modified on November 7, 1997 in the principal
amount of $1,590,740 within ten business days after the Company receives one or
more infusions of capital aggregating $70,000,000. Except as provided in the
preceding sentence, all other terms of the PFCI Note shall remain in full force
and effect.
3. Indemnification.
A. Indemnification. In the event Xxxx is or has been made a party or is or
has been threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative
(hereinafter a "Proceeding"), by reason of the fact that he is or was a
director, officer, or employee of, or consultant to, the Company, or is or was a
director, officer, or
employee of, or consultant to, the Company and is or was serving at the request
of the Company as a director, officer, or employee of another corporation or of
a partnership, limited liability company, joint venture, trust, or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such Proceeding is alleged action or inaction in an official
capacity as such a director, officer, employee, consultant, or in any other
capacity while serving as such a director, officer, employee, or consultant, he
shall be indemnified and held harmless by the Company to the fullest extent
authorized by applicable law as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights then said law
permitted the Company to provide prior to such amendment), against all expense,
liability, and loss (including, without limitation, attorneys' fees for counsel
selected by Xxxx, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by Xxxx in
connection therewith, and such right to indemnification shall inure to the
benefit of Xxxx'x heirs, executors, and administrators. The right to
indemnification conferred hereunder shall include the right to be paid by the
Company the expenses incurred in defending any such Proceeding in advance of its
final disposition; provided, however, that if applicable law requires, the
payment of such expenses incurred by Xxxx in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
Xxxx while a director or officer, including, without limitation, service to an
employee benefit plan), in advance of the final disposition of a Proceeding
shall be made only upon delivery to the Company of an undertaking, by or on
behalf of Xxxx, to repay all amounts so advanced if it shall ultimately be
determined that Xxxx is not entitled to be indemnified under this Section or
otherwise. The Company agrees to notify Xxxx promptly upon learning of any
Proceeding to which Xxxx has been made a party or is or has been threatened to
be made a party or is involved.
B. Nonexclusive Rights. The right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Section 3 shall not be exclusive of any other right which Xxxx
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation of the Company, Bylaw, agreement, vote of stockholders or
disinterested directors of the Company, or otherwise.
4. Severability. The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or enforceability of any other
provisions hereof.
5. Notices. All notices, demands, and requests required or permitted to be
given under the provisions of this Agreement, shall be deemed duly given if made
in writing and delivered personally or mailed by postage prepaid, certified or
registered mail, return receipt requested, accompanied by a second copy sent by
ordinary mail, which notices shall be addressed as follows:
If to Xxxx: Xxxxx X. Xxxx
______________________________
______________________________
If to the Company: Boston Chicken, Inc.
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: General Counsel
By notifying the other party in writing, given as aforesaid, either party may
from time to time change his or its address or the name of any person to whose
attention notice is to be given, or may add another person to whose attention
notice is to be given, in connection with notice to such party.
6. Integration. This Agreement, along with the other documents referred to
herein, contains the entire agreement of the parties hereto with respect to its
subject matter and supersedes all previous agreements between the parties
hereto, written or oral, express or implied, covering the subject matter hereof.
No representations, inducements, promises, or agreements, oral or otherwise, not
embodied herein, shall be of any force or effect.
7. No Waiver. No waiver or modification of any of the provisions of this
Agreement shall be valid unless in writing and signed by or on behalf of the
party granting such waiver or modification. No waiver by any party of any breach
or default hereunder shall be deemed a waiver of any repetition of such breach
or default or shall be deemed a waiver of any other breach or default, nor shall
it in any way affect any of the other terms or conditions of this Agreement or
the enforceability thereof. No failure of either party to exercise any power
given him or it hereunder or to insist upon strict compliance by the other party
with any obligation hereunder, and no custom or practice at variance with the
terms hereof, shall constitute a waiver of the right of either such party to
demand strict compliance with the terms hereof.
8. Amendment. This Agreement may not be supplemented or rescinded except by
instrument in writing signed by the parties hereto after the date hereof.
Neither this Agreement nor any of the rights of either of the parties hereunder
may be terminated except as provided herein.
9. Governing Law. This Agreement shall be governed by and construed, and the
rights and obligations of the parties hereto enforced, in accordance with the
laws of the State of Colorado, without regard to conflict of law principles.
10. Headings. Section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BOSTON CHICKEN, INC.
By: /s/ Xxxxxxx Xxxxxx /S/ Xxxxx X. Xxxx
------------------------------ --------------------------
Its: Sr. V.P. & General Counsel XXXXX X. XXXX
XXXXX X. XXXX
000 00xx Xxxxxx
Xxxxxxx, XX 00000
Boston Chicken, Inc. Employee Stock Option Plan Run Date 04/16/98
As of 04/16/98 Page No. 1
Date of Options Options Option Date of Available
Grant Type of Grant Granted Outstanding Price Expir. Options Vested For Exercise
-------- ------------- ------- ----------- ------- -------- ------------------ ------------
03/04/92 240,000 240,000 $1.4584 03/04/02 243,000 (Current) 240,000
05/01/92 225,000 225,000 $1.6667 05/01/02 225,000 (Current) 225,000
01/15/93 112,500 112,500 $3.3334 01/15/03 112,500 (Current) 112,500
11/10/97 25,000 25,000 $8.9375 11/10/07 0 (Current) 0
25,000 on 11/10/98
11/10/97 30,252 30,252 $8.9375 11/10/07 0 (Current) 0
15,126 on 11/10/98
15,126 on 11/10/99
11/10/97 111,758 111,758 $8.9375 11/10/07 0 (Current) 0
167,010 37,252 on 11/10/98
37,253 on 11/10/99
37,253 on 11/10/00
------- ----------- ------------
Shares 744,510 744,510 577,500
This summary supercedes any and all summaries previously delivered, is for
informational purposes only, and does not create any entitlement, ownership,
or other right to options or shares of Boston Chicken, Inc. regardless of
whether options or shares are listed above. Options may only be granted in
accordance with the Company's Employee Stock Option Plan, the Company's Stock
Option Plan for Non-Employee Directors, or action of the Company's Board of
Directors or other appropriate body are subject to the terms, vesting schedule,
and conditions of such plan or grant.
