EXHIBIT 10.25
TERMINATION AGREEMENT
This Agreement (the "Agreement") is made this 26th day of December 1997, by
and between Einstein/Noah Bagel Corp., a Delaware corporation (hereinafter
referred to as the "Company"), and Xxxx X. Xxxxxxxx (hereinafter referred to as
"Xxxxxxxx").
RECITALS
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Xxxxxxxx has served as Chief Executive Officer, and a director, of, the
Company. Xxxxxxxx resigned as Chief Executive Officer and as a director of the
Company effective December 26, 1997. In consideration of the mutual covenants
hereinafter set forth and in full satisfaction of any claim Xxxxxxxx may have or
assert arising from or in any way relating to his employment or engagement with,
and separation from, the Company, the parties hereto agree as follows:
COVENANTS
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In consideration of the mutual promises contained herein, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. TERMINATION PAYMENTS. In full satisfaction of any obligations the
Company may have to Xxxxxxxx relating in any way to his employment or engagement
with, and separation from, the Company, the Company agrees to pay to Xxxxxxxx
(a) the sum of $200,000, which shall be payable to Xxxxxxxx on the later of (i)
January 5, 1998 or (ii) five business days after the expiration of the
revocation period described in Section 11(c) hereof, and (b) the sum of
$360,000, which shall be payable in twenty-six (26) substantially equal
installments over the one-year period commencing upon the expiration of the
revocation period described in Section 11(c) hereof. The Company shall be
entitled to deduct from all such payments all applicable FICA contributions,
federal and state income taxes and any other payroll taxes. The Company shall
have the option to pay the amounts provided for herein in registered shares of
common stock, $.01 par value per share, of the Company.
2. CONFIDENTIALITY. Xxxxxxxx acknowledges that he is a party to the
Confidentiality and Non-Compete Agreement dated as of the date hereof, a copy
of which is attached hereto as Schedule A (the "Confidentiality Agreement") and
agrees to comply therewith. Xxxxxxxx acknowledges that he has entered into such
Confidentiality Agreement in consideration in part for the Company's promises in
this Agreement.
3. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS. All inventions,
innovations, designs, ideas and product developments developed or conceived by
Xxxxxxxx, solely or jointly with others, whether or not patentable or
copyrightable, at any time during the employment or engagement of Xxxxxxxx by
the Company and that relate to the actual or then-currently planned business
activities of the Company or its subsidiaries (collectively, the "Developments")
and all of Xxxxxxxx'x right, title and interest therein, shall be the exclusive
property of the Company. Xxxxxxxx hereby assigns, transfers and conveys to the
Company all of his right, title and interest in and to any and all such
Developments. At any time and from time to time, upon the request of the
Company, Xxxxxxxx shall execute and deliver to the Company any and all
instruments, documents and papers, give evidence and do any and all other acts
that, in the opinion of counsel for the Company, are or may be necessary or
desirable to document such transfer or to enable the Company to file and
prosecute applications for and to acquire, maintain and enforce any and all
patents, trademark registrations or copyrights under United States or foreign
law with respect to any Developments or to obtain any extension, validation,
reissue, continuance or renewal of any such patent, trademark or copyright. The
Company will be responsible for the preparation of any such instruments,
documents and papers and for the prosecution of any such proceedings and will
reimburse Xxxxxxxx for all reasonable expenses incurred by him in compliance
with the provisions of this Section.
4. COVENANT RESTRICTING SOLICITATION. For a period of two years from the
date hereof Xxxxxxxx shall not, directly or indirectly, solicit or attempt to
solicit for employment any person who is an employee of the Company on the date
of Xxxxxxxx'x date of termination.
5. DISPARAGEMENT. Xxxxxxxx and the Company each agree not to disparage,
or otherwise speak negatively of, the other. The Company further agrees to use
reasonable best efforts to cause its directors not to disparage, or otherwise
speak negatively, of Xxxxxxxx.
6. EQUITABLE RELIEF. Each of the parties acknowledges that the
restrictions contained in the Confidentiality Agreement and Sections 3, 4 and 5
are reasonable and necessary to protect the legitimate interests of the Company
and Xxxxxxxx, and that any violation of any provisions of those Sections by a
party will result in irreparable injury to the other party. Each party also
acknowledges that the other party shall be entitled in enforcing the provisions
of those Sections to obtain temporary and permanent injunctive relief, without
the necessity of proving actual damages, and to an equitable accounting of all
earnings, profits and other benefits arising from any such violation, which
rights shall be cumulative of and in addition to any other rights or remedies to
which such party may be entitled.
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7. STOCK OPTIONS. (a) Xxxxxxxx has been granted stock options on shares
of the Company, as set forth on Schedule B attached hereto (collectively, the
"Options"). The Options shall continue to vest for a period of one year from
the date hereof and shall continue to be exercisable for a period of two years
from the date hereof, in each case pursuant to and in accordance with the terms
thereof; provided, however, that such options shall terminate immediately and be
of no further force and effect upon any material breach by Xxxxxxxx of the
Confidentiality Agreement or Sections 3, 4 or 5 hereof. In the event that the
Company intends to terminate Xxxxxxxx'x options pursuant to this Section 7(a),
in the event of a material breach that is capable of being cured, the Company
shall first provide Xxxxxxxx written notice thereof, which notice shall set
forth in reasonable detail Xxxxxxxx'x breach of covenants hereunder. Upon
receipt of such notice Xxxxxxxx shall have ten (10) days in which to cure any
such alleged breach which is capable of being cured.
(b) Xxxxxxxx shall not be eligible for any additional stock option
grants after the date hereof.
8. XXXXXXXX REPRESENTATIONS. Xxxxxxxx represents and warrants to the
Company that (i) he is free to enter into this Agreement and (ii) this Agreement
does not violate the terms of any other agreement to which Employee is a party
or by which he is bound.
9. WAIVER. Failure by either party to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or remedy hereunder at any one or more times be
deemed a waiver or relinquishment of such right or remedy at any other time or
times.
10. SEVERABILITY. Each section, paragraph, term and provision of this
Agreement, and any portion thereof, shall be considered severable and if for any
reason any such portion of this Agreement is held to be invalid, contrary to, or
in conflict with any applicable present or future law or regulation in a final,
unappealable ruling issued by any court, agency or tribunal with competent
jurisdiction in a proceeding to which the Company is a party, that ruling shall
not impair the operation of, or have any other effect upon, such other portions
of this Agreement as may remain otherwise intelligible, which shall continue to
be given full force and effect and bind the parties hereto. Xxxxxxxx agrees
that if any provisions hereof shall be adjudicated to be invalid or
unenforceable in whole or in part, such modifications made to this Agreement as
a result of such adjudication shall be effective only in the particular
jurisdiction in which such adjudication is made. To the extent any provision
hereof is deemed unenforceable by virtue of its scope but may be enforceable by
limitations thereon, the parties hereto agree that the same shall be enforceable
to the fullest extent permissible under the laws and public policies applied in
such jurisdiction in which the enforcement is sought. The
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parties hereto hereby authorize any court of competent jurisdiction to modify
the restrictive covenants to the extent necessary to make the same enforceable.
11. RELEASES. (a) In partial consideration for the termination payments
provided for in Section 1 hereof, Xxxxxxxx acknowledges and agrees that he, for
himself and his successors, assigns and legal representatives, fully and forever
releases and discharges the Company, its subsidiaries and area developers and
their respective officers, directors, employees, agents, representatives and
insurers (collectively, the "Company Released Parties") from and against any and
all claims, liabilities, demands, obligations, damages, actions, or causes of
action of any nature or type whatsoever, whether or not presently known,
including future claims, liabilities, demands, obligations, damages, actions or
causes of action if based in whole or part on acts or omissions occurring before
he delivers this release to the Company, in any way relating to his employment
or engagement with, his separation from, or his investment in the Company,
except, in each case, for his rights described in this Agreement, rights under
the Company's Director and Officer Insurance Policy, under the indemnification
provisions of the Company's Certificate of Incorporation and under the
provisions of Section 145 of the Delaware General Corporation Law ("DGCL"), in
each case as they relate to his duties and service as an officer and director of
the Company, if any. Xxxxxxxx acknowledges and agrees that the legal rights and
claims that he is giving up include, but are not limited to, his rights, if any,
under all state and federal statutes that protect him from discrimination in
employment on the basis of sex, race, national origin, religion, disability and
age, such as the Age Discrimination in Employment Act of 1987, Title VII of the
Civil Rights Act of 1964, as amended, the Rehabilitation Act of 1973, the
Americans With Disabilities Act, the Family and Medical Leave Act, the Equal Pay
Act, and the Colorado Civil Rights Act, as well as all common law rights and
claims, such as breach of contract, express or implied, tort, whether negligent
or intentional, wrongful discharge and any claim for fraud, omission or
misrepresentation against the Company Released Parties.
(b) The Company acknowledges and agrees that it, for itself and its
successors and assigns fully and forever releases and discharges Xxxxxxxx, his
heirs and legal representatives from and against any and all claims,
liabilities, demands, obligations, damages, actions, or causes of action of any
nature or type whatsoever, whether or not presently known, including future
claims, liabilities, demands, obligations, damages, actions or causes of action
if based in whole or in part on acts or omissions occurring before it delivers
this release to Xxxxxxxx, except, in each case, for the Company's rights
described in this Agreement, the Company's rights under the Company's Director
and Officer Insurance policy and the Company's right under Section 145 of the
DGCL to be reimbursed by Xxxxxxxx, if required by law, for expenses of any
litigation advanced to him in defense of such litigation, including the
Undertaking relating to reimbursement of expenses incurred in connection with
Case No. 94-N-1614 entitled In re Einstein/Noah Bagel Corp. Securities
Litigation.
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(c) Xxxxxxxx acknowledges that he has up to 21 days after he has
received this Agreement to consider whether to sign it. In addition, after he
has signed and delivered this Agreement to the Company, it will not be effective
or enforceable until the end of a seven-day revocation period beginning the day
that he delivers it to the Company. During this seven-day period, Xxxxxxxx may
revoke this Agreement, without reason and in his sole judgment, but he may do so
only by delivering a written statement of revocation to the Company as provided
in Section 17. If the Company does not receive Employee's written statement of
revocation by the end of the revocation period, then this Agreement will become
legally enforceable and Xxxxxxxx may not thereafter revoke it. Any termination
of this Agreement in accordance with its terms shall not effect the validity of
the releases contained in this Section 11.
(d) Xxxxxxxx acknowledges that he has been fully advised of the
contents of Section 1542 of the Civil Code of the State of California and he
hereby expressly waives all rights and benefits under that section and under any
law of any jurisdiction of similar effect with respect to his release of any
claims he may have against the Company. Section 1542 reads as follows:
"Section 1542. (General Release Claims Extinguished). A general
release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement
with the debtor."
12. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the Company, its successors and assigns. This Agreement
shall inure to the benefit of and be enforceable by the personal or legal
representatives, executors, administrators, successors, assigns, heirs,
distributees and/or legatees of Xxxxxxxx, except that duties and
responsibilities of Xxxxxxxx under this Agreement are personal to him, and are
not subject to assignment or transfer by him.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties concerning the termination of Xxxxxxxx'x employment with the
Company. This Agreement may not be modified or rescinded except by a written
agreement to such effect signed by both parties.
14. ARBITRATION. Any controversy, claim or dispute between the parties
relating to or arising out of this Agreement will be finally settled by
arbitration governed by the then current Commercial Arbitration Rules of the
American Arbitration Association in accordance with the terms of this Agreement,
provided, however, that the Company shall not be prevented from seeking or
obtaining in any court of competent jurisdiction appropriate injunctive relief
in the event of a breach of the Confidentiality Agreement or any of the
provisions of Sections 3, 4 or 5 of this Agreement. Any arbitration will be
conducted in Denver, Colorado by a panel of three neutral arbitrators.
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15. CONFIDENTIALITY AND PUBLICITY. (a) The parties agree to maintain the
confidentiality of this Agreement and the terms hereof (the "Confidential
Information"), except that (i) either party may make disclosures of Confidential
Information that has become publicly known other than by an action of the
disclosing party, or a person acting on their behalf, in violation of the terms
of this Agreement, (ii) the Company may make such disclosure of Confidential
Information as it may determine to be required under applicable securities laws
or the rules of any applicable securities exchange or quotation system, or in
connection with the preparation of any disclosure document to be distributed to
investors, lenders or similar persons, (iii) either party may disclose
Confidential Information that it may be legally compelled to disclose (after
using reasonable best efforts to notify the other party hereto in advance of
such disclosure, and reasonably cooperating in efforts of the other party to
resist such disclosure), (iv) either party may disclose such Confidential
Information as may be required to permit it to enforce the provisions of this
Agreement, and (v) either party may disclose Confidential Information to its
attorneys, accountants or other professional advisors.
(b) The Company agrees to provide Xxxxxxxx to the extent he is
available, the opportunity to review prior to its issuance any press release to
be issued by the Company that mentions his name, provided, however, that this
section shall not be interpreted to limit Company's ability to issue any press
release that mentions Xxxxxxxx'x name that the Company deems necessary, based on
the advice of its counsel, with or without his review.
(c) Xxxxxxxx agrees to provide the Company an opportunity to review
any press release or other public communication or statement he may make
regarding the Company prior to the issuance of such press release or, to the
extent practicable, making of such communication or statement.
16. FUTURE COOPERATION. Xxxxxxxx agrees to cooperate in good faith
with the Company in any third-party litigation instituted by or against the
Company with respect to matters which occurred during the period in which
Xxxxxxxx was employed by or served as a director or officer of the Company. The
Company agrees to reimburse Xxxxxxxx or reasonable expenses incurred by him in
connection with such cooperation with respect to such matters.
17. NOTICES. All notices, request, demands, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or by electronic transmission. If mailed,
first class, certified mail, postage prepaid, or sent by reliable overnight
delivery service and addressed as follows, or at such other addresses as the
parties hereto may from time to time designate in writing, such notices,
requests, demands, and other communications shall be deemed delivered three
business days after being so duly posted:
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to the Company: Einstein/Noah Bagel Corp.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
to Employee: Xxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000)-000-0000
18. GOVERNING LAW. This Agreement and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
laws of the State of Colorado applicable to contracts made and to be performed
therein.
19. SURVIVAL. The parties acknowledge and agree that the covenants
contained in this Agreement and the Confidentiality Agreement shall survive the
termination of Xxxxxxxx'x employment or engagement with the Company.
20. REGISTRATION OF CERTAIN SHARES. The Company agrees to include in its
next resale registration statement covering shares of its common stock 344,673
shares of common stock of the Company subject to options granted to Xxxxxxxx by
Boston Chicken, Inc. and 32,258 restricted shares of common stock owned by
Xxxxxxxx.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
EMPLOYEE: EINSTEIN/NOAH BAGEL CORP.
By: /s/ Xxxx X. Xxxxxxx
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/s/ Xxxx X. Xxxxxxxx Its: Senior Vice President
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Xxxx X. Xxxxxxxx
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