AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of the 24th day of October, 1996, by and between ROADHOUSE GRILL, INC.,
a Florida corporation (the "Company"), and XXXX XXXXX XXXXX, III ("Executive").
BACKGROUND
Executive is employed by the Company as its President pursuant to that
certain Employment Agreement dated as of October 1, 1994 ("Old Agreement"),
which the Company and Executive desire to amend and supersede as hereinafter
provided.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
1. EMPLOYMENT. Effective as of the date hereof, the Old Agreement is
hereby amended and superseded in its entirety by this Agreement, and, as of such
date, upon the terms and conditions hereinafter set forth, the Company hereby
continues Executive's employment as its President and Executive hereby accepts
such employment.
2. TERM. The term ("Term") of Executive's employment hereunder
shall commence on the date hereof and shall end at 5:00 p.m. on October 23,
1999, or such earlier date upon which such employment is terminated in
accordance with the terms of this Agreement.
3. DUTIES AND SERVICES. Executive agrees to serve the Company as its
President for the duration of the Term faithfully and diligently under the
direction of the Board Directors of the Company, and to perform such duties as
are customarily associated with such position and such additional executive
duties as the Board of Directors of the Company shall reasonably request,
PROVIDED that such duties shall be consistent with those normally required of
presidents of comparable companies. Executive shall be required to devote his
best efforts, attention, knowledge and skill to the performance of his duties
hereunder. Executive shall at all times perform his duties hereunder in a
professional manner, in good faith, and in the best interest of the Company.
Executive shall devote substantially his full business time and efforts to the
performance of his duties hereunder. Executive shall be entitled to actively
pursue investment opportunities ("Investment Opportunities") during the Term, so
long as such activity does not materially interfere with the performance of
Executive's duties under this Section 3 and provided such pursuits do not
violate Section 8 hereof. If such Investment Opportunity materially interferes
with Executive's duties under this Section 3, Company may terminate Executive's
employment for Cause and pursuant to Section 5 hereof. No Investment Opportunity
shall be deemed to be a "business opportunity" of the Company and the Company
will have no legal or beneficial right, claim or interest in any Investment
Opportunity except as Executive may otherwise agree in writing, even if the
Investment Opportunity was conceived or developed during Executive's employment
with the Company, nor shall Executive have any fiduciary or other duty to
disclose or offer to Company any such Investment Opportunity.
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4. COMPENSATION. In exchange for the services to be rendered
hereunder by Executive, the Company hereby agrees to compensate Executive with
the following ("Compensation"):
A. SALARY. The Company agrees to pay Executive a
salary ("Salary") at the rate of Two Hundred Thousand Dollars ($200,000) per
annum, payable in accordance with the Company's usual payroll practices, but not
less often than bi-weekly.
B. BONUS. In addition to Salary, Executive shall be
entitled to receive "Bonuses" determined and payable in accordance with the
following:
(1) Executive shall be entitled to a Bonus in
the amount of One Hundred Thousand Dollars ($100,000), payable within ninety
(90) days after the Company's 1996 fiscal year, if Net Income (as hereinafter
defined) for such fiscal year exceeded the Net Income for the immediately
preceding fiscal year or if the net loss as reported by the Company for such
fiscal year is less than the net loss for the immediately preceding fiscal year.
Thereafter, Executive shall be entitled to a Bonus in the amount of One Hundred
Thousand Dollars ($100,000), payable within ninety (90) days after each
subsequent fiscal year of the Company ending during Executive's employment
hereunder, if the Company has Net Income and such Net Income for such fiscal
year exceeded the Net Income for the immediately preceding fiscal year.
(2) Executive shall also be entitled to a
Bonus, without reduction or discount, of One Hundred Thousand Dollars
($100,000), payable within ninety (90) days after the end of each fiscal year
begun but not concluded prior to the expiration or termination of Executive's
employment hereunder (regardless of the reason therefor), if Net Income for the
portion of the fiscal year during which the Executive was employed hereunder
("Employment Period") exceeds Net Income for the same period of the immediately
preceding fiscal year, unless, Executive's employment was terminated by the
Company pursuant to Section 5.A.(1) hereof or by Executive unilaterally other
than in accordance with Section 6 hereof during such fiscal year, or such
termination was a Wrongful Termination (in which event Bonus shall be paid as
set forth in Section 5).
(3) In the event that any fiscal year beginning
or ending during the Term hereof is less than three hundred sixty five (365)
days in duration ("Short Year").
(a) For purposes of determining whether
Net Income in the Short Year was exceeded by the Net Income in the subsequent
fiscal year, Net Income for such fiscal year shall be deemed to be the amount of
the Net Income for the twelve (12) month period ending on the last day of the
Short Year; and
(b) For purposes of determining whether
Net Income for the Short Year exceeded the preceding fiscal year, Net Income for
the Short Year shall be deemed to exceed the Net Income for the preceding year
if it exceeded Net Income for the same period of the preceding fiscal year,
unless Executive's employment hereunder terminated during the Short Year (in
which
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event Section 4.B.(2) shall apply), and if Net Income for the Short Year exceeds
the Net Income for the immediately preceding year (as so determined), Executive
shall be entitled to a Bonus of One Hundred Thousand Dollars ($100,000)
multiplied by the percentage of a full three hundred sixty five (365) day year
that the Short Year represents.
(4) For purposes of this Agreement, "Net
Income" for any period shall be net income before taxes determined in accordance
with Generally Accepted Accounting Principles based upon the Company's audited
financial statements for such period.
C. OTHER COMPENSATION AND BENEFITS.
(1) The Company shall provide Executive throughout the Term
with health insurance and dental insurance for Executive, his spouse and
children, and all other employee benefits made available to executives of the
Company including any pension, profit-sharing, bonus, or stock option plan,
life, health, medical, dental, hospitalization or surgical insurance plan or
policy, and any vacation or fringe benefit plans or programs, whether now
existing or hereafter established (collectively, "Executive Benefits").
(2) Nothing contained herein shall be deemed to be a waiver by
Executive of, or to diminish or modify, any vested rights which Executive may
have or may hereafter acquire under any employee benefit plan of the Company.
Without limiting the foregoing, Executive shall be entitled to stock options as
provided in the Stock Option Agreements attached as composite Exhibit A.
(3) It is contemplated that, in connection with his employment
hereunder, Executive will incur business, entertainment and travel expenses. The
Company agrees to reimburse Executive in full for all reasonable, ordinary and
necessary business, entertainment and other related expenses, including travel
expenses, incurred or expended by him incident to the performance of his duties
hereunder, and incurred or expended in accordance with the Company's policies
with respect to such expenses, upon submission by Executive to the Company of
such vouchers or expense statements satisfactorily evidencing such expenses as
may be reasonably required by the Company.
(4) Executive shall be entitled to at least four (4) weeks of
paid vacation (taken consecutively or in segments) each year during the Term.
Vacation time that is not used in a year will not be carried over to any
subsequent year.
5. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
A. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate Executive's employment under this Agreement prior to the
expiration of the Term only for Cause (as hereinafter defined) or upon
Executive's death or Permanent Disability.
(1) "Cause" for the Company to terminate
Executive's employment shall exist only if any of the following occur subsequent
to the date hereof.
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(a) Executive, other than as a result
of death or any mental or physical, temporary or permanent incapacity or
disability, shall have failed to perform his material duties hereunder;
PROVIDED, HOWEVER, that the Company shall first have notified Executive in
writing and in reasonable detail as to the manner in which Executive has so
failed to perform his duties hereunder, and Executive shall have failed to cure
such nonperformance within thirty (30) days thereafter or, if cure cannot
reasonably be completed within such period, Executive shall have failed to
commence cure during such period and to thereafter diligently pursue such cure
to completion;
(b) Executive shall have unlawfully
sexually harassed employees;
(c) Executive shall have been convicted
of any felony or found guilty of fraud; or
(d) Executive shall have engaged in
illegal drug use.
(2) Executive shall be deemed to have a
"Permanent Disability" if Executive is not able to perform his essential duties
hereunder, notwithstanding reasonable accommodation by Company, for a period of
three (3) consecutive months or in excess of one hundred eighty (180) days in
any one (1) year period, as a result of an illness or other physical or mental
disability.
(3) In the event the Company elects to
terminate Executive's employment pursuant to this Section 5, the Company shall
give written notice to such effect to Executive, which notice shall describe in
reasonable detail the basis for such termination, and Executive's employment
under this Agreement shall thereupon terminate as of the date said notice is
given.
(4) Any termination of Executive's employment
by the Company other than in strict accordance with this Section 5 shall be
deemed a material breach of this Agreement by the Company and a "Wrongful
Termination" of Executive's employment hereunder. The Company recognizes that,
in the event of a Wrongful Termination of Executive, Executive will be subject
to loss and damage, the monetary value of which will not be readily
ascertainable, and that there exists only a limited number of employment
opportunities comparable to the position held by Executive with the Company.
Therefore, in the event of a Wrongful Termination, Executive shall not be
required, either in mitigation of damages by the terms of this Agreement or
otherwise, to seek or accept other employment and the Company shall pay to
Executive, as liquidated damages and not as a penalty (in addition to the
compensation to which Executive is entitled through the date of such termination
and any benefits in which Executive has a vested right under the terms and
conditions of the plan or program pursuant to which such benefits were granted)
all of the following:
(a) continuation of Executive's Salary
until October 23, 1999, payable not less often than bi-weekly;
(b) continuation of all the Executive
Benefits until October 23, 1996; and
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(c) a Bonus of One Hundred Thousand
Dollars ($100,000) for the fiscal year in which termination occurred and Bonuses
of (i) One Hundred Thousand Dollars ($100,000) for each subsequent fiscal year
that ends prior to October 23, 1999, payable within ninety (90) days after the
end of such fiscal year and (ii) for the fiscal year (if any) that begins
subsequent to the date of the termination of Executive's employment hereunder
but ends after October 23, 1999, a Bonus in an amount equal to One Hundred
Thousand Dollars ($100,000) multiplied by the percentage of a full three hundred
sixty five (365) day year that the period between the commencement of such
fiscal year and the end of the Term represents, payable within ninety (90) days
after the end of such fiscal year.
If Executive terminates his employment hereunder for Cause as defined
in Section 6 hereof, such termination shall be deemed to constitute a Wrongful
Termination of Executive for purposes of this Section 5.
6. TERMINATION OF EXECUTIVE'S EMPLOYMENT BY EXECUTIVE. Executive may
terminate his employment hereunder for "Cause" (which, as it pertains to
termination by Executive, is defined below) or upon his death or Permanent
Disability. For purposes of this Agreement, "Cause" for Executive's termination
of his employment hereunder shall exist only if any of the following have
occurred:
A. the Company shall have failed to pay any amount due
Executive hereunder within ten (10) days of written notice thereof by Executive,
or failed to cure a breach of any of its material obligations under this
Agreement within thirty (30) days of written notice thereof by Executive; or
B. Executive is assigned duties inconsistent with his
position, or the Company withdraws any of his material responsibilities.
7. DEDUCTIONS AND WITHHOLDING. Executive agrees that the Company shall
have the right to withhold from any and all payments required to be made to
Executive pursuant to this Agreement all federal, state, local and/or other
taxes which are required to be withheld in accordance with applicable law.
Except for such withholding, the Company shall not have the right to offset any
amount from the Compensation or other amounts payable to Executive hereunder.
8. CONFIDENTIAL INFORMATION AND NONCOMPETITION COVENANT
A. CONFIDENTIAL INFORMATION. Executive hereby
acknowledges that in and as of a result of his employment hereunder, he will be
making use of, acquiring and/or adding to confidential information of a special
and unique nature and value relating to certain Company records, secrets,
documentation, ledgers and general Company information, account receivable and
payable ledgers, customer lists, prospective franchisees and franchisee lists,
financial and other records of the Company, its subsidiaries and affiliates,
franchisees and other similar matters (all such information, being hereinafter
referred to as "Confidential Information"), and the Executive further
acknowledges that the Confidential Information is of great value to the Company.
The parties recognize that the duties and services to be performed by the
Executive are special and unique and
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that, by reason of his employment hereunder, the Executive will acquire the
Confidential Information. Executive hereby agrees that he will not, at any time,
directly or indirectly, except in connection with Executive's employment
hereunder or as otherwise authorized by the Company's Board of Directors for the
benefit of the Company, divulge to any person, firm or corporation other than
the Company (hereinafter referred to as "Third Parties"), or use or cause to
authorize any Third Parties to use, the Confidential Information or any other
information relating to the business or interests of the Company which he knows
or should know is regarded as Confidential and valuable by the Company, except
as required by law or in any legal action arising from this Agreement, and
except for information that is or becomes publicly known other than through a
breach of this Agreement. Executive agrees that upon expiration of his
employment by the Company for any reason, he shall forthwith deliver or cause to
be delivered to the Company any and all Confidential Information, including
drawings, notebooks, keys, data and other documents and materials belonging to
the Company, which is in his possession or under his control relating to the
Company or its business, and will deliver upon such expiration of employment any
other property of the Company which is in this possession or under his control.
B. AGREEMENT NOT TO COMPETE. Executive hereby agrees, to the
extent permitted by law, that during Executive's employment hereunder and the
three (3) year period subsequent to the date of termination of his employment
with the Company hereunder, the Employee shall not either directly or
indirectly, as a proprietor, partner, investor, shareholder, employee, agent or
consultant:
(1) engage in the operation of any restaurant
(other than the Company's restaurants) that has both of the following
characteristics: (i) it usually derives or expects to derive over forty percent
(40%) of its gross revenues from the sale of steak; and also (ii) the average
dinner xxxx per person at the restaurant is less than Twenty Dollars ($20.00).
Nothing herein shall prevent the Executive from owning for investment purposes,
up to an aggregate of five percent (5%) of the capital stock of any such
business, provided that such business is a publicly held corporation, whose
stock is listed and traded on national or regional stock exchange, or through
the National Association of Securities Dealers Automated Quotation System
(NASDAQ), provided that Executive does not control any such company; or
(2) directly or indirectly solicit for
employment for or on behalf of himself or any Third Party any person who, within
one (1) year of the termination of Executive's employment hereunder, was an
employee of the Company.
9. INDEMNIFICATION: ADVANCEMENT OF FEES. To the full extent permitted
by applicable law, the Company shall indemnify Executive against all liability,
cost and expense (including, but not limited to, all reasonable attorney's and
other legal fees and costs through all negotiations and all trial and appellate
levels of litigation) that Executive may incur in connection with any proceeding
to which Executive is or may be made party (and all appeals thereof) by reason
of the fact that he is or was a director, officer, employee or agent of the
Company or is or was serving at the request of the Company as director, officer,
employee or agent of any other corporation, partnership, joint venture, trust or
other enterprise. The Company shall advance to Executive all fees and expenses
that Executive may incur in connection with any such proceeding to the full
extent permitted by applicable law, provided that Executive provides an
undertaking
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reasonably acceptable to the Company's Board of Directors to repay such
advancement if Executive is ultimately determined not to be entitled to
indemnification. The provisions of this Section 9 shall survive the termination
of this Agreement and Executive's employment hereunder.
10. ASSIGNABILITY AND BINDING EFFECT. The rights and obligations
arising under this Agreement shall inure to the benefit of and shall be binding
upon the heirs, executors, administrators, successors, and legal representatives
of Executive, and shall inure to the benefit of and be binding upon the Company
and its respective successors and assignees. The Company shall not assign its
rights or delegate its duties hereunder without the prior written consent of
Executive, other than to a company that has acquired all or substantially all
the assets of the Company, and assumes all the Company's obligations hereunder,
provided the assignment is made contemporaneously with such transaction and the
Company remains liable for all its obligations hereunder. Executive shall not
assign his rights or delegate his duties hereunder without the prior written
consent of the Company.
11. NOTICES. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given only
upon hand delivery thereof or upon receipt, if sent by reputable overnight
courier, addressed as follows or, the fourth (4th) business day after mailing by
United States certified mail, return receipt requested, postage prepaid,
addressed as follows:
To Company: ROADHOUSE GRILL, INC.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
To Executive: XXXX XXXXX XXXXX, III
c/o Roadhouse Grill, Inc.
0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
or to such other addresses or such other person as any party shall designate, in
writing, to the other for such purposes and in the manner hereinabove set forth.
12. ENTIRE AGREEMENT. This Agreement supersedes and replaces any and
all prior agreements and understandings between the parties hereto respecting
the employment of Executive by the Company and constitutes the complete
understanding between the parties with respect to the employment of Executive
hereunder, and no statement, representation, warranty or covenant has been made
by any party with respect thereto except as expressly set forth herein.
13. AMENDMENT. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the Company the Executive shall unanimously agree in writing to such
Amendment.
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14. NO WAIVER. No waiver of any provision of this Agreement shall be
effective unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be continuing or future
waiver.
15. HEADINGS. The headings set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement in any
respect nor shall they in any way affect the substance of any provisions
contained in this Agreement.
16. FURTHER ASSURANCES. The parties hereto will execute and
deliver such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Florida, and any
proceeding arising between the parties in any manner pertaining or related to
this Agreement shall, to the extent permitted by law, be held in Broward County,
Florida.
18. LITIGATION. If any party hereto is required to engage in
litigation against any other party hereto, either as plaintiff or as defendant,
in order to enforce or defend any of its or his rights under this Agreement, and
such litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred by the Prevailing Party in so enforcing or defending its or
his rights hereunder, including, but not limited to, all reasonable attorneys'
and other legal fees and court costs and other expenses incurred throughout all
negotiations, trials or appeals undertaken in order to enforce the Prevailing
Party's rights hereunder.
19. SEVERABILITY. If any clause or provision hereof shall be held
invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Agreement in any jurisdiction.
20. JOINT DRAFTING RESPONSIBILITY. This Agreement is the result of the
joint efforts and negotiations of the parties hereto, with each party being
represented or having the opportunity to be represented by legal counsel of its
own choice. The parties agree that the rule of judicial interpretation to the
effect that any ambiguity or uncertainty contained in an agreement is to be
construed against the party who drafted the Agreement shall not be applied in
the event of any disagreement or dispute arising out of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
Signed, Sealed and Delivered
in the Presence of: COMPANY:
ROADHOUSE GRILL, INC., a
Florida corporation
By:__________________________________
______________________________ Title: Director
______________________________
By:__________________________________
______________________________ Title: Director
______________________________
By:__________________________________
______________________________ Title: Director
______________________________
EXECUTIVE:
______________________________ __________________________________________
XXXX XXXXX XXXXX, III
______________________________
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EXHIBIT A
Stock Option Agreements
A-1
