EXHIBIT 10.6.7
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made this 1st day
of September, 1995, by and between Xxxxxxx Xxxxxx ("Employee") and Au Bon
Pain, Co., Inc., a Delaware corporation with a principal place of business in
Boston, Massachusetts (the "Company").
WHEREAS, the Company wishes to employ and engage the services of the
Employee in an executive capacity for the Company, upon the terms, conditions
and provisions of this Agreement; and
WHEREAS, the Employee desires to provide services to the Company in
accordance with the terms, conditions and provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and Employee hereby agree as follows:
1. DEFINITIONS
For all purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1 unless the context clearly requires
otherwise:
(a) "BASE SALARY" means the Employee's annualized base salary set forth in
Section 3 of this Agreement, and such increases thereto as may be established by
the Company from time to time. In no event, however, shall Employee's Base
Salary be less than the amount set forth in Section 3 of this Agreement. "Base
Salary" shall not include any bonus, incentive compensation or employee
benefits;
(b) "BENEFITS" means all employee benefits provided to the Employee by the
Company, including medical, dental, long-term disability, life insurance, and
such other benefits as may be provided from time to time by the Company
generally to its employees;
(c) "INCENTIVE COMPENSATION" means additional compensation provided to the
Employee by the Company during the term of this Agreement, if any, other than
Base Salary and Benefits;
(d) "SEVERANCE" means payments made by the Company to the Employee after
termination of employment, pursuant to this Agreement, at the rate of the
Employee's annualized Base Salary (and car allowance, if any) as of the date of
Employee's termination. Severance is payable on a weekly basis in substantially
equal installments following Employee's termination, in such increments and for
such period(s) of time
designated in this Agreement ("Severance Period"). Severance shall not include
any bonuses or other Incentive Compensation. Except as set forth in the
immediately preceding sentence, Severance shall also include the continuation of
Employee's Benefits existing at the time of Employee's termination for the
Severance Period. Employee shall be responsible for making all required
contributions to continue Benefits during the Severance Period on the same basis
as existed at the time of the Employee's termination. Severance shall be reduced
(dollar for dollar) by any compensation and benefits Employee receives or earns
during the Severance Period from any source other than the Company including,
without limitation, salary, employee benefits, consulting fees, income from
self-employment or otherwise.
2. EMPLOYMENT
The Company agrees to employ the Employee to render services to the Company
in an executive capacity. Effective as of the date hereof, Employee hereby
accepts such employment subject to the terms and conditions set forth herein.
Employee agrees to devote his full attention, best talents and abilities to the
job and to perform faithfully his duties and responsibilities hereunder.
3. COMPENSATION
The Company shall pay Employee a Base Salary at the rate of $300,000
annualized, Incentive Compensation, and Benefits, subject to federal and state
withholdings and customary payroll deductions.
4. TERM
Unless terminated as provided in Section 5, or as otherwise provided in
this Agreement, this Agreement shall continue for a two-year period from the
commencement of Employee's employment with the Company or the effective date of
this Agreement, whichever is later; thereafter, this Agreement shall
automatically renew for additional one-year periods, unless either party
notifies the other in writing of its intent not to renew this Agreement at least
twenty-six (26) weeks prior to its expiration. In the event the Employee gives
notice of intent not to renew this Agreement, the Employee shall not be entitled
to Severance. In the event the Company gives notice of intent not to renew this
Agreement, at the expiration of the Agreement the Employee shall be entitled to
twenty-six (26) weeks' Severance.
5. TERMINATION
(a) TERMINATION FOR CAUSE
The Company may terminate Employee's employment at any time for cause, upon
written notice specifying the reasons. As used herein, the term "cause" shall
mean:
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(i) The commission by Employee of any act of embezzlement, fraud,
larceny, theft, or other willful misconduct or gross negligence in
connection with the performance of Employee's duties which
adversely affects the affairs of the Company;
(ii) Employee's conviction of a felony, or conviction of a misdemeanor
involving moral turpitude;
(iii) A material breach of the terms of this Agreement which continues
for fifteen (15) days after the Company has given written notice
to the Employee specifying in reasonable detail the material
breach.
(b) TERMINATION WITHOUT CAUSE
Notwithstanding any other provision of this Agreement, the Company may
terminate Employee's employment, without cause, at any time, for any reason,
effective upon thirty (30) days' written notice to the Employee. In the event of
a termination without cause, the Employee shall be entitled to fifty-two (52)
weeks' Severance.
(c) RESIGNATION
The Employee may at any time during the term of this Agreement resign
employment, effective upon ninety (90) days' written notice to the Company. Upon
such resignation, the Employee shall not be entitled to any Severance, and,
except as otherwise specifically set forth herein, the obligations of the
Company to the Employee under this Agreement shall terminate upon the effective
date of such resignation. Employee agrees to continue to perform his duties
hereunder, and otherwise assist the Company in an orderly transition, during
such ninety-day period.
(d) DISABILITY
The Company may terminate Employee's employment if, at any time during the
term of this Agreement, the Employee shall become disabled so that he is unable
to perform the Employee's regular duties of employment, with reasonable
accommodation, for a period of ninety (90) days in the aggregate during any
180-day period. The determination of the Employee's disability for purposes of
this Section 5(d) shall be made by a qualified physician acceptable to both
parties. In the event that the Company and the Employee are unable to agree upon
a qualified physician, each party shall select a qualified physician, and in the
event those two physicians are unable to agree upon a determination as to the
Employee's disability, a third neutral physician ("Neutral Physician")
acceptable to the parties shall be selected. The determination of disability by
the Neutral Physician shall be final and binding for purposes of this Agreement.
In the event this Agreement is terminated pursuant to this Section 5(d), the
Employee shall be
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entitled to fifty-two (52) weeks' Severance. Such Severance shall be offset
dollar for dollar by any payments made in the aggregate to the Employee under
the Company's existing Salary Continuation and Long-Term Disability Plan(s).
(e) DEATH
This Agreement and all obligations of the Company hereunder shall terminate
upon the death of the Employee. In the event of a termination upon the death of
the Employee, monies or compensation owed by the Company to the Employee up to
the date of termination shall be paid to the Employee's estate or designee.
6. CONFIDENTIAL NATURE OF THIS AGREEMENT
Employee agrees to keep confidential the terms of this Agreement. A
violation of this provision shall entitle the Company to terminate this
Agreement immediately, for cause, as set forth in Section 5(a)(iii).
Notwithstanding the above, the Employee may disclose the terms of this Agreement
to his/her immediate family, bankers, accountants, attorneys, and other
financial advisers, the Internal Revenue Service, the Massachusetts Department
of Revenue, in the event that disclosure is necessary in litigation or
arbitration involving this Agreement, or in the event that such disclosures
shall be compelled by law.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION
(a) The Employee understands and acknowledges that in the course of
employment with the Company, Employee will have access to confidential and
proprietary information of the Company and its Affiliates (which shall mean
entities controlling, controlled by or under common control with the Company,
including without limitation, Saint Louis Bread Company, Inc. and its
Affiliates) which constitute valuable, special and unique assets of the Company
and its Affiliates. For purposes of this Agreement, such confidential and
proprietary information shall include, without limitation, the following: trade
secrets; operating techniques; procedures and methods; product specifications;
customer lists; account information; price lists; discount schedules;
correspondence with customers, vendors, employees, partners or others; drawings;
software; leads from suppliers; marketing techniques; procedures and methods;
employee lists; internal financial reports of the Company and its Affiliates;
sourcing lists; and recruiting lists (collectively, "Confidential Information").
(b) The Employee agrees that during the term of this Agreement and at
any time thereafter, Employee will not, without the authorization of the
Company: (i) disclose any Confidential Information to any person or entity for
any purpose whatsoever; or (ii) make use of any Confidential Information for
Employee's own purposes or for the benefit of any other person or entity, other
than the Company and its Affiliates.
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(c) The Employee agrees that upon the request of the Company or upon
termination of employment, Employee shall return to the Company all documents or
other materials, including electronic or computerized data, containing or
relating to Confidential Information, along with all other Company property.
8. RESTRICTIVE COVENANT
During the term of this Agreement, and for one year after its termination,
for whatever reason, the Employee shall not, directly or indirectly, either as
an individual, employee, partner, officer, owner, director, shareholder, advisor
or consultant, or in any other capacity whatsoever, on behalf of any person,
firm, corporation, partnership or entity:
(a) be employed by or retained as a consultant or advisor to a
competitive entity in the bakery/coffee/deli business. For purposes of this
Agreement, "competitive entity" includes, without limitation, the following
companies doing business as: WALL STREET DELI; PARADISE BAKERY, INC.; STARBUCKS;
VIE DE FRANCE; JAVA CITY; XXXXXXXX'X BAGEL BAKERY; FINAGLE-A-BAGEL; LE
BOULANGERIE; GREAT HARVEST; EINSTEIN'S/NOAH'S; PEET'S; CORNER BAKERY; BIG SKY,
and their respective parents, subsidiaries, franchisees, affiliates, successors
or assigns. Additionally, "competitive entity" shall include, without
limitation, any company which generates in the aggregate more than 25% of its
revenues from the sale of baked goods and coffee, and their respective parents,
subsidiaries, franchisees, affiliates, successors or assigns. Notwithstanding
the above, the direct or indirect ownership of one percent (1%) or less of the
stock of a competitive entity whose shares are listed on a national securities
exchange or are quoted on the National Association of Securities Dealers
Automated Quotation System or so-called Bulletin Board shall not, in and of
itself, be deemed to be a violation of this Section 8(a);
(b) recruit, solicit, hire, or assist any other person or party in
recruiting, soliciting, or hiring any employee of the Company or any of its
Affiliates or any of their respective franchises.
The Company may, in its sole discretion, waive enforcement of the
provisions of this Section 8, which waiver shall be evidenced solely by the
execution and delivery to the Employee of a written document setting forth the
terms of such waiver, executed by an authorized representative of the Company.
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9. ENFORCEMENT
Employee agrees and acknowledges that a violation of Sections 7 or 8 of
this Agreement shall entitle the Company to terminate this Agreement
immediately, which termination shall be conclusively deemed to be a termination
for cause, as set forth in Section 5(a) hereunder. In the event of a violation
of Sections 7 or 8 of this Agreement, any further Severance, salary
continuation, Benefits or other future compensation otherwise owed pursuant
hereto shall be forfeited, and any Severance already paid or provided to the
Employee shall likewise be forfeited and shall be immediately returned to the
Company.
The Employee acknowledges and agrees that the Company's remedies at law for
a breach of Sections 7 or 8 of this Agreement are inadequate and that the harm
caused thereby is irreparable. The Employee expressly agrees that in the event
of a violation of Sections 7 or 8 of this Agreement, the Company shall be
entitled to equitable relief enforcing the terms of this Agreement, including
without limitation, specific performance, a temporary restraining order,
preliminary injunction or permanent injunction to prevent any breach or
attempted breach thereof. The provisions of Sections 7, 8 and 9 shall survive
the termination of this Agreement, in addition to any others which may survive
pursuant to the terms of this Agreement.
10. SEVERABILITY
If any provision of this Agreement including, without limitation, Sections
7, 8 or 9 hereof, is declared or found to be illegal, unenforceable, void,
overbroad, or unreasonable in scope, territory, or duration, in whole or in
part, then both parties will be relieved of all obligations arising under such
provision, but only to the extent it is illegal, unenforceable, void, overbroad,
or unreasonable in scope, territory or duration. The intent and agreement of the
parties to this Agreement is that this Agreement will be deemed amended by
modifying any such illegal, unenforceable, void, overbroad or unreasonable
provision to the extent necessary to make it legal and enforceable while
preserving its intent, or if such is not possible, by substituting therefor
another provision that is legal and enforceable and achieves the same
objectives. The foregoing notwithstanding, if the remainder of this Agreement
will not be affected by such declaration or finding and is capable of
substantial performance, then each provision not so affected will be enforced to
the extent permitted by law.
11. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement or
Employee's employment with the Company, except for claims of violation by the
Employee of Sections 7 and 8 hereof which may be enforced by the Company in a
court of competent jurisdiction pursuant to Section 9 hereof, shall be settled
exclusively by
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binding arbitration before a single arbitrator in the City of Boston, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The provisions hereof shall be a complete bar and defense to any
suit, action or proceeding instituted by the Employee in any federal, state or
local court or before any administrative tribunal with respect to any matter
which is arbitrable as herein set forth. This Section shall survive the
termination or expiration of this Agreement. Nothing herein contained shall be
deemed to give any arbitrator any authority, power, or right to alter, change,
amend, modify, add to, or subtract from any provisions of this Agreement. The
arbitrator shall have no authority to award punitive damages or attorney's fees
to any party. The decision of the arbitrator shall be final and conclusive.
Judgment on an award rendered by the arbitrator may be entered in any court of
competent jurisdiction.
12. NO CONFLICTING AGREEMENTS
Employee hereby represents and warrants that neither the entry into this
Agreement nor its performance by Employee will conflict with or result in a
breach of the terms, conditions or provisions of any other agreement or other
obligation of any nature to which Employee is a party, or by which he is
otherwise bound, including, without limitation, any other employment agreement,
non-competition agreement, or confidentiality agreement.
13. GOVERNING LAW
The terms hereof shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Massachusetts, without giving
effect to its conflict of laws rules which may otherwise require the application
of the law of another jurisdiction.
14. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
Company and the Employee and their respective successors, assigns, heirs, legal
representatives, executors and administrators.
15. NOTICES
(i) All notices to the Employee shall be addressed to Employee at:
or to such other place(s) as may be designated by written notice to the Company.
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(ii) All notices to the Company shall be addressed to the Company at:
00 Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: C.E.O.
With copies to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Hannah LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other place(s) as may be designated by written notice to Employee.
(iii) Notice shall be sufficient if given by hand or by certified mail,
postage prepaid, return receipt requested, addressed to the party at its address
described above. Unless otherwise notified in writing, each party shall direct
all sums payable to the other party at its address for notice purposes.
16. HEADINGS
The captions and headings in this Agreement are for convenience and
reference only, and they shall in no way be held or deemed to define, modify or
add to the meaning, scope or intent of any provision of this Agreement.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, written or oral on the
subject matter hereof including, but not limited to, offer letters, employment
letters, and agreements concerning severance pay.
18. AMENDMENTS
This Agreement may be modified only by written agreement signed by both the
Employee and the Company.
19. WAIVER
The failure of any party at any time to require the performance of any
provision(s) hereof shall in no manner affect the right(s) of such party at a
later time to require the
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performance of said provision(s), and shall not be deemed a waiver of any
obligations hereunder.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement under seal, as of the date first above written.
AU BON PAIN CO., INC.
By: /s/ Xxxxxx X. Xxxxxx Date: 12/13/96
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Xxxxxx X. Xxxxxx, Co-Chairman
Witness: /s/ Xxxxxxx X. Xxxxx Date: 12/13/96
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Xxxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx Date: 3/28/97
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Xxxxxxx X. Xxxxxx
Witness: /s/ Xxxx X. Xxxxx Date: 3/28/97
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