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EXHIBIT 10.23
EMPLOYMENT CONTRACT
EMPLOYMENT CONTRACT, dated as of January 1, 1997, between EATERIES,
INC., an Oklahoma corporation (the "COMPANY"), and XXXXX XXXXX, an
Oklahoma resident ("XXXXX"), residing at 0000 X. Xxxxxxx Xx. #00, Xxxxxxxx Xxxx,
XX 00000.
The Company desires to engage XXXXX to perform services for the
Company, and XXXXX desires to perform such services, on the terms and
conditions hereinafter set forth.
1. Term. The Company agrees to employ XXXXX, and XXXXX agrees to
serve, on the terms and conditions of this Agreement for a period commencing on
the date stated above, and ending December 31, 1997, or for such shorter period
as may be provided herein (the "Employment Period"). Unless action is taken by
the Compensation Committee the contract is automatically extended for
successive one year periods at the same terms and conditions. Unless written
or oral notice of termination is given by either party prior to expiration of a
contract year, the contract is automatically extended for successive one (1)
year periods at the same terms and conditions.
2. Duties and Services. During the Employment Period, XXXXX
shall be employed in the business of the Company as Interim Vice President of
Finance, Treasurer and Chief Financial Officer or other position as may be
determined by the Board of Directors, and shall perform services consistent
with whatever such position he may hold. In performance of his duties XXXXX
shall be subject to the direction of the Board of Directors of the Company.
XXXXX shall be available to travel as the needs of the business require.
3. Compensation.
(a) Salary. As a compensation for his services hereunder,
the Company shall pay XXXXX, during the Employment Period, a salary payable in
equal bi-weekly installments at the annual rate of $85,000.00, subject to annual
re-evaluation by the Board of Directors of the Company. The annual
re-evaluation shall be based in part upon the attainment of corporate objectives
mutually agreed upon by XXXXX and the Board of Directors of the Company.
Nothing contained herein shall preclude XXXXX from participating in future
executive bonus plans, pension or profit sharing, deferred compensation, stock
option, or other employee benefit plans of the Company, if he meets the
eligibility requirements therefor.
(b) Options. As additional compensation XXXXX may in the
future, be granted additional nonqualified options at the sole discretion of the
Compensation Committee of the Board of Directors of the Company.
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4. Expenses and Vacation. XXXXX shall be entitled to
reimbursement for reasonable travel and other out-of-pocket expenses
necessarily incurred in the performance of his duties hereunder, upon
submission and approval of written statements and bills in accordance with the
then regular policies and procedures of the Company. XXXXX reasonable
vacations in accordance with the then regular policies and procedures of the
Company governing executives.
5. Representations and Warranties of XXXXX. XXXXX represents and
warrants to the Company that (a) he is under no contractual or other
restriction or obligation which is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the other rights of the
Company hereunder and (b) he is under no physical or mental disability that
would hinder his performance of duties under this Agreement.
6. Confidential Information. All trade secrets, or other
proprietary or confidential information which XXXXX may now possess, may obtain
during or after the Employment Period, or may create prior to the end of the
period XXXXX is employed by the Company under this Agreement or otherwise
relating to the business of the Company or its affiliates shall not be
published, disclosed, or made accessible by him to any other person, firm, or
corporation either during or after the termination of his employment or used by
him except during the Employment Period in the business and for the benefit of
the Company. XXXXX shall return all tangible evidence of such trade secrets, or
other proprietary or confidential information to the Company prior to or at the
termination of his employment. "Trade secrets" shall include, but not be
limited to recipes developed or utilized by the Company, as well as methods of
operations developed and utilized by the Company.
Additionally, during the Employment Period, XXXXX shall not acquire,
directly or indirectly, any interest in any restaurants with concepts similar
to Company restaurants, unless specifically authorized by the Board or
Directors of the Company in writing. Notwithstanding the foregoing, XXXXX
shall not be prevented from owning any securities of any competitor of the
Company which are regularly traded on any national securities exchange or in
the over-the-counter market; provided, that the same shall not result in XXXXX
and his immediate family owning, legally or beneficially, at any time, five
percent (5%) or more of the voting securities of any such company. In the
event that the provisions of this section should ever be deemed to exceed the
time, geographic or occupational limitations permitted by applicable law, then
such provisions shall be reformed to the maximum time, geographic, or
occupational limitations permitted by applicable law.
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7. Termination. Notwithstanding anything herein contained, if on
or after the date hereof and prior to the end of the Term hereof,
(a) either (i) XXXXX shall be physically or mentally
incapacitated or disabled or otherwise unable fully to discharge his
duties hereunder for a period of three months, (ii) XXXXX shall be
convicted of a felony crime by a court of last resort, (iii) XXXXX
shall commit any act or omit to take any action in bad faith and to
the substantial detriment of the Company, or (iv) XXXXX shall breach
any term of this Agreement and fail to correct such breach within ten
(10) days after notice to XXXXX by the
Company of the same, then, and in each case, the Company
shall have the right to give notice of termination of XXXXX'x services
hereunder as of a date (not earlier than ten (10) days from such
notice in the case of items (ii), (iii) or (iv) and not earlier than
three months from such notice in the case of item (i) to be
specified in such notice and this Agreement shall terminate on the
date so specified; or
(b) XXXXX shall die, then this Agreement shall
terminate on the date of XXXXX'x death,
In the event of XXXXX'x death, his estate or designated beneficiary shall
receive bi-weekly installments of salary for a period of one year from his
death. Nothing contained in this Section 7 shall be deemed to limit any other
right the Company may have to terminate XXXXX'x employment hereunder upon any
ground permitted by law.
8. Merger, Et Cetera. In the event of a future disposition of
(or including) the properties and business of the Company, substantially as an
entirety, by merger, consolidation, sale of assets, or otherwise, then the
Company may elect either of the following options:
(a) To assign this Agreement and all of its rights and
obligations hereunder to the acquiring of surviving corporation;
provided that such corporation shall be capable of assuming and
performing and shall assume in writing all of the obligations of the
Company hereunder; provided further that the Company (in the event and
so long as it remains in business as an independent going enterprise)
shall remain liable for the performance of its obligations hereunder in
the event of an unjustified failure of the acquiring corporation to
perform its obligations under this Agreement; and provided finally that
the duties assigned XXXXX are commensurate with those held prior to the
merger and that a relocation of more than 50 miles from the city limits
of the City of Oklahoma City, is not required to fulfill such duties;
or
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(b) In addition to its other rights of termination, to
terminate this Agreement upon at least thirty (30) days' written
notice by paying XXXXX one half year's salary and at the rate provided
in Section 3 and 4 on the date which such termination shall take
effect.
(c) The options stated in this Section 8 are for the
benefit of the Company and the Company may choose not to exercise
either of them.
9. Liquidation Damages. The parties hereto covenant and agree
that, in the event the Company shall breach the terms of this Agreement or the
Agreement shall terminate under Section 8 (b), it shall pay to XXXXX, as
liquidated damages for such breach or termination, an amount equal to that
which would have been received by him under Section 3(a) and 4 for one half
year. Such amount shall be promptly paid upon a determination of breach or
termination, and in accordance with the Company's bi-weekly payroll system
until such time as above noted amount has been paid in full.
10. Survival. The covenants, agreements, representation, and
warranties contained in or made pursuant to this Employment Contract shall
survive XXXXX'x termination of employment, irrespective of any investigation
made by or on behalf of any party.
11. Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
12. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt, to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement (or to such other address as the party shall have
furnished in writing). Notice to the estate of XXXXX shall be sufficient if
addressed to XXXXX as provided in this Section 12. Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
13. Waiver. Any waiver by either party of a breach of any
provision of this Contract shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any provision in this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Contract on one or more occasions shall not be considered a
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waiver or deprive that party of the right hereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be
in writing.
14. Binding Effect. XXXXX'x rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to commutation, encumbrance, or the claims of XXXXX'x
creditors, and any attempt to do any of the foregoing shall be void. The
provisions of this Agreement shall be binding upon and inure to the benefit of
XXXXX and his heirs and personal representatives, and shall be binding upon and
inure to the benefit of the Company and its successors and those who are its
assigns under Section 8.
15. No Third Party Beneficiaries. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person
not a party to this Agreement (except as provided in Section 14).
16. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. Counterparts: Governing Law. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. It shall
be governed by and construed in accordance with the laws of the State of
Oklahoma, without given effect to the conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above written.
EATERIES, INC.:
By: /s/ Xxxxxxx X. Xxxx
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Vice President
XXXXX:
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
As approved by a vote of the Compensation Committee of the Board of Directors
of Eateries, Inc. on November 10, 1995.
