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EMPLOYMENT AGREEMENT
This Agreement is made as of January 23, 1997 by and between FAMOUS DAVE'S
OF AMERICA, INC., a Minnesota corporation (the "Company"), and XXXXXXX X.
XXXXXX (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive in accordance with the
terms and conditions stated in this Agreement; and
WHEREAS, Executive desires to accept that employment pursuant to the terms
and conditions of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereto agree as follows:
I. Employment
1.1 Employment as President and Chief Operating Officer. The Company
hereby employs Executive as President and Chief Operating Officer and Executive
accepts such employment pursuant to the terms of this Agreement. Executive
shall report to and take direction from the Chairman of the Board of Directors
(the "Board") and the Board. All other employees of the Company will report,
directly or indirectly, to Executive. Executive will perform those duties
which are usual and customary for a President and Chief Operating Officer of a
restaurant enterprise. Executive shall be employed at the Company's corporate
offices. He shall perform his duties in a manner reasonably expected of a
President and Chief Operating Officer of a restaurant company.
1.2 Term. Employment shall be for a term commencing January 23, 1997 and
continuing until the earlier of (i) January 31, 2001 or (ii) the date
Executive's employment terminates pursuant to Article III hereof.
II. Compensation, Benefits and Perquisites
2.1 Base Salary. During the term and effectiveness of this Agreement, the
Company shall pay Executive an annualized base salary ("Base Salary") at the
annual rate of $225,000. The Base Salary shall be payable in equal
installments in the time and manner that other employees of the Company are
compensated. The Board will review the Base Salary at least annually and may,
in its sole discretion, increase it to reflect performance, appropriate
industry guideline data or other factors. The Base Salary will be adjusted at
least annually to reflect, at a minimum, any increase in the consumer price
index for the preceding calendar year.
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2.2 Bonus. Executive will receive an annual bonus ("Bonus") in an amount
of up to 40% of his Base Salary, to be determined and paid at the discretion of
the Board at the end of each year of service based upon Executive's
satisfaction of certain criteria mutually agreed upon by Executive and the
Board, except that for the first year only of this Agreement Executive shall
receive a bonus of at least 20% of his Base Salary. The Board and Executive
will review and, if mutually agreed, revise the criteria for the Bonus at least
annually.
2.3 Vacation. Executive shall be entitled to three weeks' paid vacation,
or such greater amount of time as determined by the Board.
2.4 Employee Benefits. Until the Company adopts a benefit plan, Executive
shall be entitled to the usual and customary benefits and perquisites which the
Company generally provides to its other executives under its applicable plans
and policies (including, without limitation, group health, group dental and
group life coverage). Once the Company adopts a benefit plan, Executive shall
be entitled to the benefits which the Company provides to its other executives
under such plan. Executive shall pay any contributions which are generally
required of executives to receive any such benefits.
2.5 Moving Expenses. Executive shall receive reasonable relocation
expenses relating to his relocation to Minnesota, conditioned upon Executive's
submitting at least two written bids from different moving companies to the
Board for its approval.
2.6 Travel and Living Expenses. The Company will pay for or reimburse
Executive for the reasonable cost of round-trip air travel once monthly between
Minneapolis and Tampa. The Company will also pay for or reimburse Executive
for the reasonable cost of housing in the Twin Cities area through May 31, 1997
pending Executive's relocation to a permanent residence and for the reasonable
cost of leasing an automobile up to March 1, 1997.
III. Termination of Executive's Employment
3.1 Termination of Employment.
(a) Executive's employment under this Agreement may be terminated by
Executive at any time for any reason. This Agreement shall terminate in its
entirety immediately upon the death of Executive.
(b) Executive's employment under this Agreement may be terminated
by the Company at any time for any reason; provided, however, that if (i)
Executive's employment is terminated by the Company during the term of this
Agreement for a reason or disability other than for "Cause" as defined in
Section 3.2, or (ii) Executive resigns for "Good Reason"as defined in Section
3.2, Executive shall continue to receive his Base Salary under Section 2.1 for
a period of one year from the date of termination, and provided further, that
if Executive terminates his employment hereunder between six and 12 months
following the date of this Agreement for any reason,
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Executive shall continue to receive his Base Salary under Section 2.1 for the
remainder of the calendar year (but in no event for less than three months) and
also moving expenses in an amount equal to that previously paid to Executive
pursuant to Section 2.5.
(c) Any termination shall be effective as of the date specified by the
party initiating the termination in a written notice delivered to the other
party, which date shall not be earlier than the date such notice is delivered
to the other party. Except as expressly provided to the contrary in this
section or applicable law, Executive's rights to pay and benefits shall cease
on the date his employment under this Agreement terminates.
3.2 Definitions. For purposes of this Article III,
(a) "Cause" shall mean only the following: (i) commission of a felony;
(ii) theft or embezzlement of Company property or commission of similar acts
involving moral turpitude; or (iii) the failure by Executive to substantially
perform his material duties under this Agreement (excluding nonperformance
resulting from Executive's disability) which failure is not cured within 30
days after written notice from the Chairman of the Board specifying the act of
nonperformance or within such longer period (but no longer than 90 days in any
event) as is reasonably required to cure such nonperformance. Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of the Board at a meeting of
the Board called and held for this specific purpose.
(b) "Good Reason" shall mean only the following: (i) Executive has been
demoted; or (ii) Executive has incurred a substantial reduction in his
authority or responsibility.
3.3 Disability. If Executive has become disabled such that he cannot
perform the essential functions of his job with or without reasonable
accommodation, and the disability has continued for a period of more than 90
days, the Board may, in its discretion, terminate his employment under this
Agreement. Upon any such termination for disability, Executive shall be
entitled to such disability, medical, life insurance, and other benefits as may
be provided generally for disabled employees of the Company during the period
he remains disabled.
3.4 Notice. Executive must provide the Company with at least 30 days'
written notice if Executive desires to terminate his employment under this
Agreement.
IV. Confidentiality
4.1 Prohibitions Against Use. Both parties to this Agreement acknowledge
and agree that during the term of this Agreement they may have access to
various trade secrets and confidential business information ("Confidential
Information") of each other. Each party agrees that it shall use such
Confidential Information solely in connection with his obligations under this
Agreement and shall maintain in strictest confidence and shall not disclose any
such Confidential Information,
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directly or indirectly or use such information in any other way during the term
of this Agreement or for a period of one (1) year after the termination of this
Agreement. The parties further agree to take all reasonable steps necessary to
preserve and protect the Confidential Information. The provisions of this
Section shall be equally applicable to each parties' officers, directors,
agents or employees. The provisions of this Section shall not apply to
information which (i) was in possession of a party prior to receipt from the
other party, or (ii) is or becomes generally available to the public other than
as a result of a disclosure by a party, its directors, officers, employees,
agents or advisors, or (iii) becomes available to a party from a third party
having the right to make such disclosure.
4.2 Remedies. Executive acknowledges that the Company's remedy at law for
any breach or threatened breach by Executive of Section 4.1 will be inadequate.
Therefore, the Company shall be entitled to injunctive and other equitable
relief restraining Executive from violating those requirements, in addition to
any other remedies that may be available to the Company under this Agreement or
applicable law.
V. Non-Competition
5.1 Agreement Not to Compete. Executive agrees that, on or before the
date which is two (2) years after the date Executive's employment under this
Agreement terminates, he will not, unless he receives the prior approval of the
Board, directly or indirectly engage in any of the following actions:
(a) Own an interest in (except as provided below), manage, operate,
join, control, lend money or render financial or other assistance to, or
participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any entity whose primary business is the
retail sale of barbequed food. However, nothing in this subsection (a) shall
preclude Executive from holding (i) less than one percent of the outstanding
capital stock of any corporation required to file periodic reports with the
Securities and Exchange Commission under Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the securities of which are listed on any
securities exchange, quote on the National Association of Securities Dealers
Automated Quotation System or traded in the over-the-counter market or (ii)
Executive's existing interests in Casa Roja, Inc. (d/b/a Rudy's), a barbequed
food restaurant in Albuquerque, New Mexico.
(b) Intentionally solicit, endeavor to entice away from the Company, or
otherwise interfere with the relationship of the Company, any person who is
employed by or otherwise engaged to perform services for the Company
(including, but not limited to, any independent sales representatives or
organizations), whether for Executive's own account or for the account of any
other individual, partnership, firm, corporation or other business
organization.
If the scope of the restrictions in this section are determined by a court of
competent jurisdiction to be too broad to permit enforcement of such
restrictions to their full extent, then such restrictions shall be construed or
rewritten (blue-lined) so as to be enforceable to the maximum extent permitted
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by law, and Executive hereby consents, to the extent he may lawfully do so, to
the judicial modification of the scope of such restrictions in any proceeding
brought to enforce them.
5.2 Remedies. Executive acknowledges that the Company's remedy at law for
any breach or threatened breach by Executive of Section 5.1 will be inadequate.
Therefore, the Company shall be entitled to injunctive and other equitable
relief restraining Executive from violating those requirements, in addition to
any other remedies that may be available to the Company under this Agreement or
applicable law.
VI. Grant of Options
6.1 Grant of Options Upon Redemption of Warrants. Provided that Executive
is then still employed by the Company, upon a redemption by the Company of its
currently outstanding Redeemable Class A Warrants, which redemption, taken
together with any previous exercise of Warrants by holders thereof, results in
the issuance and sale by the Company of at least 1,983,750 shares of common
stock underlying such Warrants, Executive shall receive an additional grant of
options, dated effective as of such redemption date, to purchase 50,000 shares
of common stock of the Company in the form attached hereto as Exhibit A, which
options shall vest on January 23, 2005.
VII. Miscellaneous
7.1 Amendment. This Agreement may be amended only in writing, signed by
both parties.
7.2 Entire Agreement. This Agreement contains the entire understanding of
the parties with regard to all matters contained herein. There are no other
agreements, conditions or representations, oral or written, expressed or
implied, with regard thereto. This Agreement supersedes any prior agreements
relating to the employment of Executive by the Company.
7.3 Assignment. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties and their respective successors, assigns, heirs and
personal representatives and any entity with which the Company may merge or
consolidate or to which the Company may sell substantially all of its assets.
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7.4 Notices. Any notice required to be given under this Agreement shall
be in writing and shall be delivered either in person or by certified or
registered mail, return receipt requested. Any notice by mail shall be
addressed as follows:
If to the Company, to:
Famous Dave's of America, Inc.
00000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 00
Xxxxxxxx, XX 00000
Attention: Chairman of the Board
If to Executive, to:
Xxxxxxx X. Xxxxxx
00000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 00
Xxxxxxxx, XX 00000
or to such other addresses as either party may designate in writing to the
other party from time to time.
7.5 Waiver of Breach. Any waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of a provision of this Agreement.
7.6 Severability. If any one or more of the provisions (or portions
thereof) of this Agreement shall for any reason be held by a final
determination of a court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions (or portions of the provisions) of this
Agreement, and the invalid, illegal or unenforceable provisions shall be deemed
replaced by a provision that is valid, legal and enforceable and that comes
closest to expressing the intention of the parties hereto.
7.7 Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Minnesota, without giving effect to
conflict of law principles.
7.8 Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach of this Agreement shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and a judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction. The arbitration award shall be
subject to review only in the manner provided in the Uniform Arbitration Act as
adopted in Chapter 572, Minnesota Statutes, as the Act is amended at the time
of submission of the issue to arbitration. The arbitrator(s) shall have the
authority to award the prevailing party its costs and reasonable attorney's
fees which shall be paid by the non-prevailing party. In the event the parties
hereto agree
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that it is necessary to litigate any dispute hereunder in a court, the
non-prevailing party shall pay the prevailing party its costs and reasonable
attorney's fees.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date set forth above.
FAMOUS DAVE'S OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxxxx
----------------------------
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
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EXHIBIT A
OPTION AGREEMENT
OPTION AGREEMENT made effective as of this ______ day of ____________,
_____, between FAMOUS DAVE'S OF AMERICA, INC. (the "Company"), and XXXXXXX X.
XXXXXX ("Employee").
BACKGROUND
A. Employee has either been hired to serve as an employee of the Company
or the Company desires to induce Employee to continue to serve the Company as
an employee.
B. The Company has adopted the 1995 Stock Option and Compensation Plan
(the "Plan") pursuant to which shares of Common Stock have been reserved for
issuance under the Plan.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants from the Plan
to Employee the right and option, hereinafter called the Option, to purchase
all or any part of an aggregate of Fifty Thousand (50,000) shares of the common
stock, $.01 par value, of the Company (the "Shares") subject to the terms and
conditions herein set forth.
2. Purchase Price. The purchase price of the shares of Common Stock
covered by the Option shall be the closing bid price of the shares on the date
the Option is granted.
3. Exercise and Vesting of Option. The Option shall be exercisable only
to the extent that all, or any portion thereof, has vested in the Employee.
The Option shall vest on the vesting dates set forth below (hereinafter
referred to singularly as a "Vesting Date" and collectively as "Vesting Dates")
until the Option is fully vested, as set forth in the following schedule:
Total Shares Subject
to Vested Option Vesting Date
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50,000 January 23, 2005
In the event that the Employee ceases to be employed by the Company, for
any reason or no reason, with or without cause, prior to any Vesting Date, that
part of the Option scheduled to vest on such Vesting Date, and all parts of the
Option scheduled to vest in the future, shall not vest and all of Employee's
rights to and under such non-vested parts of the Option shall terminate.
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4. Term of Option. To the extent vested, and except as otherwise provided
in this Agreement, the Option shall be exercisable for 10 years from the date
of this Agreement; provided, however, that in the event that Employee ceases to
be employed by the Company, for any reason or no reason, with or without cause,
Employee or his or her legal representative shall have 90 days from the date of
such termination of his or her position as an employee to exercise any part of
the Option vested pursuant to Section 3 of this Agreement. Upon the expiration
of such 90-day period, or, if earlier, upon the expiration date of the Option
as set forth above, the Option shall terminate and become null and void.
5. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, the Option may be exercised by written notice to the Company.
Such notice shall state the election to exercise the Option and the number of
Shares in respect of which it is being exercised, and shall be signed by the
person or persons so exercising the Option. Such notice shall either: (a) be
accompanied by payment of the full purchase price of such Shares, in which
event the Company shall deliver a certificate or certificates representing such
Shares as soon as practicable after the notice shall be received; or (b) fix a
date not less than five nor more than 10 business days from the date such
notice shall be received by the Company for the payment of the full purchase
price of such Shares against delivery of a certificate or certificates
representing such Shares. Payment of such purchase price may take the form of
cash, shares of stock of the Company, the total market value of which equals
the total purchase price, or any combination of cash and shares of the Company,
the total market value of which equals the total purchase price. Any such
notice shall be deemed given when received by the Company at its principal
place of business. All Shares that shall be purchased upon the exercise of the
Option as provided herein shall be fully paid and non-assessable.
6. Rights of Option Holder. Employee, as holder of the Option, shall not
have any of the rights of a shareholder with respect to the Shares covered by
the Option except to the extent that one or more certificates for such Shares
shall be delivered to him upon the due exercise of all or any part of the
Option.
7. Non-Transferability. The Option shall not be transferable otherwise
than by will or the laws of descent and distribution, and the Option may be
exercised, during the lifetime of Employee, only by Employee. More
particularly (but without limiting the generality of the foregoing), the Option
may not be assigned, transferred (except as provided above), pledged, or
hypothecated in any way, shall not be assignable by operation of law, and shall
not be subject to execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation, or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment,
or similar process upon the Option shall be null and void and without effect.
8. General. The Option is granted pursuant to the Company's 1995 Stock
Option and Compensation Plan and is governed by the terms thereof, which are
incorporated herein by reference. The Company shall at all times during the
term of the Option reserve and keep
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available such number of Shares as will be sufficient to satisfy the
requirements of this Option Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
Option exercise price per share: $________
FAMOUS DAVE'S OF AMERICA, INC.
By________________________________
Its____________________________
___________________________________
XXXXXXX X. XXXXXX, Employee
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