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EXHIBIT 10(u)
EMPLOYMENT AGREEMENT FOR XXXXX XXXXXXXX
This Employment Agreement ("Agreement") is entered into as of March 1, 1996, by
and between Xxxxx Xxxxxxxx ("Executive") and Family Restaurants, Inc., a
Delaware corporation ("FRI"), Chi-Chi's, Inc., a Delaware corporation
("Chi-Chi's"), and El Torito Restaurants, Inc., a Delaware corporation ("El
Torito") (FRI, Chi-Chi's and El Torito are hereinafter collectively referred to
as the "Company"). Whereas the Company desires to obtain the services of
Executive, and whereas the Executive desires to be employed by the Company upon
the following terms and conditions, the parties agree as follows:
1. POSITION AND DUTIES
Executive will hold the positions and titles of Executive Vice President
("EVP") of FRI and President of Chi-Chi's from the date of this Agreement and
for the period of time specified in this Agreement. As the President of
Chi-Chi's, Executive reports to the President and Chief Executive Officer of
FRI and will assist the President and Chief Executive Officer in developing and
implementing Chi-Chi's ongoing business strategy and objectives. The Executive
may have additional powers and duties as prescribed from time to time by the
President and Chief Executive Officer and/or the Board of Directors ("Board")
of FRI.
Executive agrees to devote all of his business time, skill, attention, and best
efforts to the Company's business and to discharge and fulfill the
responsibilities assigned to him by the Company during his employment under
this Agreement. Executive further agrees that he will not render services to
any other person or entity without the prior written consent of the Company,
and that he will not engage in any activity which conflicts or interferes with
the performance of the duties and responsibilities of his position.
2. TERM OF EMPLOYMENT
This Agreement covers the Executive's employment with the Company from the date
of this Agreement through a period ending on the third anniversary of the date
of this Agreement ("Period of Employment"), or such earlier termination date as
provided for in Section 5 below.
3. LOCATION
Executive will be based at the Company's executive offices in Louisville,
Kentucky, and will be expected to travel to the Company's offices and
restaurants at other locations as needed for the performance of his duties and
responsibilities.
4. COMPENSATION AND BENEFITS
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(a) Salary
During the Period of Employment, in consideration of services to be rendered,
Executive will be paid a salary of not less than $275,000 per year, to be
earned and paid in equal bi-weekly installments, less any deductions required
by law, pursuant to the procedures regularly established by the Company.
Executive may be eligible for periodic increases in base salary as determined
by the Board in its sole and absolute discretion.
(b) Annual Incentive Compensation
During the Period of Employment, the Executive will participate in the
Company's Management Incentive Compensation Plan (the "Plan") as currently
established and as modified from time to time. Under the terms of the current
Plan, Executive's annual incentive award is based upon one or more performance
measures, such as Division sales performance, Division Earnings Before
Interest, Taxes, Depreciation, and Amortization ("EBITDA," as defined in the
Company's SEC filings) performance, and personal objectives. Executive will
have an annual target incentive equal to 80% of his annual base salary. Actual
incentives payable will be determined by the terms of the Plan or successor
plans. The Company reserves the right to modify, amend, or discontinue the
Plan at any time; however, if the Plan is discontinued, it is expected that a
comparable annual incentive plan, as agreed to by the Executive and the
Company, will be implemented in its place.
c) Long Term Incentive Compensation
The Executive will be eligible to participate in the Company's long term
incentive plan ("VCU Plan") which is currently under development. It is
anticipated that Participants' performance will be measured based on the value
created by increases in FRI's EBITDA. Awards under the VCU Plan will be
communicated and agreed to in a separate agreement and will be governed by the
terms of the VCU Plan, except that in the case of termination "By the Company
Without Cause" or for "Good Reason" this Agreement will govern VCU payments.
(d) Benefits
During the Period of Employment, Executive will be entitled to participate in
the Company's standard medical, dental, life, accident, disability, retirement
plans, QRC privileges, and similar plans as shall be generally available to
executive employees of the Company from time to time.
(e) Vacation
During the Period of Employment, the Executive will receive Company paid
vacation time off in accordance with the Company's policies and procedures, as
may be amended from time to time, and which currently provide Executive with 4
weeks vacation per year.
(f) Car Allowance
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During the Period of Employment, the Company will provide Executive with a car
allowance in accordance with the Company's policies and procedures, as may be
amended from time to time, and which currently provide Executive with an
allowance of Twelve Thousand Dollars ($12,000.00) per year.
(g) Expenses
During the Period of Employment, the Company will reimburse Executive for
travel, lodging, entertainment, and other reasonable business expenses incurred
by him in the performance of his duties in accordance with the Company's
general policies, as may be amended from time to time.
5. TERMINATION OF EMPLOYMENT
The Period of Employment shall terminate:
(a) By Death or Disability
Employment will terminate automatically upon the death of Executive or when
Executive begins to receive benefits under the Company's Long Term Disability
Plan. In such cases, the Company will pay the Executive or his Estate:
(i) the salary to which he is entitled through the date of termination;
(ii) a pro rata portion of the Executive's annual incentive award, if any,
to which he is entitled through the date of termination; and,
(iii) the value of VCU awards, determined as follows. If termination
occurs on or before December 1, 1997, the Company will pay a pro rata amount of
the value of all VCU awards determined under the terms of the VCU Plan. If
termination occurs after December 1, 1997, all VCU awards will be valued and
paid in full.
After payment of termination benefits, the Company's obligations under this
Agreement will then cease.
(b) By the Company for Cause
The Company may terminate, without liability, the Period of Employment for
Cause as defined below at any time and without notice. In such event, Company
will pay the Executive the salary and benefits to which he is entitled through
the date of termination and thereafter the Company's obligations will cease.
The Executive will not be entitled to any annual incentive award (VCU payments)
or long term incentive award for the period in which Termination for Cause
occurs.
Termination shall be for Cause if the Executive:
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(i) willfully breaches significant and material duties he is required to
perform or any of the material terms and conditions of this Agreement;
(ii) commits a material act of fraud, dishonesty, misrepresentation or
other act of moral turpitude;
(iii) is convicted of a felony, whether or not committed during the Period
of Employment or in the course of employment hereunder;
(iv) exhibits gross negligence in the performance of his duties, including,
without limitation, the refusal to perform or carry out the resolutions or
directives of the Board of Directors of the Company that are enacted by
majority vote;
(v) is ordered removed from employment with the Company by a regulatory or
other governmental agency pursuant to applicable law.
(c) By the Company Without Cause
The Company may, upon two weeks' written notice, terminate the employment of
the Executive, at any time, for any reason, with or without Cause and without
liability. If employment is terminated by the Company as described in the
preceding sentence:
(i) The Company will pay the Executive his base salary at the rate in
effect at the time of termination for the remainder of the Period of Employment
or one year from the date of termination, whichever is greater;
(ii) If termination occurs in 1996, the Company shall pay to Executive his
maximum annual incentive award(s) for the remainder of the Period of
Employment. If termination occurs after December 31, 1996, the Company shall
pay the Executive annual incentive award amounts equal to the amount of annual
incentive earned by the Executive in the previous fiscal year for the remainder
of the Period of Employment or for one year, whichever is greater; and,
(iii) The value of VCU awards will be determined as follows. If
termination occurs on or before December 1, 1997, the Company will pay a pro
rata amount of the value of all VCU awards as determined under the terms of the
VCU Plan. If termination occurs after December 1, 1997, all VCU awards will be
valued and paid in full.
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The Company will continue to cover the Executive in the Company's benefit
programs through the end of Period of Employment or one year from the date of
termination, whichever is greater. The Company may elect, in its sole and
absolute discretion, to pay severance payments in a lump sum equal to the
present value of the future monthly payments (assuming an 8% discount rate),
including amounts necessary to reimburse the Executive for participation in the
Company's benefit plans under the provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA").
After payment of termination benefits, the Company's obligations under this
Agreement will then cease.
(d) Voluntary Termination
The Executive may terminate employment at any time by giving the Company one
month's advance written notice of such termination. In this event, the Company
will pay the salary and benefits to which the Executive is entitled through the
end of the notice period, and thereafter the Company's obligations under this
Agreement will cease. The Executive will not be entitled to any annual
incentive or long term incentive grant (VCU Plan) for the year in which he
terminates his employment. (e) Termination for "Good Reason"
The Executive may also terminate his employment for "Good Reason." For
purposes of this Agreement, "Good Reason" shall mean:
(i) any assignment to the Executive of duties other than those contemplated
by this Agreement or in accordance with those typically assumed by a President
or which represent a material reduction in the scope and authority of
Executive's position;
(ii) a Company required relocation of Executive's principal place of work
which requires an increase in Executive's normal commute of more than 50 miles
which is not agreed to by Executive; or,
(iii) any reduction in salary below $275,000 per year which is not agreed to
by Executive.
If Executive terminates employment for "Good Reason," the Company will pay the
Executive:
(iv) his base salary at the rate in effect at the time of termination for
the remainder of the Period of Employment or one year from the date of
termination, whichever is greater;
(v) If termination occurs in 1996, the Company shall pay to Executive his
maximum annual incentive award(s) for the remainder of the Period of
Employment. If termination occurs after December 31, 1996, the Company shall
pay the Executive annual incentive award amounts equal to the amount of annual
incentive earned by the Executive in the previous fiscal year for the remainder
of the Period of Employment or for one year, whichever is greater;
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(vi) the value of VCU awards, determined as follows. If termination occurs
on or before December 1, 1997, the Company will pay a pro rata amount of the
value of all VCU awards as determined under the terms of the VCU Plan. If
termination occurs after December 1, 1997, all VCU awards will be valued and
paid in full.
The Company will continue to cover the Executive in the Company's benefit
programs through the end of the Period of Employment or one year from the date
of termination, whichever is greater. The Company may elect, in its sole and
absolute discretion, to pay severance payments in a lump sum equal to the
present value of the future monthly payments (assuming an 8% discount rate),
including amounts necessary to reimburse the Executive for participation in the
Company's benefit plans under the provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA").
After payment of termination benefits, the Company's obligations under this
Agreement will then cease.
(f) Termination Obligations
Executive acknowledges and agrees that all personal property and equipment
furnished to or prepared by the Executive in the course of or incidental to his
employment belong to the Company and shall be promptly returned to the Company
upon termination of employment by Executive of the Company with or without
Cause or Good Reason. Executive further acknowledges and agrees that all
confidential materials and documents, whether written or contained in computer
files, diskettes, or any other media, remain the property of the Company, shall
be promptly returned to the Company upon termination of employment, and shall
not retain any copies or duplicates or originals of such documents or materials
in any format unless the Company agrees in writing to permit such retention.
6. PROPRIETARY INFORMATION
Executive acknowledges that he has had access to proprietary information, trade
secrets, and confidential material of the Company including, without
limitation, information regarding the Company's business, operations, trade
secret and other proprietary, confidential information, lending and
distribution processes, and other management and financial information.
Executive agrees, without limitation in time or until such information shall
become public other than by Executive's unauthorized disclosure, to maintain
the confidentiality of such information and refrain from divulging, disclosing,
or otherwise using said confidential information to the detriment of the
Company or its subsidiaries, affiliates, successors or assigns, or for any
other purpose.
7. ASSIGNMENT
The Executive's rights and obligations under this Agreement may not be
assigned, and any attempted assignment shall be null and void. The Company may
assign this Agreement, but only to a successor or affiliated organization.
8. NOTICES
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All notices referred to in this Agreement shall be in writing and delivered to
the Company at its principal address, 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx 00000, or to the Executive at 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
9. ENTIRE AGREEMENT
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of the Executive
by the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement
shall constitute the complete and exclusive statement of its terms, and that no
extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
10. AMENDMENTS AND WAIVERS
This Agreement may not be modified, amended, or terminated except in writing,
signed by the Executive and by a duly authorized representative of the Company
other than the Executive. No failure to exercise and no delay in exercising
any right, remedy, or power hereunder shall operate as a waiver thereof.
11. SEVERABILITY AND ENFORCEMENT
If any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this
Agreement shall remain in full force and effect.
12. GOVERNING LAW
This Agreement shall be interpreted and construed in compliance with the laws
of the State of California, unless a superseding Federal law is applicable.
13. ARBITRATION
The parties agree that any disputes that may arise in connection with, arising
out of or relating to this Agreement, or any dispute that relates in any way,
in whole or in part, to Executive's employment with the Company, the
termination of that employment or any other dispute by and between the parties
or their successors or assigns, will be submitted to binding arbitration in Los
Angeles, California, according to the rules and procedures of the American
Arbitration Association and California Code of Civil Procedure Section 1283.05.
The parties agree that each will bear his or its own attorney's fees
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and costs in connection with any such arbitration and each party will pay half
of any costs associated with the arbitration. This arbitration obligation
extends to any and all claims that may arise by and between the parties or
their successors, assigns or affiliates, and expressly extends to, without
limitation, claims or causes of action for wrongful termination, impairment of
ability to compete in the open labor market, breach of an express or implied
contract, breach of any collective bargaining agreement, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud,
misrepresentation, defamation, slander, infliction of emotional distress,
disability, loss of earning, and claims under the California or Colorado
constitutions, the United States Constitution, and applicable state and federal
fair state labor statutes and regulations, including, but not limited to, the
Civil Rights Act of 1964, as amended, the Fair Labor Standards Acts, as
amended, the Americans With Disabilities Act of 1990, the Rehabilitation Act of
1973, as amended, the Employee Retirement Income Security Act of 1974, as
amended, and the Age Discrimination in Employment Act of 1967.
In witness whereof, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer.
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Xxxxx Xxxxxxxx
Family Restaurants, Inc. El Torito Restaurants, Inc.
By:____________________________________ By:___________________________
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx Xx.
President and Chief Executive Officer Vice President
Chi-Chi's, Inc.
By:_____________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer
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