RUBIO’S RESTAURANTS, INC. AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
XXXXX’X
RESTAURANTS, INC.
AMENDED
AND RESTATED CHANGE IN CONTROL AGREEMENT
This
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (the “Agreement”) is
entered into by and between Xxxxx’x Restaurants, Inc., a Delaware corporation
(the “Company”), and Xxxx
X. Xxxxx, an individual (the “Executive”), dated as
of January 8, 2010.
WHEREAS,
the Board of Directors of the Company (the “Board”), has
determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change in Control (as
defined in Section 1(a) of this Agreement).
WHEREAS,
the Board believes it is imperative to diminish the inevitable distraction of
the Executive by virtue of the personal uncertainties and risks created by a
pending or threatened Change in Control and to encourage the Executive’s full
attention and dedication to the Company currently and in the event of any
threatened or pending Change in Control, and to provide the Executive with
certain benefits upon Executive’s Involuntary Termination within the twelve (12)
month period immediately following a Change in Control.
NOW,
THEREFORE, in consideration of the mutual promises and agreements contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Executive and the Company
hereby agree as follows:
1. Certain
Definitions.
(a) “Change of
Control” shall mean the occurrence of any of the following: (i) the sale,
lease, conveyance or other disposition of all or substantially all of the
Company’s assets to any “person” (as such term is used in Section 13(d) of the
Exchange Act of 1934, as amended), entity or group of persons acting in concert;
(ii) any person or group of persons becoming the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the total voting power represented by
the Company’s then outstanding voting securities; (iii) a merger, consolidation
or other transaction of the Company with or into any other corporation, entity
or person, other than a transaction in which the holders of at least 50% of the
shares of capital stock of the Company outstanding immediately prior thereto
continue to hold (either by voting securities remaining outstanding or by their
being converted into voting securities of the surviving entity or its
controlling entity) at least 50% of the total voting power represented by the
voting securities of the Company or such surviving entity (or its controlling
entity) outstanding immediately after such transaction; or (iv) a contest for
the election or removal of members of the Board of Directors of the Company that
results in the removal from the Board of at least 50% of the incumbent members
of the Board.
(b) “Involuntary
Termination” shall mean (i) the termination of Executive’s employment by
the Company (or the surviving entity following a Change of Control) for reasons
other than for Cause or (ii) Executive’s resignation for Good Reason, as those
terms are defined below.
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(c) “Good
Reason” shall mean Executive’s resignation within sixty (60) days after
the occurrence of any of the following events without Executive’s consent: (i) a
material reduction in the aggregate level of Executive’s base salary and
incentive compensation opportunity (other than Company-wide reductions or
reductions generally applicable to positions of comparable management authority
within the surviving entity following a Change of Control); (ii) a material
reduction of Executive’s duties, responsibilities and requirements so that
Executive’s duties are no longer consistent with Executive’s position
immediately prior to a Change of Control; or (iii) relocation of Executive’s
primary place of employment by the Company (or the surviving entity following a
Change of Control) to a facility or location more than fifty (50) miles from
Executive’s primary place of employment immediately prior to the Change in
Control.
(d) “Cause”
shall mean Executive’s: (i) acts of theft, embezzlement, fraud, material
dishonesty or misappropriation of any of the Company’s (or a surviving entity’s
following a Change of Control) property, or conviction for, or the entry of a
plea of guilty or nolo contendere to, any felony, or to any other crime
involving dishonesty, moral turpitude, fraud or embezzlement; (ii) breach of
Company’s Nondisclosure or Confidentiality Agreement, which shall not be subject
to any cure; (iii) breach of any material provision of any written agreement
between the Executive and the Company (or the surviving entity following a
Change of Control), other than a breach as described in subsection (ii) above,
and the failure of Executive to cure such beach, if susceptible to cure, within
ten (10) days following Executive’s receipt of written notice of such breach;
(iv) failure or refusal to perform, or material negligence in the performance
of, Executive’s duties to the Company (or the surviving entity following a
Change of Control), or refusal or failure to follow or carry out any reasonable
direction of the board of directors of the Company (or of the applicable
supervisory personnel of the surviving entity following a Change of Control),
which failure or refusal, if susceptible to cure, remains uncured or continues
or recurs after ten (10) days following Executive’s receipt of written notice
specifying the nature of such failure or refusal; (v) inability to perform the
essential functions of Executive’s position, with or without reasonable
accommodation, due to a mental or physical disability; or (vi)
death.
2. Severance Package for
Involuntary Termination Following a Change in Control. If,
Executive is subject to Involuntary Termination during the twelve (12) month
period immediately following a Change in Control, the Company shall provide
Executive with a “Severance Package” that shall include (a) a “Severance
Payment” equivalent to twelve (12) months of Executive’s base salary in effect
immediately prior to the Change in Control, payable in accordance with Company’s
first regular payroll cycle occurring sixty (60) days following the termination
date; and (b) the Company’s payment of the premiums required to continue
Executive’s group health care coverage for a period of twelve (12) months
following Executive’s termination, under the applicable provisions of the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”), provided that
Executive elects to continue and remains eligible for these benefits under
COBRA, and does not become eligible for health coverage through another employer
during this period. In addition, if Executive’s spouse and/or
dependents were enrolled in the Company’s group health plan on the effective
date of Executive’s separation from the Company, the Company will pay the COBRA
premiums for Executive’s eligible dependents during the same severance period,
but only to the same extent that such dependents’ premiums under such plan were
paid by the Company prior to the effective date of Executive’s separation from
the Company. The provisions in this Agreement will not affect the
continuation coverage rules under COBRA, except that the Company’s payment of
any applicable premiums during the severance period will be credited as payment
by Executive for purposes of Executive’s payment required under
COBRA. At the conclusion of the severance period, Executive will be
responsible for the entire payment of premiums required under COBRA for the
remaining duration of Executive’s and Executive’s dependents’ eligibility for
COBRA, if any. Nothing in this letter shall restrict the ability of
the Company or its successor from changing the provider and/or some or all of
the terms of such health insurance plan, provided that all similarly situated
participants are treated the same. Executive will only receive the
Severance Package if Executive: (i) complies with all surviving
provisions of this Agreement; (ii) executes a full general release in a
form acceptable to the Company (or the surviving entity following a Change of
Control), releasing all claims, known or unknown, that Executive may have
against the Company (and the surviving entity following a Change of Control)
arising out of or any way related to Executive’s employment or termination of
employment with Company (or the surviving entity), and such release has become
effective in accordance with its terms prior to the sixtieth (60th) day
following the termination date;
(iii) agrees to cooperate and assist the Company with pending
litigation during the twelve (12) month period Executive is receiving benefits
pursuant to the Severance Package; and (iv) agrees not make any voluntary
statements, written or oral, or cause or encourage others to make any such
statements that defame, disparage or in any way criticize the personal and/or
business reputations, practices or conduct of the Company (or the surviving
entity following a Change of Control).
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3. Application of
Section 409A.
(a) Notwithstanding
anything set forth in this Agreement to the contrary, no amount payable pursuant
to this Agreement which constitutes a “deferral of compensation” within the
meaning of Section 409A of the Code (“Section 409A”) shall be paid
unless and until the Executive has incurred a “separation from service” within
the meaning of Section 409A. Further, to the extent that the
Executive is a “specified employee” within the meaning of Section 409A as
of the date of the Executive’s separation from service, no amount that
constitutes a deferral of compensation which is payable on account of the
Executive’s separation from service shall be paid to the Executive before the
date (the “Delayed Payment Date”) which is the first (1st) day of
the seventh (7th) month
after the date of the Executive’s separation from service or, if earlier, the
date of the Executive’s death following such separation from
service. All such amounts that would, but for this Section 3,
become payable prior to the Delayed Payment Date will be accumulated and paid on
the Delayed Payment Date.
(b) The
Company intends that income provided to the Executive pursuant to this Agreement
will not be subject to taxation under Section 409A. The
provisions of this Agreement shall be interpreted and construed in favor of
satisfying any applicable requirements of Section 409A. The
Company and the Executive agree to negotiate in good faith to reform any
provisions of this Agreement to maintain to the maximum extent practicable the
original intent of the applicable provisions without violating the provisions of
Section 409A, if the Company deems such reformation necessary or advisable
pursuant to guidance under Section 409A to avoid the incurrence of any such
interest and penalties. Such reformation shall not result in a
reduction of the aggregate amount of payments or benefits under this
Agreement. However,
the Company does not guarantee any particular tax effect for income provided to
the Executive pursuant
to this Agreement. In any event, except for the Company’s responsibility
to withhold applicable income and employment taxes from compensation paid or
provided to the Executive, the Company shall not be responsible for the payment
of any applicable taxes on compensation paid or provided to the Executive
pursuant to this Agreement.
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4. At-Will
Employment. Nothing in this Agreement is intended to or should
be construed to contradict, modify or alter the at-will nature of Executive’s
employment with Company. Executive’s employment with Company remains
at-will, is not for any specified period, and may be terminated at any time,
with or without Cause or advance notice, by either Executive or Company pursuant
to the terms of this Agreement. Any change to the at-will employment
relationship must be by specific, written agreement signed by Executive and
Company’s CEO.
5. No Other
Severance. Executive acknowledges and agrees that to the
extent Executive is entitled to receive any benefits under this Agreement,
Executive hereby waives his rights, if any, to receive any benefits pursuant to
any other agreement or plan providing for severance or similar
benefits.
6. Escrow
Account Immediately prior to a Change of Control transaction,
the Company agrees to establish and maintain an escrow account upon the
reasonable request of the Executive, pursuant to which the Company shall escrow
such amount of funds required to pay the Executive the maximum amount of
severance payments which the Executive may become legally entitled to following
a Change of Control transaction.
7. Successors and
Assigns. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Company. Executive shall not be entitled to assign any
of Executive’s rights or obligations under this Agreement.
8. Applicable
Law. The validity, interpretation and performance of this
Agreement shall be construed and interpreted according to the laws of the United
States of America and the State of California.
9. Entire Agreement;
Modification. This Agreement is intended to be the entire
agreement between the parties and supersedes and cancels any and all other and
prior agreements, written or oral, between the parties regarding this subject
matter. This Agreement may be amended only by a written instrument
executed by all parties hereto.
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Dated:
January 8, 2010
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By:
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/s/
Xxxx X. Xxxxx
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Xxxx
X. Xxxxx
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Dated:
January 8, 2010
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Xxxxx’x Restaurants, Inc. | ||
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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President
and Chief Executive
Officer
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