Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
30 day of June, 2000 by and between Chicken Kitchen Corporation (the "Company"),
a Florida corporation, and Xxxxxxxxx xx Xxxxxxxxx(the "Employee").
WITNESSETH:
WHEREAS, the Company was formed to engage in the restaurant business
through franchise locations and Company owned stores; and
WHEREAS, in furtherance of the Company's Business, subject to the terms
and conditions hereinafter set forth, the Company desires to employ the Employee
as the Company's President and Chief Executive Officer, and the Employee desires
to be so employed by the Company.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference.
2. Employment. In exchange for the "Compensation" (as hereinafter
defined) and subject to the other terms and conditions hereinafter set forth,
the Company hereby employs the Employee to render the "Employee Duties" (as
described in Section 3 below) as an employee of the Company, and the Employee
hereby accepts such employment.
3. Employee Duties. For purposes of this Agreement, "Employee Duties"
shall mean serving the Company as its President and Chief Executive Officer. The
Employee's performance of the Employee Duties shall be subject to the direction
of the Company's Board of Directors and the Employee shall perform all such
other duties as may be mutually agreed upon between the Employee and the
Company's Board of Directors.
4. Compensation. In exchange for the Employee's performance of the
Employee Duties hereunder, the Company hereby agrees to pay the Employee the
following compensation (collectively, the "Compensation"):
(a) Base Salary. The Company shall pay the Employee a gross
annual base salary ("Salary") of three hundred thousand dollars ($300,000.00).
Salary shall be paid by the Company in accordance with the Company's regular
payroll practices but not less often than every month during the Term. The
Company's Board of Directors shall review the Employee's Salary annually and may
increase it if the Employee's performance justifies such an increase.
(b) Stock Bonus. The Company acknowledges that Employee's
efforts have been are continue to be invaluable to the expansion and growth of
the Company through the sale of franchise locations. For each new development
agreement or franchise agreement executed
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and entered into by the Company, retroactive to and including the first such
development agreement or franchise agreement, the Company agrees to issue to the
Employee either one hundred thousand (100,000) shares of the Company's Class A
common stock, or the right to open an additional Exempt Franchise, as hereafter
defined, as the Employee in his sole discretion may elect to writing.
(c) Withholding. The Company shall deduct or withhold from all
Compensation payable hereunder all amounts required to be deducted or withheld
from Compensation pursuant to state or federal law.
5. Term. This Agreement shall commence on the date hereof and shall
continue to be in effect unless and until terminated in accordance with Section
6 of this Agreement (the "Term").
6. Termination.
(a) By Company - For Cause. The Company shall have the right
to terminate the employment of the Employee "for cause" immediately upon
providing written notice to the Employee. For purposes of this subparagraph,
"cause" shall mean the occurrence of any of, and only of, the following, each of
which shall be deemed a breach of this Agreement:
(i) Employee's failure (other than as a result of
illness or mental or physical disability), within seven (7) days after written
notice from the Company, to cure any material breach of the Employee Duties or
any of his other obligations under this Agreement; or
(ii) Employee's conviction of commission of any
felony.
In the event the Company elects to terminate the
Employee's employment hereunder as set forth above, the Company shall give
written notice to such effect to the Employee, which notice shall describe in
reasonable detail the actions of the Employee constituting cause.
This Agreement shall also terminate upon the
Employee's death.
(b) By Employee - For Cause. The Employee shall have the right
to terminate his employment under this Agreement for cause immediately upon
sending written notice to the Company in the event the Company fails, within
thirty (30) days of written notice from the Employee, to cure any material
breach of its obligations under this Agreement. If the Employee terminates this
Agreement pursuant to this provision, the Company shall pay the Employee one
million dollars ($1,000,000.00) within ten (10) days of the effective date of
this Agreement's termination.
(c) By Company - For No Cause. This Agreement may be
terminated by the Company for any reason other than those set forth in paragraph
6(a) herein, by providing thirty (30) days' advance written notice of
termination. If the Company terminates this Agreement pursuant to this
provision, the Company shall pay the Employee one million dollars
($1,000,000.00) within ten (10) days of the effective date of this Agreement's
termination.
(d) Employee - For No Cause. In addition to the Employee's
rights to terminate this Agreement pursuant to paragraph 6(b) hereof, the
Employee may also terminate
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this Agreement for any other reason by providing the Company with thirty (30)
days' advance written notice of termination.
7. Change in Control. In the event that the Company's Class B common
stock is determined to be invalid by a court of competent jurisdiction, or if a
trustee/receiver/third party is appointed by a court of competent jurisdiction
to operate the business of the Company ("Change in Control"), the Employee may
terminate this Agreement by written notice to the Company. In such event, the
Company shall pay the Employee a fee of one million dollars ($1,000,000.00)
within ten (10) days of receiving such written notice.
8. Franchise Fee and Royalty Exemption. Whether or not this Agreement
is terminated (whether for cause or not for cause) by either party, the Employee
shall have the irrevocable right to open and establish up to ten (10) franchise
locations (the "Exempt Franchises") on his own behalf without being subject to
the standard franchise fees payable to the Company and without being subject to
the payment of any royalties to the Company in connection with the Exempt
Franchises.
9. Miscellaneous.
(a) Notices. All notices, demands or other communications
given hereunder shall be in writing and shall be deemed to have been duly given
only upon hand delivery thereof or upon the first business day after mailing by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
To Company: Chicken Kitchen Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
To Employee: Xxxxxxxxx xx Xxxxxxxxx
0000 Xxxxx Xxx Xxxx
Xxxxx Xxxxx, XX 00000-0000
or to such other address or such other person as any party shall designate, in
writing, to the other for such purposes and in the manner hereinabove set forth.
(b) Entire Agreement. This Agreement sets forth all the
promises, covenants, agreements, conditions and understandings between the
parties hereto with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous agreements, understandings, inducements
or conditions with respect to said subject matter, expressed or implied, oral or
written, except as herein contained.
(c) Binding Effect; No Assignment. This Agreement shall be
binding upon the parties hereto, their heirs, administrators, successors and
assigns. No party may assign or transfer its interests herein, or delegate its
duties hereunder, without the written consent of the other party. Any assignment
or delegation of duties in violation of this provision shall be null and void.
(d) Amendment. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the parties shall unanimously agree in writing to such Amendment.
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(e) No Waiver. No waiver of any provision of this Agreement
shall be effective unless it is in writing and signed by the party against whom
it is asserted, and any such written waiver shall only be applicable to the
specific instance to which it relates and shall not be deemed to be a continuing
or future waiver.
(f) Gender and Use of Singular and Plural. All pronouns shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties, or their personal representatives,
successors and assigns may require.
(g) Counterparts. This Agreement and any amendments may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together will constitute one and the same instrument.
(h) Headings. The article and section headings contained in
this Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of the Agreement.
(i) Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Florida and any proceeding arising
between the parties in any manner pertaining or related to this Agreement shall,
to the extent permitted by law, be held in Miami-Dade County, Florida.
(j) Further Assurances. The parties hereto will execute and
deliver such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
(k) No Third Party Beneficiary. This Agreement is made solely
and specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns.
(l) Provisions Severable. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the parties do business. If any provision of this Agreement, or the application
thereof to any person or circumstances shall, for any reason or to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
(m) Litigation. If any party hereto is required to engage in
litigation against any other party hereto, either as plaintiff or as defendant,
in order to enforce or defend any rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred, including, but not limited to, all attorneys' fees, court
costs and other expenses incurred throughout all negotiations, trials or appeals
undertaken in order to enforce the Prevailing Party's rights hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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WITNESSES: COMPANY:
Chicken Kitchen Corporation, a Florida
corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------- -------------------------
Vice President
---------------------------------
EMPLOYEE:
/s/ Xxxxxxxxx xx Xxxxxxxxx
--------------------------------- -------------------------
Xxxxxxxxx xx Xxxxxxxxx
---------------------------------
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AMENDMENT TO EMPLOYMENT AGREEMENT
This agreement amends the existing Employment Agreement between Chicken
Kitchen Corporation (the "Company"), a Florida corporation, and Xxxxxxxxx xx
Xxxxxxxxx (the "Employee") (the "Employment Agreement"), as follows:
Paragraph 4b of the Employment Agreement is hereby supplanted and
otherwise replaced with the following subparagraph:
4(b): Stock Option/Franchise Bonus. The Company acknowledges
that Employee's efforts have been and continue to be invaluable to the
expansion and growth of the Company through the sale of franchise
locations. Upon the execution of each new development agreement or
franchise agreement executed and entered into by the Company,
retroactive to and including the first such development agreement or
franchise agreement, the Company agrees to issue to the Employee either
options to purchase one hundred thousand (100,000) shares of the
Company's Class A common stock, or the right to open an additional
Exempt Franchise, as hereafter defined, as the Employee in his sole
discretion may elect to writing, provided however, that the issuance of
these additional stock options and/or Exempt Franchise(s) shall only be
made upon the happening of one or more of the following occurrences:
(i): The voluntary or involuntary termination of
Employee's employment, whether for cause or
not for cause;
(ii): The filing by the Company of, or the
involuntary filing on behalf of the Company
of, or the Company becoming the subject of,
a petition for relief under Title 11 of the
United States Code (the "Bankruptcy Code");
(iii): The death or disability of the Employee;
(iv): A change in control of the Board of
Directors of the Company;
(v): An announced recapitalization or leveraged
buy-out of the Company;
(vi) The merger of the Company into another
entity;
(vii) A vote of the majority of outside directors
comprising a compensation committee,
directing the Company to issue the
additional stock options and/or Exempt
Franchise(s);
(viii) A final determination by a court of
competent jurisdiction that the Company's
Class B common stock is invalid.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Employment Agreement as of September 30, 2000.
WITNESSES: COMPANY:
Chicken Kitchen Corporation, a Florida
corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------- -------------------------
Vice President
---------------------------------
EMPLOYEE:
/s/ Xxxxxxxxx xx Xxxxxxxxx
--------------------------------- -------------------------
Xxxxxxxxx xx Xxxxxxxxx
---------------------------------
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