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Exhibit (10)(d)
EMPLOYMENT AGREEMENT
This Agreement made by and between Xxxxxx'x Restaurants, Inc., an Ohio
corporation, hereinafter referred to as "CORPORATION", and Xxxx X. Xxxxx,
hereinafter referred to as "XXXXX", WITNESSETH:
WHEREAS, Xxxxx has been employed by the Corporation pursuant to an
employment agreement dated May 16, 1997 which expires on May 28, 2000;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties do hereby agree upon the terms and conditions of this
Employment Agreement which shall become effective as of May 29, 2000.
1. EMPLOYMENT. The Corporation agrees to employ Xxxxx and Xxxxx agrees
to serve the Corporation upon the terms and conditions hereinafter set forth.
2. TERM. The "INITIAL TERM" of this Agreement shall be for a period of
one (1) fiscal year commencing May 29, 2000 and shall continue in effect through
June 3, 2001. This Employment Agreement shall be renewable at the option of the
Corporation for up to six (6) additional one (1) year terms.
3. DUTIES. Xxxxx agrees to serve the Corporation and any and all of its
subsidiaries and divisions faithfully and to the best of his ability under the
direction of the Board of Directors, devoting such portion of his time, energy
and skill to such employment, performing from time to time such services and
acting in such office or capacity as the Board of Directors shall request or
direct.
4. COMPENSATION. The Corporation agrees to pay Xxxxx as base salary for
his services, the sum of One Hundred Fifty Thousand Dollars ($150,000.00) per
annum payable in equal monthly or other installments in accordance with the
general practice of the Corporation. If the Corporation renews the Agreement
beyond June 3, 2001, it shall pay Xxxxx as base salary for his services, One
Hundred Thousand Dollars ($100,000.00) per annum, payable in equal monthly or
other installments, in accordance with the general practice of the Corporation.
5. RETIREMENT. Xxxxx may elect to retire at any time. Upon Xxxxx'x
retirement, this Agreement shall terminate, except that the provisions of
Paragraphs 6 and 7 shall survive.
6. RESTRICTIVE COVENANTS. Xxxxx agrees that during the term of this
Agreement, any renewal thereof, and for the period during which the monthly
payments described in paragraph 7 are made to him, he will not, directly or
indirectly, render any services of an advisory nature or otherwise to, or become
employed by or participate in, any business competitive with any of the
businesses of the Corporation or of its subsidiaries or its divisions, without
the prior written consent of the Corporation; provided, however, that nothing
herein shall prohibit Xxxxx from:
(a) rendering services to, participating in, engaging in, or
otherwise becoming employed by, any business which is related in any
way to the Corporation, such as, but not limited to, a franchisee;
(b) owning stock or other securities, or serving as a director
or officer of a corporation conducting a business referred to in
subparagraph (a);
(c) owning stock or other securities of competitors which are
sold in a public market and which comprise less than five percent (5%)
of the total outstanding stock of such corporation.
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Exhibit (10)(d)
7. DEFERRED COMPENSATION. In addition to the compensation provided in
the foregoing paragraph 4, and provided that Xxxxx shall not have willfully
violated any of the provisions of this agreement or any renewal agreement, then,
upon the first to occur of Xxxxx'x retirement, death, termination of employment
due to disability or other termination of employment (including the expiration
of this Agreement), the Corporation shall pay Xxxxx the sum of Two Hundred
Fourteen Thousand Fifty Dollars ($214,050) per year, for a period of ten (10)
consecutive years thereafter, payable on a monthly basis.
If the payments commence on account of Xxxxx'x death or if Xxxxx dies
during the ten year period, the Corporation shall make the remaining monthly
payments to his widow. If Xxxxx is not survived by a widow the Corporation shall
make any remaining payments to the person or persons designated by Xxxxx in a
writing delivered to the Corporation. If he does not make such designation, the
payments shall go to his estate. If payments are made to Xxxxx'x widow and she
dies the Corporation shall make any remaining payments to her estate. The
monthly payments provided for under this subparagraph shall be adjusted on the
first anniversary date of the commencement of such payments and on each
anniversary date thereafter to reflect fifty percent (50%) of the latest annual
change in the Consumer Price Index for All Urban Consumers ("CPI-U") published
by the U.S. Department of Labor, Bureau of Labor Statistics.
At any time during the payment of the deferred compensation described
above, the person then entitled to receive monthly payments shall have the right
to convert such monthly payments to a single lump sum payment. Such right shall
be exercised by notice in writing delivered to the Corporation. The amount of
such single lump sum shall be the then present value of all remaining payments
determined without regard to any future cost of living adjustments, discounted
using the "Applicable Federal Rate" which is appropriate for the remaining term
of the deferred compensation, as determined by the Internal Revenue Service
pursuant to Section 1274 of the Internal Revenue Code. Payment of the single
lump sum to the person then entitled to receive monthly payments and such
person's receipt therefore, shall extinguish all further obligations of the
Corporation to pay deferred compensation under this Agreement as well as the
rights of all vested and contingent successor beneficiaries of such deferred
compensation provisions.
8. DISABILITY. For the purposes of Paragraph 7 above, a termination of
Xxxxx'x employment due to disability shall occur when all the following
conditions are met:
(a) Xxxxx shall become physically or mentally incapable
(excluding temporary absences due to ordinary illnesses) of properly
performing the services required of him in accordance with his
obligations under Paragraph 3 hereof or similar provisions of any
renewal agreement.
(b) Such incapacity shall exist or be reasonably expected to
exist for more than ninety (90) days in the aggregate during any period
of twelve (12) consecutive months.
(c) Either Xxxxx or the Corporation shall have given the other
thirty (30) days' written notice of his or its intention to terminate
the active employment of Xxxxx because of such disability.
9. PART TIME EMPLOYMENT. Xxxxx may reduce the scope of his employment
from full time to "part time" upon written notice to the Corporation. Part time
shall mean three days or less per week devoted to the business of the
Corporation. Xxxxx'x compensation during any period of part time employment
shall be fifty percent (50%) of the base salary to which he would otherwise be
entitled.
10. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of any Successor of the Corporation and any such Successor shall be
deemed substituted for the Corporation under the terms of this Agreement. As
used in this Agreement, the term "SUCCESSOR" shall include any person, firm,
corporation or other business entity which at any time, whether by merger,
purchase or otherwise, acquires all or substantially all of the capital stock,
assets or business of the Corporation.
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Exhibit (10)(d)
IN WITNESS WHEREOF, Xxxxxx'x Restaurants, Inc. has caused this
Agreement to be executed in its corporate name by XXXXXX X. XXXXXX, its VICE
PRESIDENT, thereunto duly authorized by its Board of Directors, and Xxxx X.
Xxxxx has hereunto set his hand on the date set forth below.
DATED: June 2, 2000 /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
XXXXXX'X RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Its: Vice President
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