Exhibit 10.05 (c) +
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 1st day of March, 2001, between
XXXXXX'X RESTAURANT GROUP, INC., a Delaware corporation ("Morton's" or
"Company") and XXXXX XXXXXXXX ("Xxxxxxxx"), an individual.
WHEREAS, Morton's has employed, and wishes to continue to employ, Xxxxxxxx
as Secretary of Morton's and various of its affiliates and subsidiaries (in the
aggregate, the "Morton's Subs").
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment.
(a) Morton's hereby continues to employ Xxxxxxxx and Xxxxxxxx hereby
accepts continued employment for a term beginning as of the 1st day of January,
2001 (the "Commencement Date"), and continuing thereafter such that at any day
following the Commencement Date the term of Xxxxxxxx'x employment shall be three
(3) years (the "Employment Period"), unless sooner terminated as hereinafter
provided.
(b) At any time during the Employment Period, Morton's may send a
notice to Xxxxxxxx, terminating her employment ("Morton's Notice"). Morton's
Notice shall set forth the date of termination, which shall in no event be
earlier than thirty-six (36) months after the date of delivery to Xxxxxxxx of
Morton's Notice. Following the delivery of Morton's Notice, Morton's
compensation obligation to Xxxxxxxx shall be as set forth in Section 7(f).
2. Compensation; Benefits; Expenses; and Bonus
(a) As compensation for the services to be rendered hereunder, until
December 31, 2001, Morton's shall pay to Xxxxxxxx a base salary (as adjusted
thereafter pursuant to the next sentence hereof, the "Base Salary") at the rate
of $125,000 per annum, payable in equal installments at such times as shall be
agreed upon by Morton's and Xxxxxxxx, but no less frequently than monthly. The
annual Base Salary for the calendar year commencing January 1, 2002 and for each
calendar year thereafter shall increase at no less than the rate of increase in
the Consumer Price Index for Urban Wage Earners and Clerical Workers, as
compiled by the U.S. Bureau
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of Labor Statistics for the preceding year (the "CPI"). The Base Salary may be
increased at a faster rate than that of the CPI, at the discretion of the Board
of Directors.
(b) Xxxxxxxx shall be eligible to participate in benefit programs,
if any, of Morton's which are in effect for its executive personnel from time to
time, including but not limited to profit sharing, pension, insurance, incentive
or other supplemental or special compensation plans or arrangements, and stock
purchase programs, in each case in accordance with the terms of such program.
(c) Morton's recognizes that Xxxxxxxx, in rendering the services
hereunder, will be required to spend sums of money for the entertainment of
various persons and representatives of companies and organizations with whom
Morton's is having, or would like to have business relations, and otherwise in
performance of her duties hereunder. Morton's will advance and/or reimburse
reasonable traveling or other out-of-pocket expenses incurred or to be incurred
by Xxxxxxxx in rendering the services hereunder on behalf of Morton's, and
Morton's will advance such funds to Xxxxxxxx, or reimburse Xxxxxxxx upon
presentation of vouchers or other documents reasonably necessary to verify the
expenditures and sufficient, in form and substance, to satisfy Internal Revenue
Service ("IRS") requirements for any traveling or other expenses.
(d) Morton's recognizes Xxxxxxxx'x need for an automobile for
business purposes and to facilitate the performance of Xxxxxxxx'x duties
hereunder. Therefore, Morton's shall pay to Xxxxxxxx a monthly automobile
allowance to be used by Xxxxxxxx towards the purchase or lease of an automobile,
(the make and model of which shall be selected by Xxxxxxxx), and all costs
related to the operation and maintenance of such automobile.
(e) Morton's may elect to pay annual bonuses. The decision to pay
any bonuses and the actual payment of such bonuses, if any, shall be at the sole
discretion of the Company.
3. Duties.
Xxxxxxxx shall have the title and perform the duties of Secretary of
Morton's. Xxxxxxxx shall have custody of the seal of the Company and when
required by the Board of Directors, or when any instrument shall have been
signed by the President duly authorized to sign the same, or when necessary to
attest any proceedings of the shareholders or directors, shall affix it to any
instrument requiring the same and shall attest the same with her signature,
provided that the seal may be affixed by the President or Vice-President or
other officer of the Corporation to any document executed by either of them
respectively on behalf of the
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Corporation which does not require the attestation of the Secretary. She shall
attend to the giving and serving of notices of meetings. She shall have charge
of such books and papers as properly belong to her office or as may be committed
to her care by the Board of Directors. She shall perform such other duties as
appertain to her office or as may be required by the Board of Directors.
Xxxxxxxx shall also serve, if elected or appointed, to other offices of the
Company and as a director and an officer of any and all Morton's Subs.
4. Extent Of Services; Vacations.
(a) Except as provided in Section 4(b) below, Xxxxxxxx shall devote
her full professional time, energies, skills and attention to the performance of
her duties and responsibilities hereunder.
(b) Xxxxxxxx shall be entitled to take periodic vacations consistent
with past practices and with her duties hereunder.
5. Working Facilities. Xxxxxxxx shall be furnished with a private office,
stenographic help and services suitable to her position and adequate for the
performance of her duties.
6. Confidentiality, etc.
Upon the termination of the Employment Period or at such other time
as Morton's may request, Xxxxxxxx agrees to return to the Company all originals
and copies, whether generated by Xxxxxxxx or anyone else, of all material
documents, files, lists, forms, contracts, notebooks, rolodexes, keys, credit
cards, and any other material which, during the Employment Period, came into,
and continue to be in, Xxxxxxxx'x possession and relate to Morton's, the
Morton's Subs, their respective businesses or their potential acquisitions and
investments.
7. Death Or Disability Of Xxxxxxxx; Other Termination.
(a) If Xxxxxxxx is unable to perform her duties by reason of illness
or incapacity (a "Disability") for a continuous period of more than six (6)
months, the compensation otherwise payable to her during the continued period of
such illness or incapacity after such six (6) month period shall be at the
annual rate of $41,666.66. Xxxxxxxx'x full compensation shall be reinstated upon
her return to employment and the discharge of her full duties hereunder.
Notwithstanding anything herein to the contrary, if Xxxxxxxx shall be absent
from her employment by reason of illness or incapacity for a continuous period
of more than eighteen (18) months, this Agreement shall terminate, except
Xxxxxxxx'x legal representatives shall be entitled to receive the compensation
herein provided to the last day
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of the eighteenth month of such continuous period.
(b) If Xxxxxxxx dies during the term of this Agreement, this
Agreement shall terminate, except that Xxxxxxxx'x legal representatives shall be
entitled to receive the compensation herein provided only to the last day of the
month in which Xxxxxxxx'x death occurs.
(c) In addition to Morton's rights set forth in clauses (a) and (b)
above, subject to clause (d) below, this Agreement shall terminate in the event:
(i) A licensed physician shall determine that Xxxxxxxx is a
"drug dependent person" (as defined in the New York Mental Hygiene Law or any
successor statute); or
(ii) Xxxxxxxx shall be declared to be incompetent pursuant to
the New York Mental Hygiene Law or any successor or similar statute, or a
conservator of her property shall have been appointed pursuant to the New York
Mental Hygiene Law or any successor or similar statute; or
(iii) Xxxxxxxx is convicted in a court of law of theft,
embezzlement, fraud or other felony or of any other crime that constitutes a
felony in the jurisdiction involved; or
(iv) Xxxxxxxx willfully breaches a substantial provision of
this Agreement or commits any act not approved by the Board of Directors of the
Company involving any material conflict of interest which substantially
adversely affects the Company or any Morton's Sub.
(d) In the event of a termination pursuant to Section 7(c)(iv)
above, Morton's shall deliver to Xxxxxxxx a notice setting forth a reasonably
detailed description of the breached provision or unauthorized conduct
constituting the basis for termination, and this Agreement shall not terminate
unless Xxxxxxxx fails to cure same within 20 days after receipt of notice, or,
if Xxxxxxxx cannot reasonably be expected to effect a cure within such 20 day
period, if Xxxxxxxx fails to commence such cure within such 20 day period and
diligently proceed to effect same within 90 days after the aforesaid notice. In
the event of a termination pursuant to Section 7(c)(i) - (iii) above, Morton's
shall deliver to Xxxxxxxx a notice stating which of the ground(s) it alleges for
termination of this Agreement, together with a reasonably detailed description
of such ground(s).
(e) Xxxxxxxx'x obligations under this Agreement shall terminate at
Xxxxxxxx'x option for any one of the following events ("Good Reason") (i)
Xxxxxxxx is assigned any duties or responsibilities inconsistent with her
position as Secretary of
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Morton's (including status, offices, titles and reporting requirements), or (ii)
Morton's fails to pay any sum of money to Xxxxxxxx when the same becomes due and
payable and such failure continues for thirty (30) days after such sum of money
is due. Xxxxxxxx'x good faith determination of Good Reason shall be conclusive
upon the parties for all purposes of this Agreement.
(f) Subject to clause (g) below, in the event (i) this Agreement
terminates pursuant to Section 7(e) or (ii) Morton's has delivered Morton's
Notice (the date of such termination or delivery being the "Measuring Date"),
Morton's covenants and agrees to pay in a lump sum in cash within ten (10) days
after the Measuring Date as damages the product of three (3) multiplied by
$162,750. Xxxxxxxx agrees to use her best efforts to seek alternative employment
as an executive earning a salary reasonably comparable with that being paid to
Xxxxxxxx by Morton's, upon any such termination. Upon Xxxxxxxx'x acquisition of
such alternative employment, she shall repay to Morton's an amount equal to the
product of $3,472 multiplied by "X", where X equals the difference between 36
and the number of months between the Measuring Date and the date Xxxxxxxx
commences such new employment. Morton's shall also pay to Xxxxxxxx all
reasonable expenses which Xxxxxxxx may then or thereafter incur for legal
expenses and all other reasonable costs paid or incurred by Xxxxxxxx for
enforcing payment of such amounts.
(g) Notwithstanding any provision of this Agreement to the contrary,
to the extent any amounts payable to Xxxxxxxx in connection with a "Change of
Control" (as defined in the Change of Control Agreement between Morton's and
Xxxxxxxx dated March 1, 2001, as such Change of Control Agreement may be further
amended from time to time (the "Change of Control Agreement")), whether pursuant
to this Agreement, the Change of Control Agreement or under any other employment
agreement, employment arrangement or similar plan, contract or program of
severance (collectively, the "Total Severance Benefits"), would constitute
"Parachute Payments" (as defined in Section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended), the Total Severance Benefits payable to Xxxxxxxx
shall be reduced to the extent necessary such that the Total Severance Benefits
no longer constitute Parachute Payments. Xxxxxxxx may elect, in her sole
discretion, which of the Total Severance Benefits shall be eliminated or reduced
(as long as after such election the Total Severance Benefits no longer
constitute Parachute Payments). For purposes of this Section 7(g), the
determination of whether payments to Xxxxxxxx would constitute Parachute
Payments shall be made by Xxxxxxxx, in good faith.
8. Insurance.
(a) Morton's in its discretion at any time after the execution of
this Agreement, may apply for and procure as owner and
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for its own benefit, insurance on the life of Xxxxxxxx, in such amounts and in
such form or forms as Morton's may choose. Xxxxxxxx shall have no interest
whatsoever in any such policy or policies, but she shall, at the request of
Morton's, submit to such medical examinations, supply such information, and
execute such documents as may be required by the insurance company or companies
to whom Morton's has applied for such insurance.
(b) Morton's shall, for so long as Xxxxxxxx is employed by it, pay
for the benefit of Xxxxxxxx the premium on the medical, dental, life and
disability policies presently being provided to executive employees of Morton's,
or policies substantially similar to same.
(c) Upon the termination of Xxxxxxxx'x employment, Xxxxxxxx shall
have the option, within thirty (30) days thereafter, to acquire Morton's
interest in the policy or policies that may be procured by Morton's pursuant to
subparagraph (a) above, to the extent permitted by such policy or policies, upon
payment to Morton's of such policy's or policies' then cash surrender value. If
Xxxxxxxx exercises such option, Morton's will take whatever reasonable steps are
necessary to assign all the rights in the entire policy or policies to Xxxxxxxx,
to the extent permitted by such policy or policies, and to deliver physical
possession of the policy or policies to Xxxxxxxx. If Xxxxxxxx shall fail to
exercise such option, Morton's may cancel the policy or policies and take down
their cash surrender value, and neither Xxxxxxxx nor any person claiming through
Xxxxxxxx shall have any rights whatsoever in any part of the policy or policies
or their values.
9. Survival Of Obligations. Notwithstanding the expiration of the term of
this Agreement or any termination of this Agreement, any duty or obligation
which has been incurred and which has not been fully observed, performed and/or
discharged, and any right, unconditional or conditional, which has been created
and has not been fully enjoyed, enforced, and/or satisfied, shall survive such
expiration or termination until such duty or obligation has been fully observed,
performed and/or discharged and such right has been enforced, enjoyed and/or
satisfied.
10. Remedies, etc. The parties recognize that irreparable damage will
result in the event that the provisions of Section 6 hereof shall not be
specifically enforced. If any dispute arises concerning action in violation of
any such provision, the parties hereto agree that an injunction be issued
restraining such action pending determination of such controversy and that no
bond or other security shall be required in connection therewith. If any dispute
arises concerning the right or obligation of any party hereto, such right or
obligation shall be enforceable by a decree of specific performance. Such
remedies shall, however, not be exclusive of and
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shall be in addition to any other remedies which the parties may have, including
injunctive relief and actions for damages.
11. Notices. All notices hereunder shall be in writing and shall be
mailed, delivered by hand or telecopied. All such notices shall be deemed to
have been given or delivered three days after the date mailed in any general or
branch United States Post Office enclosed in a registered postpaid envelope
addressed to the address of the respective parties stated below, on the date of
the by hand delivery if so delivered, or on the date of receipt, if telecopied.
The notices shall be addressed as follows:
If to Xxxxxxxx:
Xxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
with a copy to:
Salamon, Gruber, Xxxxxx & Blaymore, P.C.
00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx, P.C.
If to Morton's:
Xxxxxx'x Restaurant Group, Inc.
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
or to such other address as a party hereto may notify the other pursuant to this
Section 11.
12. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
13. Severability. The invalidity or unenforceability of any
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provisions hereof shall in no way affect the validity or enforceability of any
other provision.
14. Modification. This Agreement cannot be changed, modified or discharged
orally, but only if consented to in writing by both parties.
15. Assignment. This Agreement is a personal contract and, except as
specifically set forth herein, the rights and interests of Xxxxxxxx herein may
not be sold, transferred, assigned, pledged or hypothecated. In the event of any
attempted assignment or transfer of rights hereunder contrary to the provisions
hereof, Morton's shall have no further liability for payments hereunder.
16. Benefit. Except as otherwise herein expressly provided, this Agreement
shall inure to the benefit of and be binding upon Morton's, its successors and
assigns, including but not limited to any corporation which may acquire all or
substantially all of Morton's assets and business or with or into which Morton's
may be consolidated or merged, and Xxxxxxxx, her heirs, executors,
administrators and legal representatives, provided that the obligation of
Xxxxxxxx hereunder may not be delegated.
17. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
18. Indemnity. Morton's shall indemnify Xxxxxxxx and hold her harmless for
any acts or decisions made by her in good faith while performing services for
Morton's as an officer of Morton's and shall include her under any insurance
policy now in force or hereinafter obtained during the term of this Agreement,
covering the other officers and directors of Morton's against lawsuits;
provided, however, Morton's shall be under no obligation to obtain any such
coverage. To the extent permitted under the Delaware General Corporation Law,
Morton's will pay all reasonable expenses, including attorneys' fees, actually
and necessarily incurred by Xxxxxxxx in connection with the defense of such act,
suit or proceeding and in connection with any appeal thereon including the cost
of court settlements.
19. Withholding of Taxes. Morton's may withhold from any amounts or
benefits payable under this Agreement all federal, state, city and other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
20. Contract Headings. All headings of the Articles of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
of this Agreement, and shall in no way
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affect the interpretation of any of the provisions of this Agreement.
21. Entire Agreement. The foregoing contains the entire agreement of the
parties.
IN WITNESS WHEREOF, the parties have signed this Agreement the day and
year first above written.
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Attest: XXXXXX'X RESTAURANT GROUP, INC.
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Chief Financial Officer
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