Exhibit 10.38
EMPLOYMENT AGREEMENT
BETWEEN ADVANTICA RESTAURANT GROUP, INC. AND XXXXX X. XXXXXXX
AS AMENDED AND RESTATED AS OF JANUARY 7, 1998
This Employment Agreement ("Agreement") is amended and restated as of
January 7, 1998 (the "Effective Date") between Advantica Restaurant Group, Inc.,
a Delaware corporation (the "Company") and Xxxxx X. Xxxxxxx (the "Executive")
residing at 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Flagstar Corporation, a Delaware corporation ("Flagstar") and
the Executive originally entered into this Agreement January 10, 1995 providing
for the Executive's employment as President and Chief Executive Officer of
Flagstar, as well as for the Executive's service as a Director of Flagstar on
the terms, and subject to the conditions set forth therein;
WHEREAS, Flagstar and the Executive have amended the Agreement as of
February 27, 1995 and December 31, 1996;
WHEREAS, the Company (formerly known as Flagstar Companies, Inc.
("FCI")) is the successor to Flagstar as a result of the merger of Flagstar into
FCI pursuant to the reorganization of FCI and Flagstar under Title 11 of Chapter
11 of the U.S. Code (the "Bankruptcy Code") which was effective as of January 7,
1998 (the "Effective Time"); and
WHEREAS, the Company and the Executive desire to further amend this
Agreement and restate it to incorporate all prior amendments;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
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1. EMPLOYMENT
The Executive's employment under the terms of this Agreement shall
commence on the Effective Date and shall continue until terminated pursuant to
section 5. (Such period of employment under this Agreement is hereinafter
referred to as the "Employment Term.") The Executive shall provide services to
the Company hereunder as President and Chief Executive Officer of the Company.
During the Employment Term, the Executive, if elected or appointed thereto,
shall also serve as a Director of the Company and as Chairman of the Board of
Directors of the Company (the "Board"). During the Employment Term and for so
long as the Executive is an active employee of the Company in good standing, the
Board shall nominate the Executive for election as a Director of the Company
whenever his term as a Director of the Company expires. The Executive will serve
the Company subject to the general supervision, advice and direction of the
members of the Board other than the Executive (the "Disinterested Directors")
and upon the terms and conditions set forth in this Agreement.
2. DUTIES
(a) During the Employment Term, and while serving as President and
Chief Executive Officer of the Company the Executive shall have such authority
and duties as are customary in such positions, and shall perform such other
services and duties as the Disinterested Directors may from time to time
designate consistent with such positions. During the Employment Term, the
Executive agrees to live in the environs of the Company's headquarters.
(b) The Executive shall report solely to the Board. All senior officers
of the Company shall report, directly or indirectly through other senior
officers, to the Executive, and the Executive shall be responsible for reviewing
the performance of the other senior officers of the
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Company, and shall from time to time present to the Board his recommendations
for any adjustments to the salaries of and bonus payments to such officers. The
Executive shall be responsible for, and, subject to discussion with and
ratification by the Board, have the authority to enter into, employment
contracts on behalf of the Company with other executives of the Company.
(c) The Executive shall devote his full business time and best efforts
to the business affairs of the Company; however, the Executive may devote
reasonable time and attention to:
(i) serving as a director or member of a committee of
any not-for-profit organization or engaging in other charitable or
community activities;
(ii) serving as a director or as a board committee
member of Kmart Corporation and Oxford Health Plans, Inc. (corporations
that the Executive presently serves) or such other corporations and
organizations that the Board approves; and
(iii) serving as an employee, officer, trustee, agent
or representative of another business or service, but only with the
advance approval of the Board.
3. COMPENSATION AND BENEFITS
(a) Base Compensation. For the calendar year ending December 31, 1998,
the Company shall pay the Executive a base salary (the "Base Salary"), as
compensation for his employment under this Agreement, in the amount of
$1,100,000. For each calendar year thereafter within the Employment Term, the
Base Salary shall be as determined by the Board but shall not be less than
$1,100,000, unless the Company implements a broad scale salary reduction
initiative. During the Employment Term such Base Salary shall be paid in equal
installments and at least once in each calendar month.
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(b) Annual Bonus. For each calendar year ending during the Employment
Term, the Executive's bonus compensation ("Annual Bonus") shall be at an annual
rate equal to a percentage between 0% and 200% of his Base Salary in effect on
December 31 of such calendar year, with a target of 75% of Base Salary (the
"Targeted Bonus") if the Company and the Executive achieve budgeted financial
and other performance targets which shall be established by the Compensation and
Incentives Committee of the Board (the "Compensation Committee") and
communicated to the Executive. The Executive's Annual Bonus earned with respect
to each year shall be paid at the same time as annual incentive bonuses with
respect to that year are paid to other senior executives of the Company
generally.
(c) Stock Options. On January 28, 1998, (the "Grant Date"), the Company
shall grant to the Executive an option (the "Option") to purchase 500,000 shares
of common stock of the Company, $.01 par value per share (the "Stock"). The
Option shall be granted subject to the following terms: (i) the exercise price
with respect to shares under the Option shall be $10.00 per share, the fair
market value of the Stock which for purposes of this Agreement was calculated by
taking the closing price of the Stock on the day immediately preceding the Grant
Date; (ii) the Option shall be exercisable as follows: 30% of the Option shall
be immediately exercisable upon shareholder approval of the underlying Company
stock option plan, an additional 20% shall be exercisable on each of the first
and second anniversaries of the Grant Date, and an additional 15% shall be
exercisable on each of the third and fourth anniversaries of the Grant Date, and
(iii) the Option shall be exercisable for a period of ten years. The Executive
shall immediately become 100% vested in, and eligible to exercise, the Option,
and others that may be granted to him in the future, in the event of (a) his
termination without Cause (as defined in section 5(c)(ii))
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under Section 5(a)(iii), (b) a dissolution or liquidation of the Company, (c) a
sale of all or substantially all of the Company's assets, (d) a merger or
consolidation involving the Company in which the Company is not the surviving
corporation, (e) a merger or consolidation involving the Company in which the
Company is the surviving corporation but the holders of shares of common stock
receive securities of another corporation and/or other property, including cash,
or (f) a tender offer for at least a majority of the outstanding stock of the
Company. If immediate vesting occurs because of a termination without Cause, the
Option shall be exercisable for 60 days following the effective date of such
termination; in all other events the option will remain exercisable under the
terms of the grant.
(d) Stock Grant. (i) Grant of Stock. As soon as is administratively
feasible following the Grant Date, the Company shall issue to the Executive a
number of whole shares of Stock with an aggregate value (based upon a fair
market value of $10.00 per share of the Stock on the Grant Date as described in
Section 3(c)(i)) most nearly equal to $2,000,000 (the "Stock Value"). The
difference, if any, between the Stock Value and $2,000,000, positive or negative
(the "Adjustment Amount"), shall be an adjustment to the Balance Payment
described in section 3(d)(ii), below. The Stock shall be fully vested and
non-forfeitable on the Grant Date.
(ii) Tax Payment. On the Grant Date, the Company shall award
Executive with a payment equal to $1,750,000 which payment is intended to assist
Executive in the payment of federal, state and local income taxes associated
with the receipt of the Stock. A portion of the payment shall be treated as an
amount withheld from wages and remitted to the proper taxing authorities as
follows: $1,050,000 shall be deposited with respect to federal income taxes,
$54,375 shall be deposited with respect to federal medicare taxes, and $262,500
shall be
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deposited with respect to South Carolina income taxes. The balance of the tax
payment (the "Balance Payment") of $383,125 (as adjusted if necessary by the
Adjustment Amount) shall be paid to Executive within five days after the Grant
Date.
(e) Vacation. During each calendar year of the Employment Term, the
Executive shall be entitled to no fewer than four weeks of paid vacation,
unless, based on his length of service with the Company and his position with
the Company, the Executive is entitled to a greater number of weeks paid
vacation under the Company's generally applicable vacation policy.
(f) Benefits. During the Employment Term, the Executive shall be
entitled to participate in all pension, profit sharing and other retirement
plans, all incentive compensation plans and all group health, hospitalization
and disability insurance plans and other employee welfare benefit plans in which
other senior executives of the Company may participate on terms and conditions
no less favorable than those which apply to such other senior executives of the
Company.
(g) Insurance Policy. Notwithstanding the provisions of section 3(f),
during the Employment Term the Company shall maintain in effect term life
insurance coverage for the Executive with death benefits of at least $3,250,000
in the aggregate, subject to the Executive's insurability and with the
beneficiary or beneficiaries thereof designated by the Executive.
Notwithstanding section 8 of this Agreement, such life insurance policy or
policies may be assigned to a trust for the benefit of any beneficiary
designated by the Executive.
4. REIMBURSEMENT OF EXPENSES
(a) Expenses Incurred in Performance of Employment. In addition to the
compensation provided for under section 3 hereof, upon submission of proper
vouchers, the Company will pay or reimburse the Executive for all normal and
reasonable expenses incurred by the Executive
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during the Employment Term in connection with the Executive's responsibilities
to the Company, including the Executive's first class travel expenses and, for a
reasonable number of trips chosen by the Executive each calendar year, first
class travel expenses (or travel on board the Company's aircraft) for the
Executive's spouse to accompany him on such business travel. Any income required
to be imputed to Executive by reason of his spouse's travel with him under this
provision shall be grossed up for taxes.
(b) Legal Fees and Expenses in Relation Hereto. The Company agrees to
reimburse the Executive for the reasonable legal fees and expenses incurred in
relation to this Agreement and its subject matter.
(c) Personal Tax and Financial Planning Expenses. The Company agrees to
reimburse the Executive for reasonable legal, accounting and financial advisor
fees and expenses incurred by the Executive for personal tax, financial and
estate planning services in an amount not to exceed $15,000 for each calendar
year, such amount to be grossed up for taxes if the reimbursement is included in
Executive's income.
5. TERMINATION
(a) Events of Termination. The Employment Term shall terminate upon the
first to occur of the following events:
(i) the death of the Executive;
(ii) the close of business on the 180th day following
the date on which the Company gives the Executive written notice of the
termination of his employment as a result of his "Permanent Disability"
(as defined in subsection (c));
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(iii) the close of business on the date on which the
Company gives the Executive written notice of the Company's termination
of his employment as a "Termination without Cause" (as defined in
subsection (c)) or the close of business on the effective date of a
termination of the Executive's employment with the Company pursuant to
subsection (c)(iii);
(iv) the close of business on the date on which the
Company gives the Executive written notice of the Company's termination
of his employment for "Cause" (as defined in subsection (c)); and
(v) the close of business on the effective date of a
"Voluntary Termination" (as defined in subsection (c)) by the Executive
of his employment with the Company.
(b) Termination Benefits. Upon the termination of the Executive's
employment with the Company for any reason set forth in subsection (a), the
Company shall provide the Executive (or, in the case of his death, his estate or
other legal representative) benefits due him under the Company's benefits plans
and policies for his services rendered to the Company prior to the date of such
termination (according to the terms of such plans and policies), and the Company
shall pay the Executive not later than 90 days after such termination, in a lump
sum, all Base Salary earned through the date of such termination. The Executive
shall be entitled to the payments and benefits described below only as each is
applicable to such termination of employment.
(i) In the event of a termination as a result of the
Executive's death, and in addition to any other death benefits payable
under the Company's benefit plans or policies, (A) for so long as the
Executive's surviving spouse is receiving any Base Salary payment under
clause (B) below, the Executive's eligible family dependents
(collectively,
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"Family") shall be entitled to receive and participate in the
disability, health, medical and other welfare benefit plans which the
Executive and/or his Family would otherwise have been entitled to
hereunder if the Executive had not terminated employment (the "Welfare
Benefits") in addition to any continuation coverage which the
Executive's Family is entitled to elect under Section 4980B of the
Code; and (B) for a period of one year following the date of the
Executive's death, the Executive's surviving spouse shall be paid (x)
the Base Salary in effect at the date of the Executive's death, payable
in monthly installments, and (y) the Annual Bonus that would have been
paid under section 3(b) to the Executive during such period, payable as
and when annual incentive bonuses with respect to such period are paid
by the Company to other senior executives of the Company generally.
(ii) In the event of a termination as a result of the
Executive's Permanent Disability, for a period of two years after the
date of such termination of the Executive's employment, (A) the
Executive and/or his Family shall be entitled to receive and
participate in the Welfare Benefits in addition to any continuation
coverage which the Executive and/or his Family is entitled to elect
under Section 4980B of the Code; and (B) the Executive shall be paid
(x) one-half of the Base Salary in effect at such date of termination,
payable in monthly installments, and (y) one-half of the Annual Bonus
that would be payable under section 3(b) for such period, payable as
and when annual incentive bonuses with respect to such period are paid
by the Company to other senior executives of the Company generally.
(iii) In the event of a "Termination without Cause"
under subsection (a)(iii), (A) the Executive and/or his Family shall be
entitled until the earlier of (x) the
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second anniversary of the date of such termination of employment or (y)
the commencement of coverage of the Executive and/or his Family by
another group medical benefits plan providing substantially comparable
benefits to the Welfare Benefits and which does not contain any
pre-existing condition exclusions or limitations, to receive and
participate in the Welfare Benefits in addition to any continuation
coverage which the Executive and/or his Family is entitled to elect
under Section 4980B of the Code; (B) not later than 90 days after such
termination, the Company shall pay to the Executive in a lump sum an
amount equal to two hundred percent (200%) of the Executive's Base
Salary plus two hundred percent (200%) of his Target Bonus; and (C) the
Option shall be one hundred percent (100%) vested and exercisable as of
the date of such termination for a period of sixty (60) days following
the effective date of such termination.
(iv) In the event of a termination for Cause under
subsection (a)(iv) and in the event of a Voluntary Termination under
subsection (a)(v), the Executive shall not be entitled to any benefits
or payments from the Company except as provided in the first sentence
of subsection (b) above.
(c) For purposes of this Agreement:
(i) "Permanent Disability" shall mean the Executive's
inability to perform the material duties contemplated by this Agreement
by reason of a physical or mental disability or infirmity which has
continued for more than 180 consecutive days. The Executive agrees to
submit such medical evidence regarding such disability or infirmity as
is reasonably requested by the Company, including, but not limited to,
an examination by a physician selected by the Company in its sole
discretion.
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(ii) "Cause" shall mean (A) the Executive's habitual
neglect of his material duties, (B) an act or acts by the Executive, or
any omission by him, constituting a felony, and the Executive has
entered a guilty plea or confession to, or has been convicted of, such
felony, (C) the Executive's failure to follow any lawful directive of
the Board consistent with the Executive's position and duties, (D) an
act or acts of fraud or dishonesty by the Executive which results or is
intended to result in financial or economic harm to the Company, or (E)
breach of a material provision of this Agreement by the Executive;
provided, that the Company shall provide the Executive (x) written
notice specifying the nature of the alleged Cause, and, with respect to
clauses (A), (C) and (E), (y) a reasonable opportunity to appear before
the Board to discuss the matter, and (z) a reasonable opportunity to
cure any such alleged Cause.
(iii) (A) "Voluntary Termination" shall mean any
voluntary termination by the Executive of his employment with the
Company provided that the Executive shall give the Company at least 120
days' prior written notice of the effective date of such termination.
(B) For purposes of this Agreement, the Executive shall not be deemed
to have incurred a "Voluntary Termination" if upon 10 days' prior
written notice from the Executive, the Executive notifies the Company
that his termination of employment with the Company is a result of (x)
a breach by the Company of a material provision of this Agreement or
(y) a change by the Company of the Executive's title, duties or
responsibilities as Chairman of the Board and Chief Executive Officer
of the Company without his consent, and such breach or change is not
corrected by the Company within 30 days or such longer reasonable
amount of time required to correct such breach or change, not to
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exceed 90 days, after the Executive notifies the Board in writing of
the action or omission which the Executive believes constitutes such a
breach or change. In such event, the Executive shall be deemed to have
been terminated without Cause, and the benefits described under section
(b)(iii) shall apply.
(iv) "Termination without Cause" shall mean a
termination by the Company of the Executive's employment without Cause
(as defined above), and shall be deemed to include any termination
under the circumstances described in subsection (c)(iii)(B).
(d) Notwithstanding any other provision of this Agreement, if any
payment or benefit from the Company would be subject to the tax (the "Excise
Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), the Executive shall designate which payments or benefits or
portion thereof shall be reduced to the extent necessary so that no portion
thereof shall be subject to Section 4999 of the Code; but only if, by reason of
such reduction, the benefit to the Executive of all amounts payable under
section 5 plus all other payments and benefits that the Executive receives or is
then entitled to receive from the Company that would constitute a "parachute
payment" within the meaning of Section 280G of the Code, net of income and
excise taxes with respect thereto (the "Net After Tax Benefit") is greater than
the Net After Tax Benefit if the reduction were not made.
(e) In the event of any termination of the Executive's employment by
the Company or by the Executive under circumstances described in subsection
(c)(iii)(B), the Executive shall not be required to seek other employment to
mitigate damages, and any income earned by the
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Executive from other employment or self-employment shall not be offset against
any obligations of the Company to the Executive under this Agreement.
6. PROTECTED INFORMATION; PROHIBITED SOLICITATION AND COMPETITION
(a) The Executive hereby recognizes and acknowledges that during the
course of his employment by the Company, the Company will furnish, disclose or
make available to the Executive confidential or proprietary information related
to the Company's business, including, without limitation, customer lists, ideas,
processes, inventions and devices, that such confidential or proprietary
information has been developed and will be developed through the Company's
expenditure of substantial time and money, and that all such confidential
information could be used by the Executive and others to compete with the
Company. The Executive hereby agrees that all such confidential or proprietary
information shall constitute trade secrets, and further agrees to use such
confidential or proprietary information only for the purpose of carrying out his
duties with the Company and not otherwise to disclose such information unless
otherwise required to do so by subpoena or other legal process. No information
otherwise in the public domain (i.e., information that has been disclosed to the
general public, the marketplace or to governmental regulatory agencies) shall be
considered confidential.
(b) The Executive hereby agrees, in consideration of his employment
hereunder and in view of the confidential position to be held by the Executive
hereunder, that during the Employment Term and for the period ending on the date
which is two years after the later of (1) the termination of the Employment Term
and (2) the date on which the Company is no longer required to provide the
payments and benefits described in section 5(b) (other than any
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continuation coverage which the Executive and/or his Family is entitled to elect
under Section 4980B of the Code), the Executive shall not, without the written
consent of the Company, knowingly solicit, entice or persuade any other
employees of the Company or any affiliate of the Company to leave the services
of the Company or such affiliate for any reason.
(c) The Executive further agrees that, he shall not (except as to the
activities described in section 2(c)) for so long as he is receiving any
benefits under section 5(b) enter into any relationship whatsoever, either
directly or indirectly, alone or in partnership, or as an officer, director,
employee or stockholder (beneficially owning stock or options to acquire stock
totaling more than five percent of the outstanding shares) of any corporation
(other than the Company), or otherwise acquire or agree to acquire a significant
present or future equity or other proprietorship interest, whether as a
stockholder, partner, proprietor or otherwise, with any enterprise, business or
division thereof (other than the Company), which is engaged in the restaurant or
food services business in those states within the United States in which the
Company or any of its subsidiaries is at the time of such termination of
employment conducting its business and which has annual sales of at least
$50,000,000.
(d) The restrictions in this section 6 shall survive the termination of
this Agreement and shall be in addition to any restrictions imposed upon the
Executive by statute or at common law.
(e) The parties hereby acknowledge that the restrictions in this
section 6 have been specifically negotiated and agreed to by the parties hereto
and are limited to only those restrictions necessary to protect the Company from
unfair competition. The parties hereby agree that if the scope or enforceability
of any provision, paragraph or subparagraph of this section 6 is in any
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way disputed at any time, and should a court find that such restrictions are
overly broad, the court may modify and enforce the covenant to the extent that
it believes to be reasonable under the circumstances. Each provision, paragraph
and subparagraph of this section 6 is separable from every other provision,
paragraph, and subparagraph and constitutes a separate and distinct covenant.
7. INJUNCTIVE RELIEF
The Executive hereby expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in section 6 of
this Agreement may result in significant and continuing injury to the Company,
the monetary value of which would be impossible to establish. Therefore, the
Executive agrees that the Company shall be entitled to apply for injunctive
relief in a court of appropriate jurisdiction. The provisions of this section
shall survive the Employment Term.
8. PARTIES BENEFITED; ASSIGNMENTS
This Agreement shall be binding upon the Executive, his heirs and his
personal representative or representatives, and upon the Company and its
successors and assigns. Neither this Agreement nor any rights or obligations
hereunder may be assigned by the Executive, other than by will or by the laws of
descent and distribution.
9. NOTICES
Any notice required or permitted by this Agreement shall be in writing,
sent by registered or certified mail, return receipt requested, addressed to the
Board and the Company at its then principal office, or to the Executive at the
address set forth in the preamble, as the case may be, or to such other address
or addresses as any party hereto may from time to time specify in writing
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for the purpose in a notice given to the other parties in compliance with this
section. Notices shall be deemed given when received.
10. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of South Carolina, without regard to
conflict of law principles.
11. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Company shall indemnify the Executive to the fullest extent
permitted by the laws of the State of Delaware, as in effect at the time of the
subject act or omission, and shall advance to the Executive reasonable
attorney's fees and expenses as such fees and expenses are incurred (subject to
an undertaking from the Executive to repay such advances if it shall be finally
determined that by a judicial decision which is not subject to appeal that the
Executive was not entitled to the reimbursement of such fees and expenses) and
he will be entitled to the protection of any insurance policies the Company may
elect to maintain generally for the benefit of its directors and officers
against all costs, charges and expenses incurred or sustained by him in
connection with any action, suit or proceeding to which he may be made a party
by reason of his being or having been a director, officer or employee of the
Company or any of its subsidiaries or his serving or having served any other
enterprise as a director, officer or employee at the request of the Company
(other than any dispute, claim or controversy arising under or relating to this
Agreement).
12. DISPUTES
Any dispute or controversy arising under, out of, in connection with or
in relation to this Agreement shall, at the election and upon written demand of
either the Executive or the
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Company, be finally determined and settled by arbitration in the city of the
Company's headquarters in accordance with the rules and procedures of the
American Arbitration Association, and judgment upon the award may be entered in
any court having jurisdiction thereof.
13. MISCELLANEOUS
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof. This Agreement supersedes any prior written or oral
agreements or understandings between the parties relating to the subject matter
hereof. No modification or amendment of this Agreement shall be valid unless in
writing and signed by or on behalf of the parties hereto. A waiver of the breach
of any term or condition of this Agreement shall not be deemed to constitute a
waiver of any subsequent breach of the same or any other term or condition. This
Agreement is intended to be performed in accordance with, and only to the extent
permitted by, all applicable laws, ordinances, rules and regulations. If any
provision of this Agreement, or the application thereof to any person or
circumstance, shall, for any reason and to any extent, be held invalid or
unenforceable, such invalidity and unenforceability shall not affect the
remaining provisions hereof and the application of such provisions to other
persons or circumstances, all of which shall be enforced to the greatest extent
permitted by law. The compensation provided to the Executive pursuant to this
Agreement shall be subject to any withholdings and deductions required by any
applicable tax laws. Any amounts payable under this Agreement to the Executive
after the death of the Executive shall be paid to the Executive's estate or
legal representative. The headings in this Agreement are inserted for
convenience of reference only and shall not be a part of or control or affect
the meaning of any provision hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
ADVANTICA RESTAURANT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, Compensation and
Incentives Committee of the Board
of Directors
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
Advantica Restaurant Group, Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
