EXHIBIT 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is
entered into effective September 16, 2008 (the "Effective Date") by and between
Buffalo Wild Wings, Inc., a Minnesota corporation (the "Company"), and Xxxxxxxx
X. Xxxxxxx, a resident of Minnesota ("Executive").
BACKGROUND
A. Executive is currently employed by the Company as its Senior Vice
President, Marketing and Brand Development. The Company desires to continue to
employ Executive under the terms and conditions set forth in this Agreement.
B. The Company and Executive are parties to an Employment Agreement
dated December 1, 1999 (the "Prior Agreement"), which the parties desire to
amend and restate in its entirety as set forth in this Agreement. The Company
and Executive are also parties to Restricted Stock Unit Agreements dated
December 26, 2005 and January 1, 2007 (the "RSU Agreements").
C. In October 2004, the American Jobs Creation Act of 2004 (the "Act")
was enacted, Section 885 of which Act added new provisions to the Internal
Revenue Code pertaining to deferred compensation. The Treasury Department has
issued final regulations and guidances regarding the deferred compensation
provisions of the Act, which permit service providers and service recipients a
transition period to modify existing deferred compensation arrangements to bring
them into compliance with the Act.
D. The parties agree that it is in their mutual best interests to
modify, amend and clarify the terms and conditions of the Prior Agreement, as
set forth in this Agreement, with the full intention of complying with the Act
so as to avoid the additional taxes and penalties imposed under the Act.
E. Executive is a key member of the management of the Company and is
expected to devote substantial skill and effort to the affairs of the Company,
and the Company desires to recognize the significant personal contribution that
Executive makes and is expected to continue to make to further the best
interests of the Company and its shareholders.
F. It is desirable and in the best interests of the Company and its
shareholders to continue to obtain the benefits of Executive's services and
attention to the affairs of the Company. It is desirable and in the best
interests of the Company and its shareholders to provide inducement for
Executive (1) to remain in the service of the Company in the event of any
proposed or anticipated change in control of the Company and (2) to remain in
the service of the Company in order to facilitate an orderly transition in the
event of a change in control of the Company.
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G. It is desirable and in the best interests of the Company and its
shareholders that Executive be in a position to make judgments and advise the
Company with respect to proposed changes in control of the Company without
regard to the possibility that Executive's employment may be terminated without
compensation in the event of certain changes in control of the Company.
H. In Executive's position Executive will have access to confidential,
proprietary and trade secret information of the Company. It is desirable and in
the best interests of the Company and its shareholders to protect confidential,
proprietary and trade secret information of the Company, to prevent unfair
competition by former executives of the Company following separation of their
employment with the Company and to secure cooperation from former executives
with respect to matters related to their employment with the Company.
AGREEMENT
In consideration of the foregoing premises and the respective
agreements of the Company and Executive set forth below, the Company and
Executive, intending to be legally bound, agree as follows:
1. TERM. The term of Executive's employment under this
Agreement shall commence on the Effective Date and shall continue in effect
until the last day of the Company's fiscal year 2009, unless earlier terminated
in accordance with Section 9 of this Agreement. Thereafter, unless earlier
terminated in accordance with Section 9 hereof, the term of Executive's
employment with the Company shall be automatically extended for successive
one-year periods, each ending on the last day of the Company's fiscal year,
unless either party gives written notice to the other party at least four (4)
months prior to the expiration of such term that such party elects not to extend
the term of this Agreement. The term of Executive's employment, beginning on the
Effective Date of this Agreement, together with any automatic extensions
thereof, shall collectively be the "Term."
2. POSITION AND DUTIES. During Executive's employment under
this Agreement, Executive will have the following position, duties and
responsibilities:
(a) Position with the Company. Executive will serve as
Senior Vice President, Marketing and Brand Development of the Company, or in
such other executive position of a similar nature, and will perform such duties
and responsibilities as the Chief Executive Officer and President of the Company
(the "CEO") may assign Executive from time to time.
(b) Performance of Duties and Responsibilities. Executive
will serve the Company faithfully and to the best of Executive's ability and
will devote Executive's full working time, attention, and efforts to the
business of the Company. Executive will report to the CEO or CEO's designee.
Executive will follow and comply with applicable policies and procedures adopted
by the Company from time to time, including without limitation policies relating
to business ethics, conflict of interest, non-discrimination, confidentiality
and protection of trade secrets, and xxxxxxx xxxxxxx. Executive will not engage
in other employment or other material business activity, except as approved in
writing by the CEO. Executive hereby represents and confirms that Executive is
under no contractual or legal commitments that would prevent Executive from
fulfilling Executive's duties and responsibilities as set forth in this
Agreement.
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3. COMPENSATION. During Executive's employment under this
Agreement, Executive will be provided with the following compensation and
benefits:
(a) Base Salary. The Company will pay to Executive for
services provided hereunder a base salary paid in accordance with the Company's
normal payroll policies and procedures. The Board of Directors of the Company
(or any authorized committees of the Board, together hereafter the "Board") will
review Executive's performance on an annual basis and determine any adjustments
to Executive's base salary in its sole discretion; provided, however, that any
reduction shall be permitted only if the Company then reduces the base
compensation of all its executive officers generally and shall not exceed the
average percentage reduction for all such executive officers.
(b) Incentive Compensation. Executive will be eligible to
participate in such programs under the Buffalo Wild Wings, Inc. Cash Incentive
Plan as determined by the Board and in accordance with the terms, as may be
amended and in effect from time to time (the "CIP").
(c) Equity. Executive will be eligible to participate in
such programs under the Buffalo Wild Wings, Inc. 2003 Equity Incentive Plan as
determined by the Board and in accordance with the terms of such plan as may be
in effect from time to time.
(d) Employee Benefits. Executive will be entitled to
participate in all employee benefit plans and programs generally available to
executive employees of the Company, to the extent that Executive meets the
eligibility requirements for each individual plan or program. Executive's
participation in any plan or program will be subject to the provisions, rules,
and regulations of, or applicable to, the plan or program. The Company provides
no assurance as to the adoption or continuation of any particular employee
benefit plan or program.
(e) Expenses. The Company will reimburse Executive for all
reasonable and necessary out-of-pocket business, travel, and entertainment
expenses incurred by Executive in the performance of Executive's duties and
responsibilities to the Company during the Term. Such reimbursement shall be
subject to the Company's normal policies and procedures for expense
verification, documentation, and reimbursement; provided, however, that
Executive shall submit verification of expenses within 30 days after the date
the expense was incurred, and the Company shall reimburse Executive for such
expenses eligible for reimbursement within 30 days thereafter.
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4. AMENDMENT OF RSU AGREEMENTS. Simultaneous with the
execution of this Agreement, Executive and the Company will execute amendments
to the RSU Agreements, in the form attached to this Agreement as Exhibit A.
5. CONFIDENTIAL INFORMATION. Except as authorized in writing
by the Board or as necessary in carrying out Executive's responsibilities for
the Company, Executive will not at any time divulge, furnish, or make accessible
to anyone or use in any way, any confidential, proprietary, or secret knowledge
or information of the Company that Executive has acquired or will acquire about
the Company, whether developed by himself or by others, concerning (i) any trade
secrets, (ii) any confidential, proprietary, or secret recipes, designs,
inventions, discoveries, programs, processes, formulae, plans, devices, or
material (whether or not patented or patentable) directly or indirectly useful
in any aspect of the business of the Company, (iii) any customer or supplier
lists, (iv) any confidential, proprietary, or secret development or research
work, (v) any strategic or other business, marketing, or sales plans, systems or
techniques, (vi) any financial data or plans, or (vii) any other confidential or
proprietary information or secret aspects of the business of the Company.
Executive acknowledges that the above-described knowledge and information
constitute a unique and valuable asset of the Company and represent a
substantial investment of time and expense by the Company, and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of the Company would be wrongful and would cause irreparable harm to the
Company. Executive will refrain from intentionally committing any acts that
would materially reduce, and shall take reasonable steps to protect, the value
of such knowledge and information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that (i) at the
time of Executive's use or disclosure is generally publicly known, other than as
a direct or indirect result of the breach by Executive of this Agreement, (ii)
is independently made available to Executive in good faith by a third party who
has not violated a confidential relationship with the Company, or (iii) is
required to be disclosed by law or legal process. Executive understands and
agrees that Executive's obligations under this Agreement to maintain the
confidentiality of the Company's confidential information are in addition to any
obligations of Executive under applicable statutory or common law.
6. VENTURES. If, during Executive's employment with the
Company, Executive participates in the planning or implementing of any project,
program, or venture involving the Company, all rights in such project, program,
or venture belong to the Company. Except as approved in writing by the Board,
Executive will not be entitled to any interest in any such project, program, or
venture or to any commission, finder's fee, or other compensation in connection
therewith. Executive will have no interest, direct or indirect, in any customer
or supplier that conducts business with the Company. Ownership by Executive, as
a passive investment, of less than one percent of the outstanding shares of
capital stock of any corporation listed on a national securities exchange or
publicly traded in the over-the-counter market shall not constitute a breach of
this Section 6.
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7. INTELLECTUAL PROPERTY.
(a) Disclosure and Assignment. As of the Effective Date,
Executive hereby transfers and assigns to the Company (or its designee) all
right, title, and interest of Executive in and to every idea, concept,
invention, and improvement (whether patented, patentable or not) conceived or
reduced to practice by Executive whether solely or in collaboration with others
while Executive is employed by the Company, and all copyrighted or copyrightable
matter created by Executive whether solely or in collaboration with others while
Executive is employed by the Company, in each case, that relates to the
Company's business (collectively, "Creations"). Executive shall communicate
promptly and disclose to the Company, in such form as the Company may request,
all information, details, and data pertaining to each Creation. Every
copyrightable Creation, regardless of whether copyright protection is sought or
preserved by the Company, shall be a "work made for hire" as defined in 17
U.S.C. ss. 101, and the Company shall own all rights in and to such matter
throughout the world, without the payment of any royalty or other consideration
to Executive or anyone claiming through Executive.
(b) Trademarks. All right, title, and interest in and to
any and all trademarks, trade names, service marks, and logos adopted, used, or
considered for use by the Company during Executive's employment (whether or not
developed by Executive) to identify the Company's business or other goods or
services (collectively, the "Marks"), together with the goodwill appurtenant
thereto, and all other materials, ideas, or other property conceived, created,
developed, adopted, or improved by Executive solely or jointly during
Executive's employment by the Company and relating to its business shall be
owned exclusively by the Company. Executive shall not have, and will not claim
to have, any right, title, or interest of any kind in or to the Marks or such
other property.
(c) Documentation. Executive shall execute and deliver to
the Company such formal transfers and assignments and such other documents as
the Company may request to permit the Company (or its designee) to file and
prosecute such registration applications and other documents it deems useful to
protect or enforce its rights hereunder. Any patentable invention relating to
the Company's business and disclosed by Executive prior to the first anniversary
of the effective date of Executive's termination of employment shall be deemed
to be governed by the terms of this Section 7 unless proven by Executive to have
been first conceived and made after such termination date.
(d) Non-Applicability. Executive is hereby notified that
this Section 7 does not apply to any invention for which no equipment, supplies,
facility, confidential information, or other trade secret information of the
Company was used and which was developed entirely on Executive's own time,
unless (1) the invention relates (a) directly to the business of the Company or
(b) to the Company's actual or demonstrably anticipated research or development,
or (2) the invention results from any work performed by Executive for the
Company.
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8. NONCOMPETITION AND NONSOLICITATION COVENANTS.
(a) Agreement Not to Compete. During Executive's employment
with the Company and for a period of twelve (12) consecutive months from and
after the termination of Executive's employment, whether such termination is
with or without Cause, is at the instance of Executive or the Company or occurs
before or after expiration of the Term, Executive will not, directly or
indirectly, in any manner or capacity, including without limitation as a
proprietor, principal, agent, partner, officer, director, investor, stockholder,
employee, member of any association, consultant, or otherwise, engage or
participate in any Competitive Business. "Competitive Business" means any
person, entity or business operation (other than the Company) that operates,
manages or franchises, in the United States (i) a sports-themed restaurant that
operates, manages or franchises two or more restaurants, markets the public
viewing of sports and has alcohol sales of 20% or more, (ii) a restaurant that
operates, manages or franchises two or more restaurants and features chicken
wings that account for 10% or more of food sales, or (iii) any other business
concept being operated by or under consideration by the Company as of the date
of the Executive's employment termination. Ownership by Executive, as a passive
investment, of less than one percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section
8(a).
(b) Agreement Not to Hire. During Executive's employment
with the Company and for a period of twelve (12) consecutive months from and
after the termination of Executive's employment, whether such termination is
with or without Cause, is at the instance of Executive or the Company or occurs
before or after expiration of the Term, Executive will not, directly or
indirectly, in any manner or capacity, including without limitation as a
proprietor, principal, agent, partner, officer, director, investor, stockholder,
employee, member of any association, consultant, or otherwise, hire, engage, or
solicit any person who is then an employee of the Company at a director level or
above, or who was such an employee of the Company at any time during the
six-month period immediately preceding Executive's termination of employment.
(c) Agreement Not to Solicit. During Executive's employment
with the Company and for a period of twelve (12) consecutive months from and
after the termination of Executive's employment, whether such termination is
with or without Cause, is at the instance of Executive or the Company or occurs
before or after expiration of the Term, Executive will not, directly or
indirectly, in any manner or capacity including without limitation as a
proprietor, principal, agent, partner, officer, director, stockholder, employee,
member of any association, consultant, or otherwise, solicit, request, advise,
or induce any current or potential customer, supplier, vendor, franchisee or
other business contact of the Company to cancel, curtail, or otherwise change
its relationship adversely to the Company, or interfere in any manner with the
relationship between the Company and any of its customers, suppliers, vendors,
franchisees or other business contacts.
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(d) Modification. If the duration of, the scope of, or any
business activity covered by, any provision of this Section 8 exceeds that which
is valid and enforceable under applicable law, such provision will be construed
to cover only that duration, scope, or activity that is determined to be valid
and enforceable. Executive hereby acknowledges that this Section 8 will be
construed so that its provisions are valid and enforceable to the maximum
extent, not exceeding its express terms, possible under applicable law.
(e) No Adequate Remedy at Law. Executive hereby
acknowledges that the provisions of this Section 8 are reasonable and necessary
to protect the legitimate interests of the Company and that any violation of
this Section 8 by Executive will cause substantial and irreparable harm to the
Company to such an extent that monetary damages alone would be an inadequate
remedy therefor. Accordingly, in the event of any actual or threatened breach of
any such provisions, the Company will, in addition to any other remedies it may
have, be entitled to injunctive and other equitable relief to enforce such
provisions, and such relief may be granted without the necessity of proving
actual monetary damages.
9. TERMINATION OF EMPLOYMENT.
(a) The Executive's employment with the Company under this
Agreement will terminate upon:
(i) Expiration of the Term following notice of
non-renewal pursuant to Section 1 of this Agreement;
(ii) The Company providing written notice to Executive
of the termination of Executive's employment, effective as of
the date stated in such notice;
(iii) The Company's receipt of Executive's written
resignation from the Company, effective not earlier than 30
days after delivery of such written notice of resignation,
provided that the Board may waive such notice or relieve
Executive of Executive's duties during such notice period;
(iv) Executive's Disability; or
(v) Executive's death.
(b) The date upon which Executive's termination of
employment with the Company is effective is the "Termination Date." For purposes
of Section 10 of this Agreement only, the Termination Date shall mean the date
on which a "separation from service" has occurred for purposes of Section 409A
of the Internal Revenue Code and the regulations and guidance thereunder (the
"Code").
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10. PAYMENTS UPON INVOLUNTARY TERMINATION WITHOUT CAUSE OR
RESIGNATION FOR GOOD REASON. If Executive's employment with the Company is
terminated (i) involuntarily at the initiative of the Company without Cause
(including termination upon expiration of the Term following notice of
non-renewal by the Company pursuant to Section 1) or (ii) on the initiative of
Executive for Good Reason such that Executive's Termination Date occurs within
six months after the first occurrence of a condition giving rise to Good Reason
(as described in Section 14(d)(i) - (iv) below), then, unless such Termination
Date occurs upon or within one year following a Change in Control, in addition
to such base salary and any incentive compensation for the last completed fiscal
year that has been earned but not paid to Executive as of the Termination Date,
the Company shall provide to Executive the severance payments and benefits set
forth in Sections 10(a), (b), (c) and (d) below, subject to the conditions in
Section 12:
(a) Base Salary Continuation. The Company shall pay to
Executive an amount equal to six months of Executive's base salary in effect as
of the Termination Date, but not to exceed a maximum amount under this Section
10(a) of two times the lesser of:
(i) The Code ss. 401(a)(17) compensation limit for the
year in which the Termination Date occurs; or
(ii) Executive's annualized compensation based upon the
annual rate of pay for services to the Company for the
calendar year prior to the calendar year in which the
Termination Date occurs (adjusted for any increase during that
year that was expected to continue indefinitely if Executive
had not separated from service).
Subject to Section 12, such salary continuation shall be paid to Executive in
accordance with the Company's regular payroll schedule, at the regular base
salary payroll rate in effect as of the Termination Date, commencing on the
first regular payroll date of the Company that occurs following the Termination
Date and continuing for six months. The Company and Executive intend the
payments under this Section 10(a) to be a "separation pay plan due to
involuntary separation from service" under Treas. Reg. ss. 1.409A-1(b)(9)(iii).
(b) Supplemental Salary Continuation. The Company shall pay
to Executive an additional amount equal to (i) if Executive has been employed
continuously with the Company as of the Termination Date for less than five
years, six months of Executive's base salary in effect as of the Termination
Date, or (ii) if Executive has been employed continuously with the Company as of
the Termination Date for five years or more, twelve months of Executive's base
salary in effect as of the Termination Date. Subject to Section 12, such
supplemental salary continuation shall be paid to Executive in accordance with
the Company's regular payroll schedule, at the regular base salary payroll rate
in effect as of the Termination Date, commencing on the first regular payroll
date of the Company that occurs following the completion of all payments under
Section 10(a) and continuing for six months (or twelve months as applicable if
Executive has been employed continuously for five years or more). The Company
and Executive intend the payments under this section 10(b) to be deferred
compensation payable in compliance with the requirements of Section 409A of the
Code.
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(c) Incentive Pay. If the Termination Date is any day other
than the last day of the plan year under the CIP, the Company shall pay to
Executive an amount equal to a prorated portion of the award that would have
been payable to Executive under the CIP for such plan year based on actual
performance towards objectives, prorated based on the number of days of the plan
year occurring through the Termination Date divided by 365. Any individual
performance objectives applicable to Executive for the fiscal year shall be
deemed to have been met at a level resulting in payout of 50% of the award
amount allocated to such individual objectives. The payment shall be paid to
Executive at the same time and in the same manner as CIP awards are paid to
other executives of the Company pursuant to the CIP, but not later than 2 1/2
months following the end of the fiscal year in which the Termination Date
occurs, provided that Executive has satisfied the conditions set forth in
Section 12. Any separation pay that may become payable pursuant to this Section
10(c) is intended to be a short-term deferral not subject to the requirements of
Section 409A of the Code.
(d) Medical Benefits. If Executive (and/or Executive's
covered dependents) is eligible for and properly elects to continue group
medical insurance coverage, as in place immediately prior to the Termination
Date, and if Executive continues to pay the employee portion of such medical
coverage, the Company will pay or reimburse the employer portion of such
coverage until the earlier of (i) (A) if Executive has been employed
continuously with the Company as of the Termination Date for less than five
years, twelve months after the Termination Date, or (B) if Executive has been
employed continuously with the Company as of the Termination Date for five years
or more, eighteen months after the Termination Date, or (ii) the date Executive
(and Executive's covered dependents) are no longer eligible for medical
continuation coverage under COBRA.
11. PAYMENT TIMING FOLLOWING CHANGE IN CONTROL. If Executive's
employment with the Company is terminated (i) involuntarily at the initiative of
the Company without Cause (including termination upon expiration of the Term
following notice of non-renewal by the Company pursuant to Section 1) or (ii) on
the initiative of Executive for Good Reason such that Executive's Termination
Date occurs within six months after the first occurrence of a condition giving
rise to Good Reason (as described in Section 14(d)(i) - (iv) below), and if such
Termination Date occurs upon or within one year following a Change in Control,
then, in addition to such base salary and any incentive compensation for the
last completed fiscal year that has been earned but not paid to Executive as of
the Termination Date, the Company shall provide to Executive the severance
payments and benefits set forth in Sections 10(a), (b), (c) and (d) above,
subject to the conditions in Section 12, except that the salary continuation
payments set forth in Sections 10(a) and (b) shall be paid to Executive in a
single lump sum as soon as administratively feasible following the Termination
Date, but in no event more than 2 1/2 months following the Termination Date. Any
such lump sum payment pursuant to this Section 11 is intended to be a short-term
deferral not subject to the requirements of Section 409A of the Code.
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12. CONDITIONS. Notwithstanding anything above to the
contrary, the Company will not be obligated to make any payments to Executive
under Section 10 or Section 11 hereof unless: Executive has signed a release of
claims in favor of the Company and its affiliates and related entities, and
their directors, officers, insurers, employees and agents, in a form prescribed
by the Company (but such release will not require Executive to release any
rights under any qualified employee benefit plan of the Company in which
Executive is a participant or any rights to indemnification as an employee,
officer, or director of the Company); all applicable rescission periods provided
by law for releases of claims shall have expired and Executive shall have signed
and not rescinded the release of claims; and Executive is in material compliance
with the terms of this Agreement as of the dates of such payments.
13. OTHER TERMINATION. If Executive's employment with the
Company is terminated:
(a) by reason of Executive's abandonment of Executive's
employment or resignation for any reason other than Good Reason;
(b) by reason of termination of Executive's employment by
the Company for Cause;
(c) upon death or Disability; or
(d) upon or following expiration of the Term following
notice of non-renewal by Executive pursuant to Section 1,
then the Company will pay to Executive, or Executive's beneficiary or
Executive's estate, as the case may be, such base salary that has been earned
but not paid to Executive as of the Termination Date, payable pursuant to the
Company's normal payroll practices and procedures, and such incentive
compensation that has been earned as of the Termination Date, payable as
provided in the applicable plans or programs.
14. DEFINITIONS.
(a) Cause. "Cause" hereunder means:
(i) Executive's commission of any act constituting a
felony, or Executive's conviction or guilty or no contest plea
to any criminal misdemeanor involving fraud, misrepresentation
or theft;
(ii) gross misconduct or any act of fraud, disloyalty
or dishonesty by Executive related to or connected with
Executive's employment by the Company or otherwise likely to
cause material harm to the Company or its reputation;
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(iii) a material violation by Executive of the
Company's policies or codes of conduct; or
(iv) the willful or material breach of this Agreement
by Executive.
(b) Change in Control. "Change in Control" hereunder shall
mean any change in effective control or ownership of the Company that (i)
constitutes a Change in Control as such term is defined under the Buffalo Wild
Wings, Inc. 2003 Equity Incentive Plan, as in effect from time to time, and (ii)
constitutes a change in ownership or effective control, or a change in the
ownership of a substantial portion of the assets, of the Company under Code
Section 409A.
(c) Disability. "Disability" hereunder means any medically
determinable physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than six
months, where such impairment causes the Executive to be unable to perform the
duties of Executive's position of employment or any substantially similar
position of employment.
(d) Good Reason. "Good Reason" hereunder means any of the
following conditions arising without the consent of Executive, provided that
Executive has first given written notice to the Company of the existence of the
condition within 90 days of its first occurrence, and the Company has failed to
remedy the condition within 30 days thereafter:
(i) a material diminution in the Executive's base
salary (other than a reduction permitted by Section 3(a) above
in the case of a general reduction for all executive
officers);
(ii) a material diminution in the Executive's
authority, duties, or responsibilities;
(iii) relocation of Executive's principal office more
than 50 miles from its current location; or
(iv) any other action or inaction that constitutes a
material breach by the Company of any terms or conditions of
this Agreement, which breach has not been caused by Executive.
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15. OTHER POST-TERMINATION OBLIGATIONS.
(a) Other Obligations. In the event of termination of
Executive's employment, the sole obligation of the Company under this Agreement
will be its obligation to make the payments called for by Sections 10, 11 or 13
hereof, as the case may be, and the Company will have no other obligation to
Executive or to Executive's beneficiary or Executive's estate, except as
otherwise provided by law or by the terms of any employee benefit plans or
programs, or of any incentive compensation or stock ownership plans, then
maintained by the Company in which Executive participates.
(b) Immediately upon termination of Executive's employment
with the Company for any reason, Executive will resign all positions then held
as a director or officer of the Company and of any subsidiary, parent or
affiliated entity of the Company.
(c) Upon termination of Executive's employment with the
Company, Executive shall promptly deliver to the Company any and all Company
records and any and all Company property in Executive's possession or under
Executive's control, including without limitation manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, printouts, computer
disks, flash drives or other digital storage media, source codes, data, tables
or calculations and all copies thereof, documents that in whole or in part
contain any trade secrets or confidential, proprietary or other secret
information of the Company and all copies thereof, and keys, access cards,
access codes, passwords, credit cards, personal computers, handheld personal
computers or other digital devices, telephones and other electronic equipment
belonging to the Company.
(d) Following termination of Executive's employment with
the Company for any reason, Executive will, upon reasonable request of the
Company or its designee, cooperate with the Company in connection with the
transition of Executive's duties and responsibilities for the Company; consult
with the Company regarding business matters that Executive was directly and
substantially involved with while employed by the Company; and be reasonably
available, with or without subpoena, to be interviewed, review documents or
things, give depositions, testify, or engage in other reasonable activities in
connection with any litigation or investigation, with respect to matters that
Executive then has or may have knowledge of by virtue of Executive's employment
by or service to the Company or any related entity.
(e) Executive will not malign, defame or disparage the
reputation, character, image, products or services of the Company, or the
reputation or character of the Company's directors, officers, employees or
agents. Officers or Directors of the Company shall not make any public statement
that disparages or defames Executive's reputation or character. Nothing in this
Section 15(e) shall be construed to limit or restrict Executive or the Company
from taking any action that such party in good faith reasonably believes is
necessary to fulfill such party's fiduciary obligations to the Company, from
making any statement internal to the Company's operations for legitimate
business reasons, or from providing truthful information in connection with any
legal proceeding, government investigation or other legal matter.
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16. MISCELLANEOUS.
(a) Tax Withholding. The Company may withhold from any
amounts payable under this Agreement such federal, state and local income and
employment taxes as the Company shall determine are required to be withheld
pursuant to any applicable law or regulation. The Company makes no assurances to
Executive as to the tax treatment of any payments hereunder and, except with
respect to tax amounts withheld by the Company, Executive will be responsible
for payment and remittance of all taxes due with respect to compensation
received or imputed under this Agreement.
(b) Section 409A. This Agreement and the payments hereunder
are intended to be exempt from or to satisfy the requirements of Section
409A(a)(2), (3) and (4) of the Internal Revenue Code of 1986, as amended,
including current and future guidance and regulations interpreting such
provisions, and should be interpreted accordingly.
(c) Governing Law. All matters relating to the
interpretation, construction, application, validity, and enforcement of this
Agreement will be governed by the laws of the State of Minnesota without giving
effect to any choice or conflict of law provision or rule, whether of the State
of Minnesota or any other jurisdiction, that would cause the application of laws
of any jurisdiction other than the State of Minnesota.
(d) Jurisdiction and Venue. Executive and the Company
consent to jurisdiction of the courts of the State of Minnesota and/or the
United States District Court, District of Minnesota, for the purpose of
resolving all issues of law, equity, or fact arising out of or in connection
with this Agreement. Any action involving claims of a breach of this Agreement
must be brought in such courts. Each party consents to personal jurisdiction
over such party in the state and/or federal courts of Minnesota and hereby
waives any defense of lack of personal jurisdiction. Venue, for the purpose of
all such suits, will be in Hennepin County, State of Minnesota.
(e) Waiver of Jury Trial. To the extent permitted by law,
Executive and the Company waive any and all rights to a jury trial with respect
to any dispute arising out of or relating to this Agreement.
(f) Entire Agreement. This Agreement contains the entire
agreement of the parties relating to Executive's employment with the Company and
supersedes all prior agreements and understandings with respect to such subject
matter, including without limitation the Prior Agreement, and the parties hereto
have made no agreements, representations, or warranties relating to the subject
matter of this Agreement that are not set forth herein. The RSU Agreements
remain in full force and effect as amended.
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(g) No Violation of Other Agreements. Executive hereby
represents and agrees that neither (i) Executive's entering into this Agreement
nor (ii) Executive's carrying out the provisions of this Agreement, will violate
any other agreement (oral, written, or other) to which Executive is a party or
by which Executive is bound.
(h) Assignment. This Agreement shall not be assignable, in
whole or in party, by either party without the written consent of the other
party, except that the Company may, without the consent of Executive, assign or
delegate all or any portion of its rights and obligations under this Agreement
to any corporation or other business entity (i) with which the Company may merge
or consolidate, (ii) to which the Company may sell or transfer all or
substantially all of its assets or capital stock, or (iii) of which 50% or more
of the capital stock or the voting control is owned, directly or indirectly, by
the Company or which is under common ownership or control with the Company. Any
such current or future successor, parent, affiliate or other joint venture
partner to which any right or obligation has been assigned or delegated shall be
deemed to be the "Company" for purposes of such rights or obligations of this
Agreement.
(i) Amendments. No amendment or modification of this
Agreement will be effective unless made in writing and signed by the parties
hereto.
(j) Counterparts. This Agreement may be executed by
facsimile signature and in any number of counterparts, and such counterparts
executed and delivered, each as an original, will constitute but one and the
same instrument.
(k) Severability. Subject to Section 8(d) hereof, to the
extent that any portion of any provision of this Agreement is held invalid or
unenforceable, it will be considered deleted herefrom and the remainder of such
provision and of this Agreement will be unaffected and will continue in full
force and effect.
(l) Survival. The provisions of this Agreement that by
their terms or implication extend beyond the Term, including without limitation
Sections 5, 7, 8, 15, and 16 of this Agreement, shall survive the termination or
expiration of the Term and termination of Executive's employment with the
Company for any reason.
(m) Captions and Headings. The captions and paragraph
headings used in this Agreement are for convenience of reference only and will
not affect the construction or interpretation of this Agreement or any of the
provisions hereof.
(n) Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when (i) delivered personally; (ii) sent by facsimile or other similar
electronic device with confirmation; (iii) delivered by reliable overnight
courier; or (iv) three business days after being sent by registered or certified
mail, postage prepaid, and in the case of (iii) and (iv) addressed as follows:
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If to the Company: Buffalo Wild Wings, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer and President
Copy to: EVP, General Counsel and Secretary
If to Executive: Latest address of Executive in the formal records of
the Company
Executive and the Company have executed this Agreement
effective as of the date set forth in the first paragraph.
BUFFALO WILD WINGS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Xxxxx X. Xxxxx
Its: President and Chief Executive Officer
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxxxx X. Xxxxxxx
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