BUFFETS, INC.
EMPLOYMENT AGREEMENT
This Agreement is made as of September 20, 1996 by and between
BUFFETS, INC., a Minnesota corporation (the "Company"), and XXXXX X. XXXXX (the
"Employee").
WHEREAS, the Company has on the date hereof acquired HomeTown Buffet,
Inc., a Delaware corporation ("HomeTown"), pursuant to an Agreement and Plan of
Merger dated June 3, 1996 (the "Merger Agreement") by and among the Company,
HomeTown and County Delaware, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company, whereby Merger Sub was merged with and into HomeTown;
WHEREAS, the Company desires to employ Employee in accordance with the
terms and conditions stated in this Agreement; and
WHEREAS, Employee desires to accept that employment pursuant to the
terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
I. EMPLOYMENT
1.1 EMPLOYMENT. The Company hereby agrees to employ Employee, as
President of the Company, commencing the date hereof and continuing until the
earlier of (i) September 20, 1998, or (ii) the date his employment terminates
pursuant to Article III hereof. Employee accepts such employment pursuant to
the terms of this Agreement. Employee shall perform such duties and
responsibilities as may be determined from time to time by the Chief Executive
Officer of the Company and/or the Board of Directors of the Company, which shall
be consistent with his position as an officer of the Company.
1.2 EXCLUSIVE SERVICES. Employee agrees to devote his full time,
attention and energy to performing his duties and responsibilities to the
Company under this Agreement during the term of this Agreement. The foregoing,
however, shall not preclude Employee from engaging in appropriate civic,
charitable or religious activities or from devoting a reasonable amount of time
to private investments or from serving on the boards of directors of nonprofit
entities, as long as such activities and service do not unreasonably interfere
or conflict with his responsibilities to Company.
1.3 RELOCATION. During the term of his employment hereunder, Employee
shall not be obligated to relocate, without his consent, from the general
vicinity of the Minneapolis metropolitan area.
II. COMPENSATION, BENEFITS AND PERQUISITES
2.1 BASE SALARY. During the period this Agreement is in effect, the
Company shall pay Employee an annual minimum base salary of $200,000. The base
salary shall be payable in accordance with the Company's standard payroll
practices as in effect from time to time. The Board of Directors of the Company
will review the
base salary annually, and may in its sole discretion increase it to reflect
performance, appropriate industry guideline data and other factors.
2.2 BONUS COMPENSATION. Employee shall be entitled to participate in the
Company's current cash bonus program, in accordance with the Company's policies;
provided, however, that the Company shall not be obligated to continue the
existing program or to provide any successor program. With respect to the
Company's current bonus program, Employee shall have an opportunity, based on
meeting established performance criteria, to earn bonus compensation equal to at
least 50% of base compensation.
2.3 STOCK OPTIONS. The Company has granted to Employee stock options
under the Buffets, Inc. 1988 Stock Option Plan (the "Option Plan") to purchase
75,000 shares of the Common Stock of the Company, exercisable at $10.50
(the fair market value at the date of this Agreement as determined under the
Option Plan). The terms and conditions of such options shall be as set forth in
the Company's standard form of stock option agreement.
2.4 VACATIONS. Employee shall be entitled to vacation in accordance with
policies of the Company regarding vacation time as they shall be in effect from
time to time, but not less than three weeks. To the extent that under such
policies vacation benefits are dependent upon the length of employment by the
Company, Employee shall receive full credit for his employment by HomeTown prior
to the date hereof.
2.5 EMPLOYEE BENEFITS. Employee shall be entitled to the benefits which
the Company generally provides to its other executive employees under the
applicable Company plans and policies, and to future benefits made generally
available to executive employees of the Company, except as otherwise expressly
provided herein. Employee's participation in such benefit plans shall be on the
same basis as applies to other executive employees of the Company. With respect
to plans and policies of the Company to which Employee is eligible to
participate, but subject to any limitations contained in such plans and
policies, the Company shall provide Employee with full credit for years of past
service to HomeTown prior to the date hereof. Employee shall pay any
contributions which are generally required of employees to receive any such
benefits.
2.6 EMPLOYMENT TAXES AND WITHHOLDING. As an employee of the Company,
Employee recognizes that the compensation, benefits and other amounts provided
by the Company under this Agreement may be subject to federal, state or local
income taxes. It is expressly understood and agreed that all such taxes shall
be the responsibility of the Employee. To the extent that federal, state or
local law requires withholding of taxes on compensation, benefits or other
amounts provided under this Agreement, the Company shall withhold the necessary
amounts from the amounts payable to Employee under this Agreement.
2.7 EXPENSES. During the term of his employment hereunder, Employee shall
be entitled to receive prompt reimbursement from the Company (in accordance with
the policies and procedures in effect from time to time for the Company's
employees) for all reasonable travel and other expenses incurred by him in
connection with his services hereunder pursuant to the Company's travel and
entertainment policies then in effect.
III. TERMINATION OF EMPLOYEE'S EMPLOYMENT
3.1 TERMINATION OF EMPLOYMENT. Employee's employment under this Agreement
and thereafter may be terminated by the Company at any time for any reason;
provided, however, that if Employee's employment is
terminated by the Company during the term of this Agreement for a reason
other than for cause (as defined in Section 3.2) or for inability to work (as
defined in Section 3.3) or if Employee's employment is terminated by him for
Certain Reasons (as defined in Section 3.4), he shall be entitled to continue
to receive his base salary under Section 2.1 at regular intervals for the
greater of (i) the period commencing on the date of such termination and
ending on September 20, 1998; or (ii) the period commencing on the date of
such termination and of a length equal to 12 months. The termination shall
be effective as of the date specified by the party initiating the termination
in a written notice delivered to the other party, which date shall not be
earlier than the date such notice is delivered to the other party. This
Agreement shall terminate in its entirety immediately upon the death of
Employee. Except as expressly provided to the contrary in this section or
applicable law, Employee's rights to pay and benefits shall cease on the date
his employment under this Agreement terminates.
3.2 CAUSE. For purposes of this Article III, "cause" shall mean the
following: (i) indictment for or conviction of, or a plea of nolo contendere
to, any felony or gross misdemeanor; (ii) commission of an act of fraud, theft
or embezzlement or commission of similar acts involving dishonesty or moral
turpitude; (iii) Employee's failure to devote substantially all of his working
time and efforts during normal business hours to the business of the Company and
its subsidiaries except as otherwise permitted by this Agreement; (iv) knowingly
providing materially misleading information concerning the Company or any of its
subsidiaries to the Company or the Board of Directors of the Company; (v) a
breach by Employee of his obligations under Article IV of this Agreement; or
(vi) Employee's failure to substantially perform his material duties as an
employee of the Company under this Agreement which failure is not cured within
thirty (30) days after written notice from the Board of Directors of the Company
specifying the act(s) of nonperformance.
3.3 DISABILITY. If Employee is unable to perform his duties under this
Agreement as the result of a disability caused by injury or illness and such
disability has continued for a period specified in the Company's general
disability policy, the Board of Directors of the Company may, in its discretion,
determine that Employee is unable to work and terminate his employment under
this Agreement. Upon any such termination for inability to work, Employee shall
be entitled to such disability, medical, life insurance, and other benefits as
may be provided generally for disabled employees of the Company during the
period he remains disabled. As used herein, the term "disability" shall have
the same meaning provided in Section 22(e)(3) of the Internal Revenue Code of
1986, as amended, except for that section's reference to "12 months," which time
period shall instead be as provided in the Company's general disability policy.
In the event of Employee's termination on grounds of inability to work, the
Company shall pay Employee all salary due or accrued as of the date of such
termination, and all accrued vacation pay and bonuses. In addition, following
such termination, the Company shall continue Employee's base salary in
accordance with Section 3.1, but the aggregate amount of such payments shall be
reduced by any amounts received by Employee under any disability plan provided
by the Company.
3.4 CERTAIN REASONS. For purposes of this Agreement, "Certain Reasons"
shall mean (i) a reduction in the cash compensation of Employee (exclusive of
bonuses) or a material reduction in the benefits provided to Employee, except as
part of a salary or benefit reduction program by the Company that is applicable
generally to the executive officers; (ii) a material demotion in
responsibilities or duties of Employee; or (iii) relocation of Employee's
workplace to any place more than fifty miles from the Minneapolis, Minnesota,
Metropolitan Area provided, in each case, that Employee has given written notice
of Employee's intention to terminate for Certain Reasons, citing the Certain
Reason or Reasons and the Company has not cured the Certain Reasons within
thirty (30) days after receipt of the notice.
IV. NON-COMPETITION, CONFIDENTIALITY AND TRADE SECRETS
4.1 AGREEMENT NOT TO COMPETE. In consideration of the covenants and
agreements contained in this Agreement, the Merger Agreement and the Option
Agreement, Employee agrees as follows:
(a) During the period of Employee's continued employment by the
Company or any subsidiary or parent of the Company (for purposes of this
section, the "Company"), Employee will not render services or give advice to,
affiliate with (as employee, partner, consultant or otherwise), or invest or
acquire any interest in, in whole or in significant part, any other person or
organization which is engaged in or about to become engaged in franchising,
developing, owning or operating a restaurant or other food service establishment
that utilizes, in whole or in significant part, a buffet, smorgasbord or
cafeteria service format (a "Conflicting Organization"). Employee shall not,
however, be prohibited from investing in securities of any company that is
listed on a national securities exchange or traded on NASDAQ, provided that
Employee does not hereafter own, or have the right to acquire, more than 3% of
the outstanding voting securities of such company.
(b) During the two-year period commencing immediately after cessation
or termination of Employee's employment with the Company, whether voluntary or
involuntary, with or without cause, Employee will not render services or give
advice to, or affiliate with (as employee, partner, consultant or otherwise) or
invest or acquire any interest in, any Conflicting Organization operating within
twenty-five (25) miles of any location where a Company restaurant is then
currently operating, or where the Company or a present or prospective franchisee
of the Company has leased or purchased, or is then negotiating to lease or
purchase, a site on which it plans to operate a Company restaurant.
Notwithstanding the foregoing, if the business of the Conflicting Organization
has separate and distinct divisions, Employee may, following termination of such
employment, render services or give advice to, or affiliate with, a division
which would not itself constitute a Conflicting Organization if, prior thereto,
the Company receives written assurances satisfactory to the Company from the
Conflicting Organization and Employee that Employee will not directly or
indirectly render services or give advice or information to any division of such
Conflicting Organization which would itself constitute a Conflicting
Organization.
(c) Employee further agrees that, during the periods described in
subparagraphs (a) and (b) of this Section 4.1, Employee will not, directly or
indirectly, assist or encourage any other person to carry out, directly or
indirectly, any activity that would be prohibited by the above provisions of
this Section 4.1 if such activity were carried out by Employee, either directly
or indirectly; and in particular Employee agrees that Employee will not,
directly or indirectly, induce any employee of the Company to carry out,
directly or indirectly, any such activity.
4.2 NON-DISCLOSURE OF INFORMATION. During the period of his employment
hereunder, and at all times thereafter, Employee shall not, without the written
consent of the Company, directly or indirectly (whether through written or
printed materials, electronic media, or oral communications, and whether
Employee's source of information is written or printed materials, electronic
media, oral communications, or his own memory), disclose to any person, other
than an employee of the Company or any of its subsidiaries or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by Employee of his duties as an Employee of the Company and except
where such disclosure may be required by law, or use as owner, director,
officer, manager, trustee, partner, employee, independent contractor, agent, or
consultant in any business venture or other enterprise or endeavor, any material
confidential information obtained by him while in the employ of the Company
with respect to any recipes, know-how or the like, services, customers,
methods or future plans of the Company or any of its subsidiaries (the
"Information"), all of which Employee acknowledges are valuable, special and
unique assets the disclosure of which Employee acknowledges may be materially
damaging. Information under this Section 4.2 does not include information
that is or becomes generally available to the public other than as a result
of a disclosure by Employee or anyone to whom Employee transmits Information.
4.3 REMEDIES. Employee acknowledges that the services that Employee will
provide to the Company under this Agreement are unique and that irreparable harm
will be suffered by the Company in the event of the breach by Employee of any of
Employee's obligations under this Agreement, and that the Company will be
entitled, in addition to its other rights, to enforce by an injunction or decree
of specific performance the obligations set forth in this Agreement. Any claims
asserted by Employee against the Company shall not constitute a defense in any
injunction action brought by the Company to obtain specific enforcement of this
Agreement.
4.4 COVENANTS REASONABLY NECESSARY. Employee represents and warrants for
the benefit of the Company that the covenants in this Agreement are reasonably
necessary for the protection of the Company's interests under this Agreement and
the Merger Agreement and are not unduly restrictive upon Employee.
V. MISCELLANEOUS
5.1 AMENDMENT. This Agreement may be amended only in writing, signed by
both parties.
5.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to its subject matter and supersedes all prior
agreements and understandings, oral or written, between the parties; all prior
agreements regarding the subject matter of this Agreement are hereby terminated.
5.3 ASSIGNMENT. The Company may in its sole discretion assign this
Agreement to any entity which succeeds to some or all of the business of the
Company through merger, consolidation, a sale of some or all of the assets of
the Company, or any similar transaction. Employee acknowledges that the
services to be rendered by him are unique and personal. Accordingly, Employee
may not assign any of his rights or obligations under this Agreement.
5.4 SUCCESSORS. Subject to Section 5.3, the provisions of this Agreement
shall be binding upon the parties hereto, upon any successor to or assignee of
the Company, and upon Employee's heirs and the personal representative of
Employee or Employee's estate.
5.5 NOTICES. Any notice required to be given under this Agreement shall
be in writing and shall be delivered either in person or by certified or
registered mail, return receipt requested. Any notice by mail shall be
addressed as follows:
If to the Company, to:
Buffets, Inc.
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chairman and CEO
With a copy to: H. Xxxxxx Xxxxxxxx, Corporate Counsel
If to Employee, to:
Xxxxx X. Xxxxx
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
or to such other addresses as either party may designate in writing to the other
party from time to time.
5.6 WAIVER OF BREACH. Any waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent
breach by such party of a provision of this Agreement.
5.7 SEVERABILITY. If any one or more of the provisions (or portions
thereof) of this Agreement shall for any reason be held by a final determination
of a court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions (or portions of the provisions) of this Agreement, and the
invalid, illegal or unenforceable provisions shall be deemed replaced by a
provision that is valid, legal and enforceable and that comes closest to
expressing the intention of the parties hereto.
5.8 GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Minnesota, without giving effect to
conflict of law principles.
5.9 HEADINGS. The headings of articles and sections herein are included
solely for convenience and reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
5.10 COUNTERPARTS. This Agreement may be executed by either of the parties
hereto in counterparts, each of which shall be deemed to be an original, but all
such counterparts shall constitute a single instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
BUFFETS, INC.
By /s/ XXX X. XXXXXX
--------------------------------
Its CHAIRMAN & CEO
EMPLOYEE
/s/ XXXXX X. XXXXX
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