EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made effective
as of ____, 1997 (the "Effective Date"), between Garden Fresh Restaurant Corp.,
a Delaware corporation, hereinafter referred to as "Garden Fresh", and _______
_______, hereinafter referred to as "Employee."
In consideration of the promises and of the mutual covenants
contained herein, and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Employment. Garden Fresh hereby affirms its employment of Employee,
and Employee hereby affirms such employment, upon the terms and
conditions set forth below.
2. Duties. Employee is engaged in the position of _______________
_____________________________________. Employee shall faithfully and
diligently perform the duties customarily performed by persons in the
position for which Employee is engaged, together with such other
duties as the Board of Directors (the "Board") of Garden Fresh shall
designate from time to time. As part of Employee's duties, Employee
acknowledges and understands that: (a) Employee will devote utmost
knowledge and best skill to the performance of his duties; (b)
Employee shall devote his full business time to the rendition of such
services, subject to absences for customary vacations and for
temporary illness; and (c) Employee will not engage in any other
gainful occupation which requires his personal attention without
prior consent of the Board with the exception that Employee may
personally trade in publicly traded stocks, bonds, commodities or
real estate investments for his own benefit.
3. Compensation.
3.1 Base Salary. As compensation for the proper and satisfactory
performance of all duties to be performed by Employee hereunder,
Garden Fresh shall pay Employee a base salary as determined by
the Compensation Committee of the Board of Directors from time to
time, but in no event less than $_______ per year (the "Base
Salary").
3.2 Bonus Plan. The Board or Compensation Committee shall adopt an
incentive bonus plan, for which Employee shall be eligible and
the terms of which shall be incorporated herein by reference.
3.3 Salary Increase and Bonus Plan. The Board shall develop and
implement a plan under which it, or the Compensation Committee
thereof, will evaluate Employee's performance on not less than an
annual basis and, if warranted, grant Employee increases in Base
Salary and/or additional bonus compensation based on such
evaluations. Actions of the Compensation Committee with respect
to such increases shall automatically be incorporated by
reference into this Agreement.
3.4 Customary Fringe Benefits. Employee shall be entitled to such
fringe benefits as Garden Fresh customarily makes available to
executive employees of Garden Fresh ("Fringe Benefits"). Such
Fringe Benefits may include vacation leave, sick leave, and
health insurance coverage.
4. Term. The employment term pursuant to this Agreement shall commence
on the Effective Date set forth above, and shall remain in effect
until Employee's employment is terminated in accordance with the
provisions of Section 5 below. It is understood that Employee serves
at the will of the Board of Directors of the Company and that he
shall be considered an "at will" Employee.
5. Termination. This Agreement and the employment of Employee shall
terminate under the following conditions:
5.1 Death. The death of Employee.
5.2 Disability. The permanent disability of Employee (permanent
disability shall exist when Employee suffers from a condition of
mind or body that indefinitely prevents Employee from
satisfactory further performance of his duties, even with
reasonable accommodation, for a cumulative period of 120 business
days in any consecutive 12-month period following the
commencement of employment).
5.3 Termination for Good Cause. Upon receipt by Employee of written
notice from Garden Fresh that Employee's employment is being
terminated for "good cause." Garden Fresh has "good cause" to
terminate Employee's employment if Employee has engaged in one or
more of the following:
5.3.1 Commission of a felony which results in conviction.
5.3.2 Breach of the provisions of Section 8 hereof or of any
material provision of the Employee Inventions and
Proprietary Rights Assignment Agreement entered into
between the Company and Employee ("Proprietary Rights
Agreement").
5.4 Resignation. Employee may resign at any time during the term of
this Agreement provided that Employee is required to provide two
(2) months advance notice of his resignation to Garden Fresh.
Garden Fresh may waive some or all of that notice period at its
sole discretion and must pay Employee only for the time he
actually continues in the employment of Garden Fresh.
5.5 Termination for Other Than Good Cause. Garden Fresh may
terminate Employee's employment at any time without good cause,
upon written notice delivered to Employee that Employee's
employment is being terminated for "other than good cause." It
shall be deemed a termination by Garden Fresh without good cause
under this Section 5.5 if Employee (i) resigns within thirty (30)
days of the date on which, without his consent, he no longer
holds the position of Chief Executive Officer and President of
Garden Fresh, or (ii) resigns due to his being required to
relocate to a workplace outside California.
6. Compensation Upon Termination.
6.1 Payment Upon Death or Disability. In the event this Agreement is
terminated pursuant to Sections 5.1 or 5.2, Employee (or his
estate in the case of death) shall be entitled to a lump-sum
payment equal to two (2) months of Employee's then current Base
Salary.
6.2 Payment of Compensation Upon Termination for Good Cause. In the
event Employee is terminated for good cause, as set forth in
Section 5.3, he shall receive two (2) weeks notice that his
employment is terminated and Employee shall be entitled only to
the compensation set forth as Base Salary herein, prorated
through the date of his termination as set forth in said notice
plus any other benefits required by law. When Employee is
terminated for good cause as defined in Section 5.3, Employee is
entitled to no other severance compensation arising out of this
Agreement and out of his employment relationship with Garden
Fresh, and Employee shall permanently and absolutely forfeit all
rights to all other severance benefits otherwise accruing by
reason of Employee's employment by Garden Fresh.
6.3 Payment of Compensation Upon Termination Other Than for Good
Cause. In the event Employee's employment is terminated for
other than good cause, as set forth in Section 5.5, Employee
shall receive severance compensation pursuant to this Section,
only if Employee executes a general release of claims, releasing
any and all claims Employee has against Garden Fresh arising out
of his employment or the termination of said employment.
Employee is not entitled to any severance compensation pursuant
to this Section unless he signs the general release described
above. The severance compensation provided by this Section shall
be six (6) monthly payments, payable in arrears, commencing one
(1) month after the effective date of the termination in the
amount equal to Employee's then current monthly Base Salary (plus
benefits and 1/12 of Employee's prior year's bonus). Except as
provided in Section 6.3 and, if applicable, Section 6.4, Employee
is entitled to no other severance compensation when his
employment is terminated for other than good cause.
6.4 Payment Upon Change in Control. If within eighteen (18) months
of a Change in Control, as that term is defined herein, (the
"Transition Period") Employee's employment is terminated for
other than good cause, as set forth in Section 5.5, or Employee
refuses to accept or voluntarily resigns from a position other
than a Qualified Position, as that term is defined below, in
addition to any amounts which may be due to Employee pursuant to
Section 6.3, Employee shall receive in one lump sum severance
compensation in an amount equal to two (2) years of his Base
Salary (as of the date of the change of control) plus (two) 2
year's bonus (based on the bonus received for the last full
fiscal year immediately preceding the Change of Control). A
"Change in Control" means the acquisition, directly or indirectly
of more than 50% of the outstanding shares of any class of voting
securities of Garden Fresh by any person or entity or a merger,
consolidation or sale of all or substantially all of the assets
of Garden Fresh, such that the individuals constituting the Board
of Garden Fresh immediately prior to any such occurrence shall
cease during the Transition Period to constitute a majority of
the Board, unless the election of each director who was not a
director prior to the Transition Period was approved by vote of
at least two-thirds of the directors then in office who were
directors prior to the Transition Period. Notwithstanding the
foregoing, an acquisition of the requisite percentage of voting
securities in connection with a public offering of securities by
Garden Fresh for the primary purpose of providing capital
resources to Garden Fresh shall not be considered a "Change in
Control" for purposes of this Section 6.4. A "Qualified
Position" is an executive officer position with the entity
surviving the Change in Control, with substantially the same
responsibilities as those held by the Employee as of the date of
this Agreement, which position reports directly to the Board of
Directors of the "Ultimate Parent Entity," as that term is
defined in the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, of the entity surviving the Change in Control. Also
notwithstanding the foregoing, if Garden Fresh determines that
the amounts payable to Employee under this Agreement, when
considered together with any other amounts payable to Employee as
a result of a Change in Control, cause such payments to be
treated as excess parachute payments within the meaning of
Section 280G of the Internal Revenue Code, Garden Fresh shall
reduce the amount payable to Employee under this Section 6.4 to
an amount that will not subject Employee to the imposition of tax
under Section 4999 of the Internal Revenue Code.
7. Arbitration/Sole Remedy for Breach of Agreement. In the event of any
dispute between Garden Fresh and Employee concerning any aspect of
the employment relationship, including any disputes upon termination,
all such disputes shall be resolved by binding arbitration before a
single neutral arbitrator in San Diego. The arbitrator shall be
selected from the American Arbitration Association. The arbitrator
is bound to rule only on whether or not there has been a violation of
the terms of this Agreement and to render an award, if any, that is
consistent with the terms of this Agreement. Neither party to this
Agreement is entitled to any legal recourse or rights or remedies
other than those provided within this Agreement. The Employee's sole
remedies for claims arising out of his employment, with the exception
of workers' compensation remedies, are those set forth in this
Agreement. In the event of a termination of employment, the
arbitrator is limited to a determination of whether or not the
discharge was for good cause or for other than good cause. If an
arbitration is brought for something other than a termination of
employment, the arbitrator is limited to award contract damages.
Garden Fresh shall bear the costs of the arbitration, including
arbitrator's fees and the reasonable fees of one counsel for Employee
if the dispute primarily relates to the applicability of the
provisions set forth in Section 6.4.
8. Covenant Not to Compete. Employee agrees that, during Employee's
employment, and during any period with respect to which payments to
Employee are made pursuant to Section 5.4 or Section 6, Employee will
not directly or indirectly compete with Garden Fresh in any way, or
prepare to compete or assist any other person or entity to compete
with Garden Fresh in any way, and that Employee will not act as an
officer, director, employee, consultant, more than one-percent
shareholder, significant lender, or agent of any other entity which
is engaged in any business of the same nature as, or in competition
with, the business in which Garden Fresh is now engaged or in which
Garden Fresh becomes engaged during the term of Employee's
employment.
9. General Provisions.
9.1 Payments. All payments due pursuant to the terms of this
Agreement shall be delivered in person, or by first-class mail,
postage prepaid to the last known address of the other party.
Payments may be in lawful money of the United States, or may be
made by check, draft or warrant of the paying entity. Any
payments made pursuant to Section 5.4 or Section 6 hereof shall
be made by certified or cashier's check and shall be delivered
pursuant to the terms of Section 9.2.
9.2 Notices and Delivery. Any notices to be given hereunder by
either party to the other may be effected by either personal
delivery in writing, or by mail, registered or certified, postage
prepaid with a return receipt requested. Mailed notices shall be
addressed to the other party to the address appearing beneath the
party's signature on this Agreement, but each party may change
its address by written notice in accordance with this paragraph.
Notices shall be deemed communicated as of the date of delivery.
9.3 Complete Agreement. Employee acknowledges receipt of this
Agreement and agrees that this Agreement, along with the
Proprietary Rights Agreement, represents the entire Agreement
with Employer concerning the subject matter hereof. This
Agreement supersedes any and all other Agreements, either oral or
in writing, between the parties hereto with respect to the
matters discussed herein of Employee and contains all of the
covenants and agreements between the parties with respect to the
terms and conditions of Employee's employment. Each party to
this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by
any party or anyone acting on behalf of any party which are not
embodied herein.
9.4 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in
any way.
9.5 Other Benefits. Any amounts payable under this Agreement, other
than Base Salary, shall not be deemed salary or other
compensation for the purpose of computing benefits under any
pension plan or other arrangement of Garden Fresh for the benefit
of its employees.
9.6 No Waiver. Either party's failure to enforce any provision of
this Agreement shall not in any way be construed as a waiver of
any such provision, or prevent that party from thereafter
enforcing each and every other provision, or prevent that party
from thereafter enforcing each and every other provision of this
Agreement.
9.7 Successors and Assigns. The rights and obligations of Garden
Fresh under this Agreement shall enure to the benefit of and
shall be binding upon the successors and assigns of Garden Fresh.
Employee shall not be entitled to assign any of his rights or
obligations under this Agreement.
9.8 Applicable Law. This Agreement shall be interpreted, construed,
governed and enforced in accordance with the laws of the State of
California.
9.9 Amendments. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in subsequent
writing and signed by the parties thereto.
IN WITNESS WHEREOF, the parties hereto execute this Agreement,
effective as of the date first above written.
EMPLOYEE: GARDEN FRESH RESTAURANT CORP.
a Delaware corporation
By:
_______________________ ________________________________
__________________________
Address: ____________________ Address: Garden Fresh Restaurant Corp.
____________________ 00000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
